Opinion
5:22-cv-762 (BKS/TWD)
10-12-2022
JERAMIAH BROWN, Plaintiff, v. UNITED PARCEL SERVICE, INC., et al., Defendants.
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”). (Dkt. No. 1.) Conducting an initial review pursuant to 28 U.S.C. § 1915(e)(2)(B), the undersigned recommended that the Court dismiss the Complaint in its entirety for failure to state a claim. (See Dkt. No. 6; Brown v. United Parcel Serv., Inc., No. 5:22-CV-762 (BKS) (TWD), 2022 WL 3017366 (N.D.N.Y. July 29, 2022), report and recommendation adopted, 2022 WL 4077775 (N.D.N.Y. Sept. 6, 2022) (hereinafter, Dkt. No. 6).) The Court adopted the undersigned's recommendation and dismissed Plaintiff's Complaint with leave to amend. (See Dkt. No. 8; Brown v. United Parcel Serv. Incorp., No. 5:22-CV-762 (BKS) (TWD), 2022 WL 4077775, at *1 (N.D.N.Y. Sept. 6, 2022) (hereinafter, Dkt. No. 8).)
On or about September 20, 2022, Plaintiff filed his First Amended Complaint (“FAC”), naming UPS, D. Scott Davis, Ashley Janisch, and Robert Milne as defendants (collectively, “Defendants”). (Dkt. No. 9.) Through the FAC, Plaintiff repeats many of the factual allegations contained within his initial Complaint. Compare id. at 6-14, with Dkt. No. 1; see generally Dkt. No. 6. Based on those allegations, Plaintiff appears to advance three causes of action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.: (1) hostile work environment, (2) discriminatory discharge, and (3) retaliation. (See Dkt. No. 9 at 12-14.) Plaintiff's FAC also contains a motion to seal portions of the record, an objection to the undersigned's Order and Report-Recommendation, and a motion to convene a panel of three judges. See id. at 15-17.
For the reasons discussed below, Plaintiff's motion to seal is denied, and the undersigned recommends that the Court overrule Plaintiff's objection as untimely and moot, deny Plaintiff's request for a panel of three judges, dismiss Plaintiff's FAC in its entirety with one final opportunity to amend, and consider imposing a bar Order under 28 U.S.C. § 1651(a). (Dkt. No. 9.)
I. PLAINTIFF'S MOTION TO SEAL
Plaintiff's FAC includes a section titled “Request to Seal Case” wherein he “requests the Case to be sealed due to Local Rule 5.2 Personal Privacy protection.” Id. at 16. In particular, Plaintiff expresses concern over disclosure of his home address, his UPS Employee ID, and his financial history. See id. According to Plaintiff, several individuals-including UPS employees-have harassed him and damaged property at his home address. See id. at 16-17. Plaintiff accordingly requests the Court to seal the record in this case. See id.
“The common law right of public access to judicial documents is firmly rooted in our nation's history.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006).This right arises from “the need for federal courts, although independent-indeed, particularly because they are independent-to have a measure of accountability and for the public to have confidence in the administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (hereinafter, Amodeo II); see also Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139-40 (2d Cir. 2016). “In light of the presumption in favor of public access, the Second Circuit has established a three-part test for determining whether documents may be placed under seal.” City of Providence v. BATS Glob. Markets, Inc., No. 14-CV-2811 (JMF), 2022 WL 539438, at *1 (S.D.N.Y. Feb. 23, 2022).
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).
“First, a court must . . . conclude that the documents at issue are indeed judicial documents . . . and that therefore a common law presumption of access attaches.” Id. (quoting Lugosch, 435 F.3d at 119). “Second, the court must determine the weight of that presumption, which is governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Id. (quoting Lugosch, 435 F.3d at 119). “Finally, . . . the court must balance competing considerations against the presumption of access, including the danger of impairing law enforcement or judicial efficiency and the privacy interests of those resisting disclosure.” Id. (quoting Lugosch, 435 F.3d at 120). The party seeking to maintain information filed under seal bears “the burden . . . to demonstrate that the interests favoring non-access outweigh those favoring access.” United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995) (“Amodeo I”); see also N.D.N.Y. L.R. 5.3(a) (“A party seeking to have a document, a portion of a document, a party or an entire case sealed bears the burden of filing an application setting forth the reason(s) that the referenced material should be sealed under the governing legal standard.”).
Under Local Rule 5.2(a), parties' filings should not include-or should redact-personal identifiers like home addresses. See N.D.N.Y. L.R. 5.2(a); see, e.g., Richards v. Cordis Corp., No. 5:17-CV-178 (BKS) (ATB), 2022 WL 602563, at *4 (N.D.N.Y. Mar. 1, 2022) (directing the plaintiff to “redact personal identifiers from . . . filings in accordance with Local Rule 5.2(a).”). The rule further warns parties to exercise caution when filing documents that contain personal information, like “individual financial information.” See N.D.N.Y. L.R. 5.2(a). If a party wishes to file a document that contains personal information, he may either: (1) “file an unredacted version of the document under seal in compliance with Local Rule 5.3,” or (2) “file a reference list under seal.” See N.D.N.Y. L.R. 5.2(b).
Here, Plaintiff failed to comply with this Court's Local Rules for requesting the sealing of this case (or the redaction of certain documents), and he failed to demonstrate compelling reasons that require sealing the case. First, Plaintiff's FAC includes the very information he wishes shielded from public view. (See generally Dkt. No. 9.) He did not file an unredacted version of the FAC or a reference list under seal. See generally N.D.N.Y. L.R. 5.2(a)-(b). Plaintiff accordingly failed to follow this Court's rules for requesting the redaction of certain documents or for sealing the case. See id.; see generally Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (explaining “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law”).
Second, Plaintiff has not carried his burden of demonstrating that his interest in protecting certain personal information outweighs the interests favoring public access to judicial documents. See Amodeo I, 44 F.3d 141, 148; see also N.D.N.Y. L.R. 5.3(a). Plaintiff's FAC is a judicial document subject to the presumption of public access. See Bernstein, 814 F.3d at 139-40 (concluding a complaint is a judicial document subject to the presumption of public access); Brown v. Hortons, No. 5:19-CV-1160 (LEK) (ATB), 2019 WL 4621936, at *2 (N.D.N.Y. Sept. 24, 2019) (same). The submission at issue here, Plaintiff's FAC, gives this presumption additional weight because, as explained by the Second Circuit, “[a] complaint initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision.” Bernstein, 814 F.3d at 140; see also id. (explaining “the fact of filing a complaint, whatever its veracity, is a significant matter of record,” and “the inspection of pleadings allows the public to discern the prevalence of certain types of cases, the nature of the parties to particular kinds of actions, . . . and the types of materials that are likely to be sealed.”). This weighty presumption is the not overcome by Plaintiff's concern for the disclosure of information that he already placed in the public sphere through filings in four separate civil actions he initiated in this Court. See generally infra Section V; accord Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) (“We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.”); In re Terrorist Attacks on Sept. 11, 2001, No. 03-MD-L01570 (GBD) (SN), 2020 WL 8611148, at *2 (S.D.N.Y. Oct. 2, 2020) (same).
Plaintiff appears to seek a sealing order because UPS employees have allegedly harassed him and damaged property at his home residence. (See Dkt. No. 9 at 16-17.) Although the undersigned is sympathetic to Plaintiff's allegations of harassment and property damage, the undersigned is unpersuaded that sealing this case or redacting certain documents would shield Plaintiff from further harassment or property damage. According to Plaintiff, Defendants have known his identity and home address since October of 2021, well before the Complaint and the FAC were filed in this case. (See Dkt. Nos 1, 9.) “The genie is out of the bottle,” and the undersigned does “not [have] the means to put the genie back.” Gambale, 377 F.3d at 144.
In sum, Plaintiff failed to comply with the Local Rules for requesting the sealing of the case or the redaction of certain documents. See generally N.D.N.Y. L.R. 5.2, 5.3. Because of this, and because Plaintiff has submitted various filings in the four other civil actions he initiated in this Court, Plaintiff has already placed into public view the information he seeks to shield. See generally infra V; Gambale, 377 F.3d at 144. Plaintiff has failed to carry his burden of demonstrating his interest in protecting certain personal information outweighs the interests favoring public access to judicial documents. See Amodeo I, 44 F.3d 141, 148; see also N.D.N.Y. L.R. 5.3(a). Plaintiff's motion to seal is accordingly DENIED. (Dkt. No. 9 at 16-17.)
II. PLAINTIFF'S OBJECTION
Plaintiff's FAC includes a section titled “Objection of Case Being Dismissed.” See id. at 15-16. Construing this objection liberally, the undersigned interprets it as a second objection to the Order and Report-Recommendation (“Order-RR”) filed on July 29, 2022, wherein the undersigned recommended that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend. See generally Dkt. No. 6 at 4-10. That Order-RR was served on Plaintiff via regular mail on July 29, 2022, and Plaintiff filed his first objection on August 10, 2022. (See Dkt. Nos. 6-7.) On September 6, 2022, the Court overruled Plaintiff's Objection and adopted the Order-RR in its entirety. See Dkt. No. 8 at 4-6. Plaintiff subsequently filed the FAC, which replaced the Complaint. (See Dkt. No. 9.) The undersigned accordingly recommends that the Court overrule Plaintiff's second objection to the Order-RR as untimely and moot. See 28 U.S.C. § 636(b)(1)(C); see also Dkt. No. 9.
III. THREE JUDGE PANEL
Plaintiff moves to convene a panel of three judges to decide the issues in this case. (Dkt. No. 9 at 16.) Under 28 U.S.C. § 2284(a), “[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” 28 U.S.C. § 2284(a). None of these conditions are present here. See generally Wright & Miller, 17A Fed. Prac. & Proc. § 4235 (3d ed. 2022) (explaining “[t]he continued provision of a three-judge court ‘when otherwise required by Act of Congress' has reference principally to certain provisions of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as amended, that require or permit a three-judge court, although there are a few other rare instances in which an Act of Congress requires a three-judge court.”). The undersigned accordingly recommends that the Court deny Plaintiff's motion to convene a panel of three judges. See, e.g., Zheng v. Gen. Elec. Co., No. 1:17-CV-671 (TJM) (CFH), 2018 WL 11417797, at *4 (N.D.N.Y. Mar. 22, 2018).
IV. SUFFICIENCY OF THE FIRST AMENDED COMPLAINT
A. Summary of the First Amended Complaint ]
The following recitation of facts is drawn from the FAC, 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).
Through his FAC, Plaintiff repeats many of the factual allegations contained in his initial Complaint. (Compare Dkt. No. 9 at 6-14, with Dkt. No. 6 at 2.) Based on the same series of events set forth in Plaintiff's original Complaint, Plaintiff appears to advance three claims against Defendants under Title VII of the Civil Rights Act: (1) hostile work environment, (2) discriminatory discharge, and (3) retaliation. (See Dkt. No. 9 at 12-14.)
Through his first cause of action, Plaintiff claims UPS employees Ashley Janisch, McKenzie, and Robert Milne treated him unfairly on November 3, 2021. See id. These individuals “publicly humiliated, degraded, and discriminated [against Plaintiff],” by: (i) degrading his “[a]ppearance, [h]eight, [w]eight, and position of employment;” (ii) comparing his “appearance to McKenzie's appearance;” (iii) harassing him based on his “[s]ex and [s]exual [o]rientation;” (iv) sharing “private information about another (UPS) delivery [d]river living on the same dead-end road as [Plaintiff],” (v) “telling [Plaintiff] that the (UPS) [d]river who lives on the same dead-end road as [Plaintiff] has been trying to get his son a job at (UPS) but has been unsuccessful;” (vi) telling him he “should not have been hired;” and (vii) subjecting him to a road test that “[n]o other personal seasonal delivery driver was . . . subjected to.” See Id. Plaintiff claims this created a hostile workplace environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2. See id.
Through his second cause of action, Plaintiff claims UPS employee Robert Milne discriminated against him by subjecting him to a driving test that no other applicant was required to take. See id. at 13. UPS employee Cole Worden administered the driving test at the direction of Robert Milne. See id. Following the road test, Cole Worden told Plaintiff that UPS would not be hiring him. See id. Cole Worden subsequently “promised [Plaintiff] . . . a position of employment inside the (UPS) facility,” but that never came to fruition. See id. Plaintiff “reported the [d]iscrimination and adverse act of employment to UPS Corporate Human Resources hotline at 1-800-220-4126,” but they “failed to resolve [the] [a]dverse action and employment and hardship done by McKenzie, Robert Milne and Ashley Janisch.” Id. Plaintiff claims this constituted discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2. See id.
Through his third cause of action, Plaintiff claims UPS employees Robert Milne and McKenzie retaliated against him. See id. Plaintiff “reported the [d]iscrimination and adverse effect of employment from Robert Milne to the New York State Division of Human Rights on 01/12/2022.” Id. “During the NYSDHR [i]nvestigation McKenzie lied to NYSDHR [i]nvestigators retaliating against [Plaintiff].” Plaintiff claims this constituted retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3. See id.
B. 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).
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). “[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.
C. Sufficiency of the First Amended Complaint
Plaintiff's FAC 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 hostile work environment, discriminatory discharge, and retaliation. The undersigned accordingly recommends that the Court dismiss Plaintiff's FAC in its entirety with leave to amend. See id.
i. Hostile Work Environment
First, Plaintiff has failed to adequately state a claim for hostile work environment under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a). See 28 U.S.C. § 1915(e)(2)(B)(ii). Title VII of the Civil Rights Act makes it unlawful for an employer 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)(1); see also Bostock v. Clayton Cnty., Georgia, 140 S.Ct. 1731, 1747 (2020) (concluding “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”).
To state a prima facie case of discrimination under Title VII, a plaintiff must allege “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). “Specifically, Plaintiff must show either that he suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or . . . demonstrate that harassment on one or more of these bases amounted to a hostile work environment.” Morren v. New York Univ., No. 20-CV-10802 (JPO) (OTW), 2022 WL 1666918, at *14 (S.D.N.Y. Apr. 29, 2022), report and recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022) (quoting Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004)).
“While a prima facie case of employment discrimination requires application of the well-known burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), surviving a motion to dismiss requires only that the plaintiff give fair notice of the basis of his claims and the claims themselves must be facially plausible.” Oliver v. City of New York, No. 19-CV-11219 (PGG) (JLC), 2022 WL 455851, at *19 (S.D.N.Y. Feb. 15, 2022); see generally Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511-12 (2002). So, “[t]o state a hostile work environment claim, a plaintiff must plead facts tending to show that the complained of conduct: (1) is objectively severe or pervasive-that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's sex, or another protected characteristic.” Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir. 2012); see also Feingold, 366 F.3d at 149-50.
Here, Plaintiff failed to plausibly allege Defendants' conduct was motivated by a protected characteristic. (See generally Dkt. No. 9.) In support of his first cause of action, Plaintiff recites the elements of a hostile work environment claim, but those conclusory statements do not plausibly state a cause of action. See Iqbal, 556 U.S. at 678. For example, Plaintiff claims UPS employees Ashley Janisch, McKenzie, and Robert Milne treated him unfairly on November 3, 2021, because of his “[s]ex and [s]exual [o]rientation.” See id. at 12; see generally Bostock, 140 S.Ct. at 1747. Yet, Plaintiff advanced no specific factual allegations indicating what Defendants did or said to suggest the alleged harassment on November 3, 2021, was motivated by his sex or sexual orientation. (See generally Dkt. No. 9 at 6-14.) Absent some non-conclusory factual allegations linking Defendants' actions to Plaintiff's sex or sexual orientation, the FAC fails to state a claim for hostile work environment discrimination. See, e.g., Merisier v. Kings Cnty. Hosp., No. 16-CV-7088 (RRM) (RML), 2017 WL 4857565, at *2 (E.D.N.Y. Oct. 25, 2017) (“As Merisier has not adequately alleged that she was discriminated against on the basis of her membership in a protected class, the complaint, as filed, fails to state a claim for relief and must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).”); Fox v. Albany Med. Ctr., No. 1:17-CV-0798 (TJM) (DEP), 2017 WL 4417751, at *3 (N.D.N.Y. Sept. 11, 2017), report and recommendation adopted, 2017 WL 4417679 (N.D.N.Y. Oct. 3, 2017) (recommending the dismissal of plaintiff's hostile work environment claim because “there [wa]s nothing in her complaint to link the harassment she experienced with any protected classification”).
“In addition, it is long established that individuals are not subject to liability under Title VII.” Chisholm v. Stryker, No. 22-CV-2705(JMA) (SIL), 2022 WL 3647288, at *4 n.2 (E.D.N.Y. Aug. 24, 2022); see generally 42 U.S.C. § 2000e-2(a) (prohibiting employers from discriminating). Plaintiff's claims against D. Scott Davis, Ashley Janisch, and Robert Milne should accordingly be dismissed on the grounds that they are implausible and frivolous. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).
ii. Discriminatory Discharge
Second, Plaintiff has failed to adequately state a claim for discriminatory discharge under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a). See 28 U.S.C. § 1915(e)(2)(B)(ii). Title VII of the Civil Rights act prohibits an employer from discriminating “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)(1). To make out a prima facie case of discrimination under Title VII, Plaintiff must allege “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown, 673 F.3d at 150. While Plaintiff is not required to make out a prima facie case of discrimination at the pleading stage, he must allege facts that “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see generally Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (concluding plaintiff failed to state a claim where she “failed to plead any facts that would create an inference that any adverse action taken by any defendant was based upon her gender.”).
As explained above, Plaintiff has failed to allege facts that give rise to a reasonable inference Defendants' conduct was motivated by animus towards a protected characteristic. (See generally Dkt. No. 9 at 6-14.) Rather, Plaintiff's entire FAC contains the following conclusory allegations about protected characteristics: (i) “United Parcel Service (UPS) discriminated [against Plaintiff] based upon [s]ex and [n]ational [o]rigin;” (ii) Defendants harassed him based “on his [s]ex and [s]exual [o]rientation;” and (iii) “Robert Milne discriminated [against him] based on [s]ex, [s]exual orientation, . . . [and] [n]ational [o]rigin.” See id. at 6, 12-13. These conclusory statements do not plausibly state a cause of action for discriminatory discharge. See Iqbal, 556 U.S. at 678. Absent some non-conclusory factual allegations linking Defendants' actions to one of Plaintiff's protected characteristics, the FAC fails to state a claim for discriminatory discharge. See, e.g., Weekes v. JetBlue Airways Corp., No. 21-CV-1965 (MKB), 2022 WL 4291371, at *9 (E.D.N.Y. Sept. 16, 2022) (dismissing plaintiff's Title VII discrimination claim as inadequately pled because he did not “allege any facts that would permit the Court to infer causation between Plaintiff's membership in any protected class and the adverse employment actions he faced.”); Boza-Meade v. Rochester Hous. Auth., 170 F.Supp.3d 535, 554 (W.D.N.Y. 2016) (same); see generally Chisholm v. Stryker, No. 22-CV-2705(JMA) (SIL), 2022 WL 3647288, at *3-4 (E.D.N.Y. Aug. 24, 2022) (“Courts in this Circuit have routinely dismissed discrimination claims where the plaintiff's allegations, like here, fail to suggest discriminatory intent.”) (collecting cases).
iii. Retaliation
Finally, Plaintiff has failed to adequately state a claim for retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a). See 28 U.S.C. § 1915(e)(2)(B)(ii). “Title VII's antiretaliation provision forbids employer actions that ‘discriminate against' an employee (or job applicant) because he has ‘opposed' a practice that Title VII forbids or has ‘made a charge, testified, assisted, or participated in' a Title VII ‘investigation, proceeding, or hearing.'” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). “To establish a prima facie case of retaliation, the plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Sanderson v. New York State Elec. & Gas Corp., 560 Fed.Appx. 88, 93 (2d Cir. 2014); see also Gonzalez v. NYU Langone Hosps., No. 21-2569, 2022 WL 4372199, at *1 (2d Cir. Sept. 22, 2022). However, “[a]t the pleading stage, the allegations in the complaint need only give plausible support to the[se] . . . prima facie requirements.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018); see also Belyea v. City of Glen Cove, No. 20-CV-5675 (MKB), 2022 WL 3586559, at *12 (E.D.N.Y. Aug. 22, 2022). So, to adequately state a claim for Title VII retaliation at the pleading stage, a plaintiff must plausibly allege: “(1) defendants discriminated-or took an adverse employment action-against him, (2) because he has opposed any unlawful employment practice.” Duplan, 888 F.3d at 625; see also Belyea, 2022 WL 3586559, at *13.
Here, Plaintiff failed to adequately allege Defendants took an adverse employment action against him because he opposed an employment practice made unlawful by Title VII. (See Dkt. No. 9 at 13-14.) In relevant part, Plaintiff claims that after he suffered an “adverse effect of employment from Robert Milne,” he complained about it to the New York State Division on Human Rights (“NYSDHR”). See id. at 13. To make out a plausible retaliation claim, Plaintiff must allege “that the protected activity preceded the adverse action in order to satisfy the causation requirement.” Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001). Yet by Plaintiff's account, and as asserted in the section titled “Third Cause of Action,” the adverse employment action (e.g., firing or failing to hire him) preceded the protected activity (e.g., complaining to NYSDHR). (See Dkt. No. 9 at 13-14.) This sequence of events-where the adverse employment action precedes the protected activity-does not establish causation for a Title VII retaliation claim. See Raniola v. Bratton, 243 F.3d at 624. Plaintiff has accordingly failed to adequately allege Defendants took an adverse employment action against him because he opposed an employment practice made unlawful by Title VII. See, e.g., Holmes v. Astor Servs. for Child. & Fams., No. 16-CV-2260 (CS), 2017 WL 3535296, at *7 (S.D.N.Y. Aug. 16, 2017) (“Because these allegedly retaliatory events all occurred before Plaintiff engaged in any protected activity, no causal connection can be established between them and her complaint of discrimination.”); Ballard v. Children's Aid Soc'y, 781 F.Supp.2d 198, 207-208 (S.D.N.Y. 2011) (“Because Ballard has not provided sufficient evidence to demonstrate that the alleged protected activity preceded the adverse employment action, Ballard fails to establish the causal connection required to support her retaliation claim.”); Hartley v. Rubio, 785 F.Supp.2d 165, 183 (S.D.N.Y. 2011) (concluding “no causal connection exists between . . . the November 2004 complaint . . . and the adverse employment action” because it “pre-dated Hartley's reassignment”); St. Louis v. New York City Health & Hosp. Corp., 682 F.Supp.2d 216, 236 (E.D.N.Y. 2010) (“Plaintiff's January 7, 2003 NYSDHR complaint cannot be a basis for her claim of retaliation because it did not precede her adverse employment action.”).
In sum, Plaintiff failed to adequately plead each of his Title VII claims. See 28 U.S.C. § 1915(e)(2)(B)(ii). His FAC fails to state a Title VII hostile work environment claim because it lacks factual allegations linking Defendants' actions to Plaintiff's sex or sexual orientation. See, e.g., Merisier, 2017 WL 4857565, at *2; Fox, 2017 WL 4417751, at *3. His FAC fails to state a Title VII discriminatory discharge claim for the same reason. See, e.g., Weekes, 2022 WL 4291371, at *9; Boza-Meade, 170 F.Supp.3d at 554. Finally, his FAC fails to state a Title VII retaliation claim because it lacks a plausible theory of causation. See, e.g., Holmes, 2017 WL 3535296, at *7; Ballard, 781 F.Supp.2d at 207-208. The undersigned accordingly recommends that the Court dismiss Plaintiff's FAC in its entirety for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
V. PLAINTIFF'S FILING HISTORY
This is the fifth action Plaintiff has filed with this Court in recent years. See Brown v. Fat Dough Incorp., Case No. 5:22-cv-761-BKS-ML, Dkt. No. 1 (asserting claims under the ADA) (N.D.N.Y. 2022); Brown v. 7-Elven Incorp., No. 5:20-CV-1339 (TJM) (ML), 2021 WL 964207, at *2 (N.D.N.Y. Mar. 15, 2021) (overruling Plaintiff's objections to the report-recommendation, adopting the report-recommendation, and dismissing claims Plaintiff asserted under the ADA and New York state law); Brown v. 7-Eleven Incorp, No. 5:20-CV-553 (TJM) (ML), 2020 WL 4039450, at *1 (N.D.N.Y. July 17, 2020) (adopting the report and recommendation and dismissing claims Plaintiff asserted under the ADA); Brown v. Hortons, No. 5:19-CV-1160 (LEK) (ATB), 2019 WL 4621936, at *2 (N.D.N.Y. Sept. 24, 2019) (granting Plaintiff's motion to proceed in forma pauperis, denying his motion to seal, denying his motion for the appointment of counsel, and ordering that defendant file a formal response to claims Plaintiff asserted under the ADA); see also Brown v Hortons, Case No. 5:19-cv-1160-LEK-ATB, Dkt. No. 13 (dismissing Plaintiff's claims with prejudice) (N.D.N.Y. Nov. 5, 2019). To date, none of Plaintiff's actions have proved to be meritorious.
Because this is likely to be the fifth meritless action Plaintiff has initiated in this Court, the undersigned recommends that the Court consider imposing a bar Order under 28 U.S.C. § 1651(a). See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”).
VI. CONCLUSION
For the foregoing reasons, Plaintiff's motion to seal is denied, and the undersigned recommends that the Court overrule Plaintiff's objection as untimely and moot, deny Plaintiff's request for a panel of three judges, dismiss Plaintiff's FAC in its entirety with one final opportunity to amend, and consider imposing a bar Order under 28 U.S.C. § 1651(a). (Dkt. No. 9.)
ACCORDINGLY, it is hereby
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
ORDERED that Plaintiff's motion to seal (Dkt. No. 9 at 16-17) is DENIED; and it is further
RECOMMENDED that the Court OVERRULE Plaintiff's objection (Dkt. No. 9 at 1516); and it is further
RECOMMENDED that the Court DENY Plaintiff's request for a panel of three judges (Dkt. No. 9 at 16); and it is further
RECOMMENDED that Plaintiff's First Amended Complaint (Dkt. No. 9) be DISMISSED WITH LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and it is further
RECOMMENDED that the Court consider imposing a bar Order under 28 U.S.C. § 1651(a).
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).
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).