Opinion
06 Civ. 00482 (RJH)(THK), 07 Civ. 01288 (RJH)(THK).
March 12, 2007
MEMORANDUM OPINION AND ORDER
On January 23, 2006, Gary M. Cohen ("Plaintiff") filed a pro se Complaint in this Court against Federal Express Corporation ("Defendant"), asserting numerous claims of employment discrimination and unlawful retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, and the Americans with Disabilities Act, 42 U.S.C. §§ 12112-117. (See Complaint, dated Dec. 16, 2006, at 1.) Approximately four months later, Plaintiff filed a Complaint in Massachusetts Superior Court that asserted similar claims. (See Massachusetts Superior Court Complaint, filed May 6, 2006 ("Mass. Compl.").) Plaintiff contends that the state action also included claims under Massachusetts law for unemployment benefits and sexual orientation discrimination.
On August 11, 2006, Defendant removed the Massachusetts state action to the United States District Court for the District of Massachusetts on the basis of federal question and diversity jurisdiction, and subsequently filed a motion to dismiss or, in the alternative, to transfer the action to the United States District Court for the Southern District of New York. (See Cohen v. Federal Express Corp., 06-11418-NMG, Memorandum and Order, dated Dec. 20, 2006 ("Dec. 20 Order"), at 1.) Plaintiff opposed the removal of his state law claims and asked that they be remanded to Massachusetts state court. (See id.) In a December 20, 2006 Memorandum and Order, the Honorable Nathaniel Gorton, United States District Judge for the District of Massachusetts, granted Defendant's motion to transfer the case to this Court, and denied Plaintiff's motion to remand the state claims. (See id. at 7.) The action (hereinafter "the Massachusetts Action") was subsequently transferred to this Court and docketed on February 21, 2007.
Plaintiff now seeks to amend the Complaint originally filed in this Court (hereinafter "the New York Action"), to assert his state law sexual orientation discrimination claim, and further asks this Court to remand his unemployment benefits claim to the Massachusetts state courts. (See Letter of Gary M. Cohen to the Court, dated Feb. 12, 2007 ("Feb. 12 Ltr."); Letter of Gary M. Cohen to the Court, dated Feb. 16, 2007 ("Feb. 16 Ltr."); Letter of Gary M. Cohen to the Court, dated Feb. 25, 2007 ("Feb. 25 Ltr.").)
I. Consolidation of the Actions
As a proliminary matter, the Court will consolidate the Massachusetts and New York Actions for all purposes. A district court can consolidate related cases under Federal Rule of Civil Procedure 42(a), sua sponte. Devlin v. Transportation Communications Intern. Union, 175 F.3d 121, 130 (2d Cir. 1999). Under the Rule, consolidation is appropriate "[w]hen actions involving a common question of law or fact are pending before the court." Fed.R.Civ.P. 42(a). "In assessing whether consolidation is appropriate in given circumstances, a district court should consider both equity and judicial economy." Devlin, 175 F.3d at 130. "However, . . . efficiency cannot be permitted to prevail at the expense of justice — consolidation should be considered when 'savings of expense and gains of efficiency can be accomplished without sacrifice of justice.'" Id. (quotingConsorti v. Armstrong World Ind., 72 F.3d 1003, 1007 (2d Cir. 1995)).
On its face, the New York Action is virtually indistinguishable from the Massachusetts Action. While not precisely identical in wording, both Complaints contain similar claims, under federal law, of workplace discrimination and unlawful retaliation. Moreover, the facts in support of both Complaints are set forth in an attached, identical seven-page document entitled "Federal EEOC Filing Addendum," which outlines Plaintiff's work history at Federal Express and the events leading up to the termination of his employment. Because both actions involve common issues of law and fact, the Court finds that efficiency considerations weigh heavily in support of consolidation, and further concludes that consolidation will not adversely affect Plaintiff's right to litigate all of his properly-asserted claims.
In a conference with Judge Gorton, Plaintiff conceded that many of the claims in the Massachusetts Action were duplicative of the claims in the New York Action. (See Dec. 20 Order, at 2.)
Thus, the Clerk of Court is directed to consolidate, for all purposes, case No. 06 Civ. 00482 (RJH)(THK), and case No. 07 Civ. 01288 (RJH)(THK).
II. Plaintiff's Motions to Amend and to Remand
In an Order dated February 7, 2007, this Court granted Plaintiff leave to file a motion to amend the Complaint originally filed in this Court, to add his state law claims. Plaintiff was directed to file by February 13, 2007 a motion "accompanied by a succinct, brief statement of each proposed new claim. The description of the proposed claims, as well as identification of the persons who are alleged to have engaged in the claimed wrongdoing, is not to exceed two pages in total."
On February 12, 2007, Plaintiff submitted to the Court a letter with the subject line: "Adding Sexual Orientation Discrimination and Unemployment Compensation to My Case." (See Feb. 12 Ltr. at 1.) Plaintiff's letter focuses on his sexual orientation discrimination claim, but does not discuss the unemployment compensation claim. In the letter, Plaintiff asserts that Defendant, "denied me job advancement and promotion in a multitude of job applications and discriminated against me in these job applications directly because I am gay." (See id. at 1.) Plaintiff further states that "[t]here are at least 8 to 10 or more job rejections and direct evidence of discrimination in these allegations that I will present." (See id.)
Shortly thereafter, Plaintiff submitted to this Court two additional letters, each with an identical attached motion, asking that his unemployment compensation claim be remanded to state court. (See Motion to Remand and Send Unemployment Compensation to Suffolk Superior Court, dated Feb. 16, 2007, attached to Feb. 16 Ltr. and Feb. 25 Ltr.) Plaintiff asserts that he is seeking remand of the unemployment compensation claim because the "[federal court] cannot hear any Massachusetts State issues." (See Feb. 16 Ltr. at 2.)
Defendant opposes Plaintiff's motion to amend on the grounds that Plaintiff has not asserted his sexual orientation discrimination claim with requisite specificity, by identifying the positions he sought, the individuals alleged to have discriminated against him, and the dates on which he was denied promotions. (See Defendant's Response in Opposition to Motion to Amend, dated Feb. 23, 2007, at 2-3.) Defendant further contends that the sexual orientation discrimination claim is time-barred under federal and New York law. (See id. at 3.) Defendant's motion is silent on the issue of whether the unemployment compensation claim should be remanded to state court. Nevertheless, Defendant has argued that if Plaintiff pursues the unemployment compensation claim in this Court, he must add the Commonwealth of Massachusetts as a party defendant, and that the Eleventh Amendment will ultimately bar any claim against the Commonwealth. (See id. at 5.)
Since the Court has no specific factual information about the basis of Plaintiff's sexual orientation discrimination claim, including under what law it is asserted, the Court cannot now determine whether it is likely to be time-barred.
A. Amendment Regarding Sexual Orientation Discrimination
It is well-settled that under Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" and that "each averment of a pleading . . . be simple, concise, and direct." Fed.R.Civ.P. 8(a)(2), (e)(1); see also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508, 122 S. Ct. 992, 995 (2002). A pleading must give the court and defendants "fair notice of what the Plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957), so as to enable defendants to answer and prepare for trial, Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). "The rule also serves to sharpen the issues to be litigated and to confine discovery and the presentation of evidence at trial within reasonable bounds." Chodos v. F.B.I., 559 F. Supp. 69, 71 (S.D.N.Y. 1982).
Plaintiff's sexual orientation discrimination claim falls to satisfy the requirements of Rule 8. The Massachusetts Complaint, Plaintiff's letters to this Court, and the accompanying motion to amend are bereft of the specific information necessary to state a claim that Plaintiff was discriminated against, on the basis of his sexual orientation, in seeking promotions. The only facts in the Massachusetts Action are in the attached "Federal EEOC Filing Addendum," which makes no mention of Plaintiff's application(s) for promotion. Similarly, Plaintiff's letter and motion largely consist of broad and conclusory assertions of discrimination (e.g., "Federal Express violated it's [sic] internal hiring policies and procedures and violated the rights of two gay men in a multitude of job posting[s] for entry level sales territory jobs."). (See Feb. 12 Ltr. at 1-2.) Plaintiff fails to state when he applied for promotions, the positions he applied for, the dates on which he claims discriminatory promotion decisions were made, and who made them. Therefore, as pled, Plaintiff's sexual orientation discrimination claim makes it virtually impossible for Defendant to file a meaningful answer.
Likewise, there is no mention of Plaintiff being denied a promotion in the "three-ring binder" of information submitted by Plaintiff with the original Complaint filed in this Court.
Moreover, it is not clear what law Plaintiff relies upon for his sexual orientation discrimination claim. Title VII does not recognize homosexuals as a protected class; thus, discrimination on the basis of sexual orientation is not actionable under the statute. See Dawson v. Bumble Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (citing Simonton v. Runyon, 232 E.3d 33, 36 (2d Cir. 2000)); Hoatson v. New York Archdiocese, No. 05 Civ. 10467 (PAC), 2007 WL 431098, at *8 (S.D.N.Y. Feb. 8, 2007).
Plaintiff is therefore granted one more opportunity to file a proposed amendment to the Complaint. Plaintiff shall file by March 26, 2007, a description of his proposed sexual orientation discrimination claim that meets the pleading requirements of Rule 8. Plaintiff should not file a lengthy narrative of conclusory opinions about what he believes happened to him, or submit a pile of documents for the Court to sift through and analyze. Plaintiff's submission must be a succinct, fact-specific document that includes:
Since the Court is not, at this point, granting Plaintiff's motion to amend the Complaint, the Court need not consider Plaintiff's request to compel discovery on his proposed sexual orientation discrimination claim.
(1) The specific dates on which Plaintiff sought promotion, the positions he applied for, and the dates on which he was denied promotion.
(2) The names of those individuals Plaintiff claims made discriminatory promotion decisions.
(3) The law under which Plaintiff's sexual orientation discrimination claim arises.
B. Unemployment Compensation Claim
The nature of Plaintiff's unemployment compensation claim is entirely unclear. There is no explicit claim for unemployment benefits in the Massachusetts Complaint. Plaintiff simply cites "unemployment" as an injury on the Complaint cover sheet, and attaches a letter from the Commonwealth of Massachusetts, Division of Unemployment Assistance, Board of Review, denying review of the denial of his benefits claim. (See Mass. Compl.)
If Plaintiff's intent is to appeal the Board's denial of review, it appears that such an action is time-barred. Under Massachusetts law, a party may obtain judicial review of a Board's decision by commencing "within thirty days of the date of mailing of such decision, a civil action in the district court."See Massachusetts General Laws 151A § 42. The Board's decision was mailed to Plaintiff on March 24, 2006; thus, the final date to appeal the decision was April 24, 2006. Plaintiff filed a Complaint against Defendant on May 6, 2006, more than a week past the deadline, and did not include the Commonwealth as a defendant. Thus, there is no claim in this action against the Commonwealth of Massachusetts for unemployment benefits, no less a viable claim, that can be remanded to the Massachusetts courts.
If Plaintiff instead wishes to allege that Defendant engaged in discriminatory conduce that resulted in the loss of his unemployment benefits, such an allegation is closely related to the claims presently in this action, and there is no reason to remand the claim to the Massachusetts courts. Therefore, if Plaintiff wishes to assert a claim against Defendant relating to the denial of unemployment benefits, he must, by March 26, 2007, submit a proposed amendment to the Complaint that meets the pleading requirements of Rule 8.
SO ORDERED.