Opinion
5:22-cv-762(BKS/TWD)
07-29-2022
JERAMIAH BROWN, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
JERAMIAH BROWN Plaintiff, pro se.
JERAMIAH BROWN Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
Jeramiah Brown (“Plaintiff”) initiated this action pro se on July 20, 2022, asserting claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., against United Parcel Service, Inc. (“UPS” or “Defendant”). (Dkt. No. 1.) Plaintiff simultaneously moved to proceed in forma pauperis (“IFP”) and for the appointment of pro bono counsel. (Dkt. Nos. 2-3.) The Clerk sent Plaintiff's Complaint, IFP Application, and request for the appointment of counsel to the undersigned for initial review. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff's IFP Application is granted for purposes of this review. (Dkt. No. 2.) Plaintiff's request for the appointment of counsel is denied without prejudice. (Dkt. No. 3.) For the reasons discussed below, the undersigned recommends that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend. (Dkt. No. 1.) 1
The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021).
Plaintiff is disabled due to thrombocytopenia-absent radius syndrome, irritable bowel syndrome, traumatic brain injury, and chronic illness. (Dkt. No. 1 at 2.) In the fall of 2021, Plaintiff applied for a job as a Personal Seasonal Delivery Driver with UPS. Id. at 3; Dkt. No. 11 at 13. When he arrived at training, one UPS employee ignored him, and another “made remarks” about his appearance. (Dkt. No. 1-1 at 13-14.) During a driving test, another UPS employee asked Plaintiff questions about his disability-including whether his disability prevented him from reaching the steering wheel of his car, handling packages, and quickly opening and closing the car door during deliveries. Id. at 16. Although Plaintiff passed the driving test, he was told he would not be hired as a Personal Seasonal Delivery Driver with UPS because he was a “[s]afety hazard.” Id. A UPS employee nonetheless told Plaintiff that Defendant would consider him for other employment opportunities. Id. UPS never hired Plaintiff. See generally id.
Based on this series of events, Plaintiff appears to advance three claims against UPS: discriminatory discharge, failure to accommodate, and retaliation. (Dkt. No. 1 at 3.) Plaintiff claims UPS wrongfully terminated him based on a “driving test that no other drivers had to take” that “was administered unsafely.” Id. He claims the UPS employees laughed at him “due to his appearance,” “made remarks to [him] about his size, weight, height, and capability of fulfilling job tasks,” harassed him, and required him to take this test because of his “appearance, [d]isability, and skull abnormalities.” Id. 2
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must accordingly construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). 3 “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
III. SUFFICIENCY OF THE COMPLAINT
Plaintiff's Complaint should be dismissed because it fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff has failed to adequately plead his claims for discriminatory discharge, failure to accommodate, and retaliation. The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend.
A. Discriminatory Discharge
The ADA prohibits covered employers from discriminating against “a qualified individual on the basis of disability in regard to,” among other things, “the hiring . . . or discharge of employees.” 42 U.S.C. § 12112(a); see generally 42 U.S.C. §§ 12111(2), (5) (defining “Covered entity” and “Employer”). To establish aprima facie case of discriminatory discharge under the ADA, a claimant must show: “(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020); Reeves v. Johnson Controls WorldServs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998).
Construing Plaintiff's discriminatory discharge claim liberally, see Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes he failed to adequately plead the third element of his claim, see 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff did not adequately allege he was qualified to perform the essential functions of the Personal Seasonal Delivery Driver position with UPS. (See generally Dkt. No. 1.) Plaintiff alleged he passed the driving test, but this allegation does 4 not give rise to a reasonable inference that he was qualified to perform all essential functions of the job he sought. See id. Plaintiff advanced no allegations about what the job requirements were and whether he met them. See id. Nor did he advance any allegations concerning reasonable accommodations that could have been made to allow him to adequately perform the job. See id. Because Plaintiff failed to adequately plead his discriminatory discharge claim, the undersigned recommends that the Court dismiss the claim with leave to amend. 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Failure to Accommodate
The ADA prohibits covered employers from discriminating against a “qualified individual on the basis of disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). This extends to an employer's failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C. § 12112(b)(5)(A); see also McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). To make out a prima facie case of failure to accommodate under the ADA, a claimant must show: “(1) the plaintiff is a person with a disability for purposes of the ADA; (2) an employer covered by the statute had notice of the plaintiff's disability; (3) with reasonable accommodation, the plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such an accommodation.” Laguerre v. Nat'l Grid USA, No. 20-3901-CV, 2022 WL 728819, at *1 (2d Cir. Mar. 11, 2022); Frantti v. New York, 850 Fed.Appx. 17, 19 (2d Cir. 2021).
Construing Plaintiff's failure to accommodate claim liberally, see Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes he failed to adequately plead the third and fourth elements of his claim, see 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff made no allegation about the 5 reasonable accommodation (or accommodations) Defendant could have made to permit him to perform the duties of a Personal Seasonal Delivery Driver, nor did he advance allegations concerning the existence of an alternative vacant job he was qualified to perform. (See generally Dkt. No. 1; see also McBride, 583 F.3d at 97 (“The plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment, including the existence of a vacant position for which she is qualified.”).) Moreover, Plaintiff did not allege he specifically requested an accommodation, nor did he allege Defendant refused such a request. (See generally Dkt. No. 1; see, e.g., Frantti, 850 Fed.Appx. at 20 (dismissing plaintiff's claim where there was “no evidence in the record that [he] requested these accommodations from his employer.”).) Because Plaintiff failed to adequately plead his failure to accommodate claim, the undersigned recommends that the Court dismiss the claim with leave to amend. 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Retaliation
The ADA prohibits covered employers from discriminating “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a); see also Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). To make out aprimafacie case of retaliation under the ADA, a claimant must show: “(1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Treglia, 313 F.3d at 719; see also Frantti, 850 Fed.Appx. at 21. “A plaintiff's burden at this prima facie stage is de minimis” Treglia, 313 F.3d at 719. 6
Construing Plaintiff's retaliation claim liberally, see Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes he failed to adequately plead the first and fourth elements of his claim, see 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff failed to allege he engaged in a protected activity under the ADA. (See generally Dkt. No. 1.) As explained above, Plaintiffs Complaint lacks any allegation that he requested an accommodation from Defendant. See id. Plaintiffs Complaint also lacks any allegation that he complained to Defendant of disability discrimination before Defendant's hiring decision. See id.; see, e.g., Frantti, 850 Fed.Appx. at 21 (concluding an email plaintiff sent to the defendant did not constitute a protected activity “because [Franti] . . . neither complains of discrimination nor seeks an accommodation.”). Absent some allegation that Plaintiff engaged in a protected activity before Defendant's hiring decision, there is no reasonable inference of causation-there can be no causal connection if the protected activity, the fundamental precipitating event, never occurred. See generally Treglia, 313 F.3d at 720 (“In order to establish the last element of a prima facie case of retaliation, Treglia must show that the allegedly adverse actions occurred in circumstances from which a reasonable jury could infer retaliatory intent.”). Plaintiff accordingly failed to adequately plead the causation element of his retaliation claim. Because Plaintiff failed to adequately plead his retaliation claim, the undersigned recommends that the Court dismiss the claim with leave to amend. 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. REQUEST FOR THE APPOINTMENT OF COUNSEL
Although civil litigants do not have a constitutional right to the appointment of counsel, “[t]he court may request an attorney to represent any person unable to afford counsel.” See 28 U.S.C. § 1915(e)(1); see also Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (“A party has no constitutionally guaranteed right to the assistance of counsel in a 7 civil case.”). A court's power to request such assistance “must be understood to guarantee indigents meaningful access to the courts as required by the Constitution.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). In addition, the voluntary assistance of counsel aids the Court, the pro se litigant, and the opposing parties by relieving the Court of duty in “the uncomfortable role of a quasi-advocate.” See Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997).
“In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.” Hodge, 802 F.2d at 61; see also Dolan v. Connolly, 794 F.3d 290, 296-97 (2d Cir. 2015). “If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.” Hodge, 802 F.2d at 61-62; see also Dolan, 794 F.3d at 296-97.
The undersigned concludes it is “too early in this action to determine whether [Plaintiff's] claim is likely to be of substance.” See Genao v. City of New York, No. 20-CIV-6507 (PGG) (SLC), 2022 WL 1115563, at *4 (S.D.N.Y. Apr. 14, 2022); see also Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204-05 (2d Cir. 2003) (concluding appointment of counsel “would have been inappropriate” because plaintiff's claim “was not likely to be of substance”). The undersigned cannot evaluate the substance of Plaintiff's claims because he has failed to adequately plead them. Moreover, Plaintiff's request for the appointment of counsel indicates he contacted two law firms. (See Dkt. No. 3.) This does not assure the undersigned that Plaintiff was “unable to obtain counsel.” Hodge, 802 F.2d at 61 (“In our view, the language of the statute 8 itself requires that the indigent be unable to obtain counsel before appointment will even be considered.”). Accordingly, the undersigned denies Plaintiff's request for the appointment of pro bono counsel without prejudice. (Dkt. No. 3.) Plaintiff may renew his request for the appointment of pro bono counsel when the Court is better able to determine whether he is likely to have some chance of success on his claims, and if he can demonstrate that he is unable to obtain counsel. See, e.g., Genao, 2022 WL 1115563, at *4.
Plaintiff is advised that he may seek assistance from one of the Lawyer Referral Services or Legal Aid Services listed on the website for the United States District Court for the Northern District of New York at https://www.nynd.uscourts.gov/legal-aid-referral-services. In addition, the Court has a Pro Se Assistance Program which can be reached at 877-422-1011 or prose@ndnyfcba.org.
V. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend. (Dkt. No. 1.) Plaintiff's IFP Application is granted for purposes of this review. (Dkt. No. 2.) Plaintiff's request for the assistance of counsel is denied without prejudice. (Dkt. No. 3.)
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED solely for purposes of initial review; and it is further
ORDERED that Plaintiff's request for the appointment of counsel (Dkt. No. 3) is DENIED without prejudice; and it is further 9
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a). 10
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).