Opinion
21-CV-8390 (LTS)
11-05-2021
DAVID STALLING, Plaintiff, v. FINRA, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff brings this pro se action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1981. He alleges that he was not hired because of discrimination against him based on his race and sex, and that he was retaliated against for contacting the employer's ombudsman during the application process. By order dated October 22, 2021, 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 in forma pauperis 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
In September 2020, Plaintiff David Stalling applied for a position, which he does not identify, at the Financial Industry Regulatory Authority (FINRA) in Manhattan. Plaintiff states that he has “no fixed abode” (ECF 2 at 2), and the complaint includes information suggesting that Plaintiff resides in Manhattan (id. at 2), or in Pennsylvania (ECF 2-1 at 1). Plaintiff makes the following allegations:
[C]orrespondence began with a FINRA position and I was told and I was told to communicate with him during the processing of my application. After corresponding and providing him with detailing information upon request, still the
progress was static. During January 2021 I was asked respond to 4 questions. I then asked him to provide me with his supervisor contact information. After another employee contacted me randomly who was not the overseer of the application process, then I asked her for the application supervisor contact information, after she fulfilled my request I contacted Kelly Unger and explained to her my issue. I was told to answer the same 4 questions by a specific date. I then contacted FINRA / Office of Ombudsman and the representative contacted FINRA in regards to my application. I then provided the application team with the requested information. Afterwards, my application was denied.(ECF 2 at 6.) Plaintiff also writes on the complaint form that he was discriminated against because of his black race and color “After Providing Social Media Profile” and that he was discriminated because of sex because he was “Denied By A Female.” (Id. at 3.) He further alleges that he was retaliated against for contacting the Office of the Ombudsman. (Id.)
The Court quotes the complaint verbatim, with all punctuation and errors in the original.
Plaintiff attaches to the complaint a notice of right to sue from the Equal Employment Opportunity Commission, which is dated September 30, 2021. (ECF 2-1 at 1.) He states that he received the notice on the same day that it issued. (ECF 2 at 7.)
DISCUSSION
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).
Similarly, a plaintiff bringing a Section 1981 claim for employment discrimination must plausibly allege sufficient facts to demonstrate that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the adverse action took place under circumstances giving rise to the inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
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; see also McDowell v. North Shore-Long Island Jewish Health Sys., Inc., 788 F.Supp.2d 78, 81 (E.D.N.Y. 2011) (“At the pleading stage of a Section 1981 discrimination claim, the Court does not apply the familiar McDonnell Douglas burden shifting test used to analyze the evidentiary support for discrimination claims, but rather generally assesses the plausibility of the plaintiff's claim based on the facts alleged.”).
Here, Plaintiff alleges that FINRA did not hire him, but he does not plead any facts that give rise to an inference that his race or sex were motivating factors in that decision. For example, Plaintiff does not allege any facts about the position for which he applied and whether he was qualified for the position. The fact that Plaintiff was “denied by a female, ” by which he seems to mean that a female FINRA employee was the hiring decisionmaker, does not give rise to an inference that Plaintiff was discriminated against based on sex. Plaintiff's allegation that he shared his social media profile with an unidentified person at FINRA might be relevant, insofar as it suggests that someone at FINRA might have been aware of Plaintiff's race if his race was apparent from his social media account. Nevertheless, this allegation is insufficient to state a claim that race motivated the decision not to hire Plaintiff.
Plaintiff's allegation that he was retaliated against for contacting FINRA's ombudsman, without any information about why he contacted the ombudsman or what concerns he raised, is also inadequate to give rise to an inference of discrimination based on protected activity. Plaintiff thus fails to state a claim on which relief can be granted, whether under Title VII or Section 1981.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim under Title VII or Section 1981, the Court grants Plaintiff sixty days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against the defendant. If Plaintiff has an address for the defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what the defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations 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 wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
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 21-CV-8390 (LTS). 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.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
Plaintiff has not provided a mailing address or consented to receive electronic service of documents. The Court encourages Plaintiff to file a consent to receive electronic service if he has the means to receive documents electronically, such as on a phone or computer.
SO ORDERED.