Opinion
22-CV-7070 (LTS)
11-07-2022
ROBERT L. CERESA, Plaintiff, v. BRIAN RATHJEN; JAMES NEIMIE; SADIE MILLARD; KEN MERLO, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff brings this pro se action, for which the filing fees have been paid, alleging that Defendants discriminated against him based on his age by terminating his employment. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks omitted).
The Court is obliged, however, 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.
Rule 8 requires a complaint to 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 presents his claims using the court's general complaint form, but the form is missing every other page (second, forth, and sixth pages). (See ECF 2.) He names as defendants Brian Rathjen, James Neimie, Sadie Millard, and Ken Merlo, but only identifies Merlo as the Legal Counsel of Roberts-Ryan Investments and Millard as its Operating Officer. Plaintiff seeks unspecified relief.
The following assertions are taken from the complaint. Plaintiff was the Senior Director of the Municipal Securities Group at Roberts-Ryan. On January 21, 2021, while he was on a marketing call with his sales team, Defendants Merlo and Millard interrupted the call to inform him that his services were no longer needed as the firm was shutting down the Municipal Bond Department. Plaintiff claims, however, that the firm never closed the Municipal Bond Department and that personnel he had trained are still employed at the firm and working in the same department. Plaintiff believes that his employment was terminated because Roberts-Ryan did not want to pay the $39,348 in fees and commissions due to him, and thought that the “much younger” personnel Plaintiff had trained could do the same job at lower pay. (ECF 2 at 3.) Plaintiff contends that Roberts-Ryan discriminated against him because of his age and “damaged” his career and reputation “by terminating [him] without just cause.” (Id.)
Plaintiff attaches to the complaint a Notice of Right to Sue issued by the Equal Employment Opportunity Commission (EEOC) on July 7, 2022, which states that the EEOC closed the charge because Plaintiff was “not in an employment relationship with the Respondent.” (Id. at 6.)
DISCUSSION
Plaintiff brings this action without specifying the statutory basis of his claims. Because Plaintiff alleges age discrimination and sought relief from the EEOC, the Court construes the complaint as being brought under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. The ADEA makes it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). It also makes it unlawful to retaliate against employees who oppose discriminatory practices barred by the ADEA. Id. § 623(d). The statute protects workers who are at least forty years old from discrimination because of their age. See 29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”); Feldman v. Nassau Cnty., 434 F.3d 177, 180 (2d Cir. 2006).
Plaintiff cannot bring age discrimination claims under the ADEA against Defendants Rathjen, Neimie, Millard, and Merlo. The ADEA only provides for liability against an employer, not against supervisors or other individuals. See Guerra v. Jones, 421 F. App'x. 15, 17 (2d Cir. 2011) (holding that the ADEA does not subject individuals, “even those with supervisory liability over the plaintiff,” to personal liability); Darcy v. Lippman, 356 Fed.Appx. 434, 437 (2d Cir. 2009) (holding that the ADEA does not create a cause of action against individual supervisors); Wang v. Palmisano, 51 F.Supp.3d 521, 537 (S.D.N.Y. 2014) (holding that individuals are not subject to liability under the ADEA) (collecting cases); see also 29 U.S.C. § 630(b) (defining “employer” as “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year”).
Because Rathjen, Neimie, Millard, and Merlo are individuals, they cannot be held liable under the ADEA, and the Court must therefore dismiss Plaintiff's ADEA claims against them. The Court, however, grants Plaintiff leave to file an amended complaint in which he names the proper defendant or defendants for his claims.If Plaintiff asserts claims under the ADEA in his amended complaint, he must name his employer as a defendant. Plaintiff should note the ADEA prohibits employers from discriminating against their employees because of age, but it does not prohibit such discrimination against independent contractors. See Legeno v. Douglas Elliman, LLC, 311 Fed.Appx. 403, 404 (2d Cir. 2009) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509 (2d Cir.1994)). In light of the EEOC's Notice of Right to Sue stating that Plaintiff was not in an “employment relationship with the Respondent” (ECF 2, at 6), if Plaintiff submits an amended complaint naming Roberts-Ryan as his employer, he must allege facts suggesting the existence of an employment relationship between himself and the firm.
Although the ADEA does not provide for individual liability, an individual “who actually participates in the conduct giving rise to the discrimination claim may be held personally liable” under the New York State Human Rights Law. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998); see Feingold v. New York, 366 F.3d 138, 158 n.19 (2d Cir. 2004).
Under the common law of agency, the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), govern whether a person is an employee or an independent contractor. The thirteen factors are: (1) the hiring party's right to control the manner and means by which the product is accomplished; (2) the skill required; (3)the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants;(10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party. Reid, 490 U.S. at 751-52.
Should Plaintiff submit an amended complaint, he must also “plausibly allege that (1) the employer took adverse employment action against him,” see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015), and (2) “that the relevant protected trait - his age - ‘was the ‘but-for' cause of the employer's adverse action,'” Mazzeo v. Mnuchin, 751 Fed.Appx. 13, 14 (2d Cir. 2018) (quotation omitted). Plaintiff may state an ADEA claim by “alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Vega, 801 F.3d at 87.
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 valid claims under the ADEA, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims against his employer and any other defendants.
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 each defendant. If Plaintiff has an address for any named 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 each 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.
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 available only by telephone.
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 22-CV-7070 (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).
SO ORDERED.