Opinion
20-CV-8842 (LLS)
01-05-2021
SEAN G. FELDER, Plaintiff, v. ATRIA BUILDERS; ED GRUNWALL, PRESIDENT; MIKE FERGUSKI, SECURITY DIRECTOR, Defendant.
ORDER TO AMEND
LOUIS L. STANTON, 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, alleging that his employer discriminated against him based on his race. By order dated December 9, 2019, 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 IFP 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
Using the Court's form complaint for employment discrimination, Plaintiff Sean G. Felder brings this complaint against Atria Builders; Ed Grunwall, President; and Mike Ferguski, Security Director, alleging that Defendants discriminated against him on the basis of his race. Plaintiff, who identifies himself as Black, checks the box indicating that he is alleging discrimination under Title VII, although he does not indicate his race in that section of the complaint. Plaintiff checks the box indicating that he is asserting claims under 42 U.S.C. § 1981, and he does indicate his race in that section of the complaint. Plaintiff also checks the box indicating that he is asserting claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 - 634, but he does not indicate the year that he was born.
Plaintiff alleges the following:
After working 3 yrs as firewatch security at old site 461 W. 34st, Atria Builders Assistant Security Director Ed Smalls decided to wrongfully terminate me 7/23/2019 on phone after coming back from vacation at Atlanta, Ga! I was never called to corporate office and address this issue of bed bugs at construction site. This was plot by upper management to find ways to terminate me!(ECF No. 2 at 5.)
Page numbers refer to those generated by the Court's electronic filing system.
Plaintiff alleges that he exhausted his administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC), and that he received the October 13, 2020 notice of right to sue two days before he filed his complaint with the Court. He seeks unspecified monetary damages.
Plaintiff filed his complaint on October 21, 2020. He does not attach a copy of the notice to his complaint.
DISCUSSION
A. Claims Under 42 U.S.C. § 1981
Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)). To state a § 1981 claim, a plaintiff must allege: (1) that he is a member of a racial minority; (2) the defendants intended to discriminate on the basis of race; and (3) the discrimination concerns one of the statute's enumerated activities. Id. at 476 (holding that a plaintiff is entitled to relief under § 1981 “when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship.”).
Plaintiff's allegations of discrimination do not suffice to state a claim under § 1981. The alleged facts do not suggest that Defendant's conduct was motivated by race-based animus.
B. Title VII and ADEA Claims
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, 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). 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).
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.
Plaintiff's allegations of discrimination under Title VII and the ADEA are also insufficient to state claims under these statutes. Plaintiff does not allege facts suggesting that his employer took any adverse action against him based on his race. Plaintiff also does not allege that he is at least 40 years old, and even if he meets the age criteria for an ADEA claim, he does allege facts suggesting that the alleged adverse acts occurred because of his age.
Should Plaintiff choose to amend his complaint, he must allege facts suggesting that Defendant took adverse employment action against him because of an impermissible factor.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his employment discrimination claims. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation 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 wishes to maintain must be included in the amended complaint.
In the event that Plaintiff chooses to file an amended complaint, the Court strongly encourages him to ask for assistance from someone who can help him organize his thoughts and claims. If Plaintiff needs legal advice related to this matter, he may contact the New York Legal Assistance Group's 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.
CONCLUSION
The Clerk of Court is directed to transmit a copy of this order to Plaintiff and note service on the docket.
Plaintiff has consented to receive electronic service of notices and documents in this case. (ECF No. 3.)
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 20-CV-8842 (LLS). 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.
Plaintiff should attach a copy of the notice of right to sue from the EEOC to his amended complaint.
Plaintiff's request for counsel (ECF No. 6) is denied without prejudice to renewal at a later date.
SO ORDERED.