Opinion
20-CV-10710 (LLS)
01-07-2021
RICHARD SMITH, Plaintiff, v. HOMES FOR THE HOMELESS, Defendant.
ORDER TO AMEND
LOUIS L. STANTON, United States District Judge
Plaintiff brings this pro se action under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State and City Human Rights Laws, alleging that his employer discriminated against him based on his race and color. The Court construes the complaint as also asserting claims under 42 U.S.C. § 1981. By order dated December 28, 2020, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”). For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, Id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings his claims using the court's Employment Discrimination Complaint form. He checks the box to assert that his employer discriminated against him on the basis of his race and color. The “facts” section of the complaint form states in its entirety: “On several occasion[s] I was called a racist term, written up false[ly], harassed and terminated due to false allegations. Employment laws and rights were violated.” (ECF No. 2, at 5.)
The complaint is written with irregular capitalization. For readability, the Court uses standard capitalization.
Plaintiff checks boxes on the form to indicate that he filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and that the EEOC issued a Notice of Right to Sue, but he does not provide the dates that he filed the charge or received the Notice, and he does not attach the Notice to the complaint.
He seeks money damages.
DISCUSSION
A. Title VII Pleading Requirements
Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a). Section 1981 prohibits discrimination in the making and enforcing of contracts, including employment contracts, “on account of [a person' s] race, ancestry, or ethnic characteristics.” Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987).
These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s], ” “resist[s], ” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka v. City of New York, 513 Fed.Appx. 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. at 87.
Plaintiff's allegations are insufficient to state a claim under Title VII or § 1981. He does not allege facts suggesting that his employer took adverse action against him because of a protected characteristic. Plaintiff alleges that he was called a racist term on several occasions, but he does not state who used the derogatory term or when those incidents occurred. Nor does Plaintiff identify his race. He further asserts that he was written up and terminated due to “false allegations, ” but he alleges no facts suggesting that his employer took these actions because of race.
B. Exhaustion of Administrative Remedies
As a precondition to filing suit under Title VII, a plaintiff must first file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(e); see also Chin v. Port Auth. of N.Y. &N.J., 685 F.3d 135, 146 (2d Cir. 2012). In New York, this charge must be filed with the EEOC within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2); see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 (2d Cir. 1999). This requirement functions as a statute of limitations, Van Zant v. KLM Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996), and a claim is time-barred when a plaintiff fails to file a timely charge with the EEOC, see Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (“When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred.”); see also Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (affirming dismissal of ADA claim as time-barred for failure to file timely EEOC charge). The time limits, however, are not jurisdictional and, therefore, are subject to equitable tolling. See Morgan, 536 U.S. at 113 (citing to Zipes v. Trans. World Airlines, Inc., 455 U.S. 385, 393 (1982)). Dismissal may be appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal under 28 U.S.C. § 1915(d) on statute of limitations grounds); Baker v. Cuomo, 58 F.3d 814, 81819 (2d Cir. 1995) (sua sponte dismissal is “appropriate if it appears from the face of the complaint that the action is barred . . . by the statute of limitations”), vacated in part on other grounds, 85 F.3d 919 (2d Cir. 1996).
Equitable tolling of the statute of limitations is “only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass, 333 F.3d at 80 (internal quotation marks, alteration, and citations omitted). To obtain the benefit of equitable tolling, a plaintiff must show (1) that he acted with reasonable diligence during the time period tolled, and (2) that extraordinary circumstances justify the application of the doctrine. Id.
Plaintiff checks boxes on the complaint form to indicate that he filed a charge of discrimination with the EEOC and that he received a Notice of Right to Sue. But because he fails to indicate the dates on which he filed the charge and received the Notice, the Court cannot determine if this complaint as timely filed. Therefore, should he choose to amend his complaint to detail any discrimination claims he may have, he should also allege facts regarding the dates on which he filed a charged with the EEOC and received the Notice of Right to Sue, or that the charge-filing period should be equitably tolled because he acted diligently and extraordinary circumstances prevented him from filing a timely charge with the EEOC.
As a general rule, a plaintiff must commence a civil action within ninety days of receipt of notice of dismissal or termination of proceedings by the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984). Although equitable considerations may apply under specified circumstances - such as when Plaintiff has received inadequate notice from the EEOC, where affirmative misconduct on the part of a defendant lulled the Plaintiff into inaction, or if Plaintiff has relied on the court's assurances, Id. at 151-52 - “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants, ” Id. at 152.
C. Leave to Amend
Plaintiff is granted leave to amend his complaint to detail his claims. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief. Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint.
D. Consent to Electronic Service and Information About NYLAG Clinic
In light of the current global health crisis, parties proceeding pro se are encouraged to submit all filings by email to TemporaryProSeFiling@nysd.uscourts.gov. Instructions for filing by email are located at https://nysd.uscourts.gov/forms/instructions-filing-documents-email. Pro se parties also are encouraged to consent to receive all court documents electronically. A consent to electronic service form is available on the Court's website. Pro se parties who are unable to use email may submit documents by regular mail or in person at a drop box at one of the designated courthouse locations in Manhattan (500 Pearl Street) or White Plains (300 Quarropas Street). For more information, including instructions on this new email service for pro se parties, please visit the Court's website at https://www.nysd.uscourts.gov.
Also, Plaintiff may consider contacting the New York Legal Assistance Group's (NYLAG) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this Court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently only available by telephone.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 20-CV-10710 (LLS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
SO ORDERED.