Opinion
21-CV-06139 (AT)(BCM)
02-27-2023
SHYAMAL GHOSH, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Shyamal Ghosh, proceeding pro se, brought this action against his employer, the New York City Housing Authority (NYCHA), for what he characterizes as a lengthy campaign of employment discrimination and retaliation. After twice amending and then further revising his pleading, plaintiff filed a 400-page Revised Amended Complaint with Attachments (RAC) (Dkt. 23), which remains his operative pleading. Now before me for report and recommendation is NYCHA's motion (Dkt. 41) to dismiss the RAC pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, I respectfully recommend that the RAC be dismissed pursuant to Fed.R.Civ.P. 8(a)(2) for failure to plead a short and plain statement. In the alternative, I recommend that plaintiff's federal claims be dismissed pursuant to Rule 12(b)(6), and that his state claims be dismissed without prejudice for want of subject matter jurisdiction.
I. BACKGROUND
A. Facts Alleged by Plaintiff
As discussed in more detail below, the RAC is extremely difficult to follow. Plaintiff's allegations are disorganized, rambling, convoluted, and discursive, with many side trips into issues that do not appear to be related to his discrimination and retaliation claims. The lack of any semblance of a chronological structure makes it nearly impossible to understand the sequence of events, and plaintiff's idiosyncratic approach to grammar and sentence structure makes it challenging for the reader to decipher even relatively short paragraphs.The following summary represents the Court's best effort to marshal the facts upon which plaintiff's claims are based.
As an example: plaintiff alleges that he has been subject to a campaign of retaliation and harassment ever since he complained about discriminatory hiring practices in 2006. He writes: "NYCHA did not inspire for a good job either since complaining about discriminatory hiring practices rather intimidated retaliation against the plaintiff (Attachment-3, 15). Paragraph 29, 55 are some instances. One-way NYCHA accepts plaintiff suggestions (paragraph-56) on the other ways use supervisor to dominate plaintiff from his creativity. As a result of a complaint on research scientist hiring discrimination in 2006 NYCHA never again call the plaintiff for a research scientist position plaintiff applied for all those after." RAC ¶ 59.
As required by well-established precedent, I have construed the RAC "liberally, reading it with special solicitude" in light of plaintiff's pro se status. J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013) (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). Additionally, for purposes of defendant's Rule 12(b)(6) motion, I accept plaintiff's well-pleaded factual allegations as true, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), and take judicial notice of relevant documents filed in related legal actions "to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).
Plaintiff is a 57-year-old resident of Queens, New York, of "Bangladeshi national origin." RAC ¶¶ 1, 66. Before moving to the United States, he was a "registered health practitioner" in Bangladesh. Id. ¶ 48. Since 2002, he has been employed by NYCHA, id. ¶ 1, serving as a Housing Assistant in the Marcy Houses complex. See, e.g., Dkt. 23-1 at ECF pp. 69.While employed in that capacity, plaintiff applied for more than 300 open job positions within NYCHA. RAC ¶ 20. These positions included "level one Research Scientist," "level two Research Scientist," "Environmental Health and Safety Officer," "Health Initiatives Senior Manager," "RED Director," and "many other vacancies" in NYCHA's health office. Id. ¶¶ 11, 22, 27, 31. Although plaintiff was interviewed for some of these positions in 2005 and 2006, including level two Research Scientist, id. ¶¶ 47, 57, he was not selected for promotion. Id. ¶ 57.
In the body of the RAC (consisting of 76 consecutively numbered paragraphs over 26 pages), plaintiff refers to its voluminous attachments by number. However, the attachments themselves (most of which consist of multiple subsidiary documents) are not numbered, slip-sheeted, or otherwise demarcated, and the "filing index" that plaintiff provides (see Dkt. 23 at ECF pp. 28-32) is of no assistance. Moreover, because plaintiff has submitted a total of 372 pages of attachments, the Court's electronic case filing (ECF) system split them into two separate docket entries (Dkts. 23 and 23-1). Consequently, in this Report and Recommendation, citations to the attachments appear as "Dkt. at ECF p. ." Citations to the voluminous exhibits attached to plaintiff's motion papers follow the same format.
With respect to the level two Research Scientist position, Linda Young, NYCHA's Deputy Director for Employment Hiring, promoted another employee, Ying Meng Lui, over plaintiff. RAC ¶ 22. Mr. Lui, who had been hired into the level one Research Scientist post the year before, was less well qualified for the level two job than plaintiff, but had "racial ties" with Ms. Young. Id. ¶¶ 22, 68. "Right after" his 2006 interview for the level two position, plaintiff complained about this alleged discrimination to NYCHA's human resources (HR) department, RAC ¶ 47, but was never again considered for a research scientist position. Id. ¶ 22. This was the beginning of a "chronology of retaliation," id., which has persisted ever since, subjecting plaintiff to harassment by multiple NYCHA managers over many years. Id. ¶¶ 4, 57.
Plaintiff does not explain why he believed that he was better-qualified than Mr. Lui for the 2006 promotion to level two Research Scientist at NYCHA.
As part of the campaign of retaliation, NYCHA's HR department deemed plaintiff "unqualified" for many of the positions to which he applied, RAC ¶ 21, resulting in HR not forwarding those applications to the relevant hiring managers, id. ¶ 22; see also Dkt. 23 at ECF pp. 121-30 (job applications submitted by plaintiff and marked "not qualified"),and by asking him to interview for positions for which he was not qualified or in which he was not interested. RAC ¶ 31. According to plaintiff, NYCHA mangers Brenda Allen and Leroy Scotland further discriminated against him (and "stressed out him") by changing his assignments at work, including changing his building assignment twice (on unspecified dates), despite his good record of rent collections. Id. ¶ 58.
Plaintiff was interviewed for other positions, but did not get them. See, e.g., Dkt. 23 at ECF p. 132 (July 25, 2016 email from plaintiff to NYCHA Executive Vice President Kerri Jew, asking why he was not promoted to Community Service Specialist in 2015 or Resident Engagement Director in 2014 after interviewing for those positions).
Plaintiff also claims that NYCHA personnel placed "negative information in [his] personal record folder," including a 2011 memo unjustly accusing him of using the internet for a Facebook friend invitation at work, a "false lateness report" (on an unspecified date), and other "memos," all of which were "biased." RAC ¶¶ 23-28. The last two "retaliatory memos" were issued in 2018 and 2020. The 2018 memo was removed from his file with the assistance of his union, id. ¶¶ 24, 56, but the other memos were not removed, even though the "retaliatory memo issuing managers" were "either transferred (disciplinary action) or demoted or forced to resign . . . or already left NYCHA." Id. ¶ 25. Some of the negative memos "came from Marcy Houses Assistant Manager Ms. Allison McLean," id. ¶ 27, who was hired into that position over plaintiff in 2004, has never liked him, and "never appreciate [sic] the plaintiff's good job performance." Id. Plaintiff alleges that on "many occasions" Ms. McLean has publicly announced her intention to "treat[] plaintiff differently," id., but does not describe any of those occasions. He further alleges that Ms. McLean shows "favoritism to others" and creates "obstacles to the plaintiff's creative work and better performance." Id. Here, plaintiff gives an example: once in 2009, when new NYCHA Chair John Rhea visited Marcy Houses, Ms. McLean allowed housing assistant Stephanie Alonso to meet Mr. Rhea, even though it was Ms. Alonso's "court date," and instead sent plaintiff to "attend court" that day, depriving him of the "privilege" of meeting Mr. Rhea. Id. ¶ 27.
On January 11, 2018, plaintiff was issued a Counseling Memorandum that reprimanded him for taking original tenant folders home with him before or after attending Landlord & Tenant Court on NYCHA's behalf, and advised him that "future instances" of similar conduct "may be the subject of disciplinary action." Dkt. 23-1 at ECF pp. 125-26. On November 2, 2020, plaintiff was issued a memo noting that he failed to complete "required annual reviews" on certain dates, and advising him that "repeated instances" of that conduct "may be subject to future disciplinary action." Dkt. 23 at ECF p. 140. Plaintiff does not allege that any formal disciplinary action was ever taken against him.
Other managers, however, appreciated plaintiff's work and wrote complimentary notes and memos, RAC ¶¶ 32-34, including one in 2009 praising his "dedication and commitment to NYCHA's rent collection process[.]" Id. ¶ 33.
Plaintiff's complaints extend far beyond the alleged retaliation and harassment he claims to have experienced. Much of the RAC, and many of its attachments, are devoted to plaintiff's claim that that NYCHA's COVID policies were misguided and poorly executed and his strongly-held view that NYCHA is rife with "nepotism," favoritism, and managerial incompetence. See, e.g., RAC ¶¶ 5, 7-8, 11-14, 18, 31, 34, 36-40, 54, 61. Plaintiff also recites statements by public figures who have been similarly critical of NYCHA. Id. ¶¶ 41-42. Although these allegations make up a significant portion of plaintiff's pleading, it is difficult to connect them to his legal claims, which - as described in more detail below - are brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107 et seq., seeking redress for employment discrimination (specifically, failure to promote) based on age, race, and/or national origin, and retaliation arising from the complaints of discrimination that plaintiff made to NYCHA's HR department in 2006, to NYCHA's Department of Equal Opportunity (DEO) in 2011 (and "on several occasions" thereafter), and to the New York City Commission on Human Rights (CHR) in 2017. See RAC ¶¶ 47, 58, 65-76; Plaintiff's Response to Defendant's Motion to Dismiss (Pl. Mem.) (Dkt. 48) at 5.
Because plaintiff's brief is not internally paginated, all page citations are to the page numbers assigned by the ECF system. I note here that plaintiff's operative pleading also includes a brief reference to the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213. See RAC ¶ 73. However, plaintiff does not allege any disability, actual or perceived, and does not mention the ADA anywhere else in the RAC, or anywhere in his opposition memorandum. I therefore conclude that, to the extent he intended to plead a claim under the ADA, he has abandoned it. In any event, "[w]hen an ADA claim fails to allege that plaintiff was a 'qualified individual with a disability,' it must be dismissed." Ramrattan v. Fischer, 2015 WL 3604242, at *5 (S.D.N.Y. June 9, 2015).
Plaintiff also complains that he was "mistreated" by the Commission on Human Rights. RAC ¶ 46. After corresponding with the agency for more than two years, plaintiff filed a Verified Complaint with the CHR on or about February 2, 2017, alleging that NYCHA "discriminated against him in the terms, conditions, and/or privileges of his employment by declining to hire or promote him because of his race, color, and age," and by retaliating against him after he opposed "race, color, and age discrimination," in violation of the NCHRL, Title VII, and the ADEA. Id. ¶¶ 4, 45; see also Dkt. 23 at ECF pp. 156-57 (CHR Compl.) ¶¶ 10-13. However, CHR staff attorney Ya Li "did not submit the complaint as per one plaintiff requested." RAC ¶ 16. Instead, Ms. Li "created intimidation and verbal fear for not accepting a complaint for filing which created enormous negative influence to plaintiff moving with case filing at [CHR]." Id.
On May 1, 2017, the Law Enforcement Bureau of the CHR dismissed plaintiff's Verified Complaint, without reaching the merits, pursuant to N.Y.C. Admin. Code§ 8-113(a)(5) (permitting dismissal where "[p]rosecution of the complaint will not serve the public interest"). Dkt. 48-2, at ECF p. 34. On May 5, 2017, plaintiff appealed to the full Commission, complaining that Ms. Li had "forbidden me to add many other issues in the complaint" and had done so "on purpose," to "reduce the public interest in the case." Id. at ECF p. 27.
On October 5, 2017, the CHR affirmed the dismissal. Dkt. 23 at ECF p. 154. This left plaintiff free to file his NYSHRL and NYCHRL claims in state court. See N.Y.C. Admin. Code § 8-502(f); Affirmation of Zoey Chenitz (Chenitz Aff.) (Dkt. 48-5, at ECF p. 4) ¶ 9. Instead, plaintiff filed a petition under N.Y. C.P.L.R. Art. 78, challenging the CHR dismissal. Dkt. 23 at ECF pp. 142-153. In its opposition to the Art. 78 petition, CHR explained that it dismissed plaintiff's claims because "it was unlikely that further investigation would result in a finding of probable cause." Chenitz Aff. ¶ 14. In particular, "it appeared Mr. Ghosh was not qualified for the jobs he sought[.]" Id. ¶ 20. In addition, plaintiff's pre-filing correspondence with NYCHA showed that "he blamed nepotism and favoritism for his failure to advance at NYCHA, not discrimination based on age, color, race, or religion or retaliation based on opposing discrimination." Id. ¶ 21. Thus, the Commission determined "that it was unlikely that further investigation would uncover evidence that NYCHA discriminated or retaliated against Mr. Ghosh and that the Commission's limited public resources would be better deployed elsewhere." Id. ¶ 22.
Plaintiff's Art. 78 petition was dismissed by means of an order issued from the bench on July 30, 2018 and entered on September 5, 2018. Dkt. 23 at ECF pp. 143-151. More than two years later, on March 23, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Dismissal and Notice of Rights letter, stating that it adopted the local agency's findings and informing plaintiff of his right to initiate a lawsuit under Title VII, the ADEA, or other federal statutes within 90 days. Id. at ECF p. 141.
B. Procedural Background
Plaintiff filed his original Complaint (Dkt. 1-1) on June 17, 2021 in New York Supreme Court, New York County. The Complaint was nine pages long, difficult to follow, and referred to numerous attachments and exhibits. However, only one document was actually attached: the EEOC's right-to-sue notice. Id. NYCHA removed the case to this Court on July 19, 2023 (Dkt. 1), and filed its Answer on July 27, 2021. (Dkt. 6.) The Hon. Analisa Torres, United States District Judge, referred the case to me for general pretrial management. (Dkt. 4.)
On September 29, 2021, following an initial case management conference, I gave plaintiff leave to amend his pleading and explained the federal pleading standard to him:
[P]laintiff must, in accordance with Fed.R.Civ.P. 8, provide a short and plain statement of the relevant facts supporting each claim he asserts. His amended complaint should tell the Court, to the extent possible: which statutes or laws he is suing under; what NYCHA did to violate each of those statutes or laws; who committed those violations on its behalf; when such violations occurred; how plaintiff was injured thereby; and what relief he seeks.
Order dated September 29, 2021 (9/29/21 Order) (Dkt. 13) at 1 (emphases in the original). On October 29, 2021, plaintiff filed his Amended Complaint (Am. Compl.) (Dkt. 14), which was ten pages long, difficult to follow, and referred to numerous attachments and exhibits. However, no documents were actually attached.
By letter dated November 9, 2021 (Def. 11/9/21 Ltr.) (Dkt. 16), NYCHA sought "clarification and guidance" from the Court in light of plaintiff's failure to "follow the Court's instructions." Def. 11/9/21 Ltr. at 1. NYCHA noted that the Amended Complaint invoked two federal statutes - Title VII and 42 U.S.C. § 1983 - but failed to "clearly set forth what actions NYCHA specifically took (or failed to take) that violated these two statutes," or when. Id. Defendant was also confused by plaintiff's reference to "dozens of different documents or related exhibits" that were referenced in but not attached to his filing. Id. at 2. NYCHA asserted that the Amended Complaint was too vague for it to answer, and that it could not even determine the "scope of potentially relevant facts and witnesses," id., which made it difficult to respond to plaintiff's first set of written discovery responses (served the day before, although I had not yet set a discovery schedule). Id. NYCHA requested an adjournment of the next case management conference until these issues could be addressed. Id.
On November 12, 2021, I adjourned the upcoming conference, extended NYCHA's answer deadline, and directed plaintiff to "revise and refile his Amended Complaint, so as to comply with this Court's [9/29/21 Order] no later than November 24, 2021." Order dated November 12, 2021 (11/12/21 Order) (Dkt. 17) at 1. For plaintiff's benefit, I reviewed the federal pleading standards once again, and explained that the Amended Complaint did not meet those standards because, although it appeared to allege unlawful retaliation, it "does not clearly identify either the conduct that led to the alleged retaliation . . . or the conduct that constituted the alleged retaliation," and did not "state when either the protected activity or the alleged retaliation occurred." 11/12/21 Order at 1-2. I also directed plaintiff to include any documents he referenced as "attachments" in the pleading. Id. at 2. After requesting and receiving an extension of time (Dkts. 20, 21), plaintiff filed his Revised Amended Complaint (without attachments) on December 30, 2021 (Dkt. 22), followed by his present pleading on January 3, 2022, and an errata list on January 14, 2022 (Dkt. 24).
In the RAC, plaintiff expressly invokes Title VII, the ADEA, the NYSHRL, the NYCHRL and - fleetingly - the ADA. RAC Id. ¶¶ 68-73. He adds that the retaliation and harassment against him "reached extreme level and it might be considered as intentional infliction of emotional distress (IIED)." Id. ¶ 75. However, he no longer cites or seeks any relief under § 1983. Plaintiff requests relief in the form of placement "in an appropriate position that fit his education and experience (such as NYCHA Health Officer, Health Initiatives Director, Healthy Home Vice President) from where the plaintiff could make the best contribution for NYCHA residents," id., as well as compensatory and punitive damages. RAC ¶ 76.
By letter dated January 18, 2022 (Def. 1/18/22 Ltr.) (Dkt. 25), NYCHA asked again for "guidance," arguing that although plaintiff had multiple opportunities to clarify his claims, the RAC "has gotten no more clear as to which statutory or common law causes of action [plaintiff] wishes to assert against NYCHA, or which specific facts [he] is alleging in support of each individual cause of action he wishes to raise." Def. 1/18/22 Ltr. at 1. Asserting that it still could not "adequately respond" to the RAC without relying on "speculation" and "guesswork" to tease plaintiff's "potential legal theories" out of his "disjoint narrative," NYCHA asked the Court to (i) instruct plaintiff again on "how to file a more definite statement," (ii) dismiss the RAC sua sponte, (iii) strike portions of the RAC pursuant to Fed.R.Civ.P. 12(e), leaving only the allegations that "might reasonably support" one or more cognizable claims, or (iv) grant NYCHA leave to file a motion to dismiss. Id. at 2-3. I agreed with defendant that "plaintiff's pleadings have grown lengthier and more convoluted over time," but concluded that he was "unlikely to benefit from yet another opportunity to replead, and yet another gentle reminder that Rule 8(a)(2) requires a 'short and plain statement of the claim.'" (Dkt. 26.) Consequently, I accepted the RAC as the operative pleading in this case and set a schedule for NYCHA's motion to dismiss. (Dkts. 26, 28.)
NYCHA filed its motion, supported by a memorandum of law (Def. Mem.) (Dkt. 42), on April 29, 2022. Judge Torres then expanded my reference to include report and recommendation on dispositive motions. (Dkt. 44.) Plaintiff filed his opposition papers on May 30, 2022, consisting of an initial brief (Dkt. 26), attaching 69 pages of exhibits; a declaration, attaching 46 pages of exhibits (Pl. Decl.) (Dkt. 47); and - later that same day - his revised brief, attaching 114 pages of exhibits. NYCHA filed its reply brief on June 24, 2022 (Def. Reply Mem.) (Dkt. 51), and plaintiff filed an unauthorized sur-reply on July 9, 2022 (Dkt. 52), attaching another 11 pages of exhibits.
II. THE PARTIES' ARGUMENTS
NYCHA argues: (1) that most of plaintiff's employment-related claims are barred, either because he failed to bring suit within the applicable statute of limitations or because he failed to exhaust his administrative remedies, Def. Mem. at 8-11; (2) that the RAC fails to state a cognizable claim for discrimination, id. at 11-13, for retaliation, id. at 14-16, or for intentional infliction of emotional distress, id. at 16-17; and (3) that no further leave to amend should be granted, as the exercise would be futile. Id. at 17.
In response, plaintiff argues: (1) that he has met the heightened pleading standard for fraud under Fed.R.Civ.P. 9(b), Pl. Mem. at 11-15; (2) that the RAC is "simple," "concise," and "direct," in compliance with Fed.R.Civ.P. 8(a), id at 15; (3) that the attachments to the RAC, as well as the additional attachments submitted with his opposition papers, "provide far more detail than is required to defeat a motion to dismiss," id. at 17-19; (4) that the RAC adequately pleads a "discriminatory and retaliatory scheme," as well as a "scheme to defraud," in violation of Title VII, the NYSHRL and the NYCHRL, id. at 20-23; (5) that the statute of limitations did not begin to run until plaintiff "knew or reasonably should have known of his . . . claim," id. at 23-24, which was not until 2010, id. at 7;and (6) that the RAC adequately pleads a claim for "breach of fiduciary duty" against NYCHA's directors (who are not named as defendants). Id. at 24.
Plaintiff explains that although defendant has been discriminating against him "continuously since [his] 2005 and 2006 job application[s]," it "took several years to know the fact," which he discovered "around August 6, 2010," when he "noticed many jobs plaintiff applied [for] was intentionally marked as disqualified." Pl. Mem. at 7; see also RAC ¶ 47 (alleging that he filed a complaint with NYCHA's DEO office in 2011).
In its reply brief, NYCHA reiterates the points that it made in its moving papers and adds that, to the extent plaintiff seeks to add new claims for fraud and breach of fiduciary duty, he cannot do so in his opposition brief. Def. Reply Mem. at 9.
III. ANALYSIS
A. Rule 8(a)(2)
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Both brevity and clarity are required. "[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Moreover, "the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Id.; see also Strunk v. U.S. House of Representatives, 68 Fed.Appx. 233, 235 (2d Cir. 2003) (summary order) ("The purpose of this requirement is to provide fair notice of the claims and to enable the adverse party to answer the complaint and prepare for trial."). Regardless of its length, therefore, a complaint fails to comply with Rule 8(a)(2) if it is "confused, ambiguous, vague, or otherwise unintelligible." Strunk, 68 Fed.Appx. at 235 (quoting Salahuddin, 861 F.2d at 42). It is not the Court's job - nor the opposing party's - to decipher a complaint that is "so poorly composed as to be functionally illegible." Avramham v. N.Y., 2020 WL 4001628, at *2 (S.D.N.Y. July 15, 2020).
A pleading that fails to comply with the command of Rule 8(a)(2) may be dismissed. In our Circuit, such dismissals are not uncommon. See, e.g., Blakely v. Wells, 209 Fed. App'x 18, 20 (2d Cir. 2006) (summary order) (affirming dismissal of a 57-page complaint for prolixity); Nygard v. Bacon, 2021 WL 3721347, at *7 (S.D.N.Y. Aug. 20, 2021) (dismissing "lengthy" 144-page complaint pursuant to Rule 8(a)). Indeed, if violative pleadings are not dismissed, they place an "unjustified burden" on the defendants required to respond to them. Salahuddin, 861 F.2d at 42. Thus, courts rely on Rule 8(a) not only to dismiss complaints that are unnecessarily prolix, but also complaints that are "unintelligible" or "indiscernible," Strunk, 68 Fed.Appx. at 235; complaints that contain "unrelated and vituperative charges that defied comprehension," Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972); complaints that are "convoluted, confusing, and difficult to comprehend," Phipps v. City of New York, 2019 WL 4274210, at *2 (S.D.N.Y. Sept. 10, 2019); and complaints that "ramble," "needlessly speculate, accuse and condemn," and "contain circuitous diatribes far removed from the heart of the claim." Coon v. Benson, 2010 (S.D.N.Y. March 8, 2010) (quotation marks and citation omitted).
A plaintiff's pro se status will not protect him from a Rule 8(a) dismissal. See Owens v. McCall, 5 Fed.Appx. 15, 16 (2d Cir. 2001) (summary order) ("Although a complaint filed by a pro se litigant is to be liberally construed in his favor," dismissal was appropriate where "we are no more able than the district court to determine - even under such a liberal construction - the true substance of the plaintiff's claims."); Coon, 2010 WL 769226, at *3 ("[D]espite the liberal construction given to pro se complaints, that policy does not mandate that a Court sustain every pro se complaint even if it is incoherent, rambling, and unreadable.") (internal citation and punctation omitted).
Moreover, "[a]lthough a plaintiff should generally be given leave to amend following a Rule 8 dismissal," dismissal without leave to amend is proper where "prior leave to amend was generously extended and the successive pleading remains prolix and unintelligible." Strunk, 68 Fed.Appx. at 235 (affirming dismissal of pro se complaint with prejudice after "the District Court allowed Strunk to amend three times and instructed Strunk how to cure the pleading defects each time"); see also Dyson v. New York Health Care, Inc., 353 Fed.Appx. 502, 503 (2d Cir. 2009) (summary order) (affirming dismissal of pro se complaint with prejudice after "the district court afforded Dyson three opportunities" to "comply with Rule 8(a)(2)"); Jones v. Nat'l Commc'ns & Surveillance Networks, 266 Fed.Appx. 31, 33 (2d Cir. 2008) (summary order) ("Given the numerous opportunities that Jones has had to clarify or restate his claims, his failure to do so provides a sufficient basis for a finding that granting him leave to amend his complaint would be futile").
Here, as in Strunk, Dyson, and Jones, plaintiff has already been given multiple opportunities to amend his complaint, but it remains largely unintelligible. While plaintiff sprinkles legal terms like "discrimination," "retaliation," and "harassment" liberally throughout his pleading - frequently enough to inform the reader of the nature of the claims he is attempting to bring - the underlying facts are obscured within a convoluted series of paragraphs that make it difficult to understand who did what to whom, or when, much less why the plaintiff believes that any of the slights and injustices he lists (including, by way of example, not being promoted to level two Research Scientist in 2006, not being permitted to meet Mr. Rhea in 2009, having his building assignments changed on unspecified dates, being unjustly accused, by unnamed supervisors, of "using net for Face Book friend invitation" in 2011, and not being promoted to Community Engagement Specialist in 2015) constituted discrimination based on his age, race, or national origin, or were inflicted upon him in retaliation for protected conduct such as his multiple internal and external complaints of discrimination.
Moreover, the RAC regularly veers off into lengthy denunciations of NYCHA's COVID policies, nepotism, and general managerial incompetence, see, e.g., RAC ¶¶ 5, 7, 8, 11, 12, 31, 34, 36-40, 61, and devotes several paragraphs to the alleged misconduct of a CHR staff attorney (and various NYCHA attorneys) in connection with plaintiff's 2017 administrative complaint. Id. ¶¶ 1517. These are exactly the sort of "circuitous diatribes far removed from the heart of the claim" discussed in Coon, 2010 WL 769226, at *3. What is left of the RAC is largely incomprehensible, extraordinarily difficult to parse, and "so poorly composed as to be functionally illegible." Avramham, 2020 WL 4001628, at *2. Its 375 pages of attachments - unlabeled, and presented in no discernable order - unfairly demand that the reader "select the relevant material from a mass of verbiage," Salahuddin, 861 F.2d at 42, and the document as a whole is "incoherent, rambling, and unreadable." Coon, 2010 WL 769226, at *3.
Plaintiff had multiple opportunities to correct these errors. On September 29, 2021, I instructed plaintiff that his amended complaint "should tell the Court, to the extent possible: which statutes or laws he is suing under; what NYCHA did to violate each of those statutes or laws; who committed those violations on its behalf; when such violations occurred; how plaintiff was injured thereby; and what relief he seeks." 11/29/21 Order at 1. I gave the same instructions on November 12, 2021, adding that, in order to plead a Title VII retaliation claim, he must clearly identify both "the conduct that led to the alleged retaliation" and "the conduct that constituted the alleged retaliation," and specify the date(s) on which "the protected activity or the alleged retaliation occurred.". 11/12/21 Order at 1-2. Plaintiff failed, for the most part, to follow these instructions.
In Coon, the court dismissed plaintiff's amended complaint for failure to comply with Rule 8(a)(2) after he failed to follow the court's instruction that he explain "who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation(s) occurred; where such violation(s) occurred; and why Plaintiff is entitled to relief," and instead submitted an amended complaint that "contains conclusory and vague factual allegations regarding his state court litigation, amounting to a long list of accusations about, and objections to, the conduct of various individuals involved in various capacities in that action." 2010 WL 769226, at *3. Those allegations were "combined with conclusory assertions that Plaintiff consequently suffered the violation of his rights to access to the courts and to due process and discrimination on the basis of his disability and his poor person status, caused, in part, by a failure to train or supervise," but the court was still unable to discern, after a careful reading of the amended pleading, "how Plaintiff's federally-protected rights were violated, by whom, and when." Id. Similarly, in the case at bar, plaintiff has in effect married a long, rambling, and frequently incomprehensible list of employment grievances with the conclusory charge that all of them - from his failure to rise through the ranks at NYCHA to the negative counseling memos in his file - must be motivated by discrimination based upon his age, race, or national origin, and/or retaliation for his past complaints of discrimination. As a result, the RAC should be dismissed for failure to comply with Rule 8(a)(2).
1. Standards
Even if a complaint meets the "short and plain statement" requirement of Rule 8(a)(2), it is properly dismissed pursuant to Rule 12(b)(6) if it fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the district court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy, 482 F.3d at 191, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A federal court may not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555), and will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
In addition to the facts alleged in the body of the complaint, the court may consider documents "attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference," Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)); "documents that, although not incorporated by reference, are 'integral' to the complaint," Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)); and documents of which judicial notice may be taken. Chambers, 282 F.3d at 153, including pleadings and other documents filed in related legal proceedings. Kramer, 937 F.2d at 774.
2. Pro Se Parties
Where, as here, the plaintiff is pro se, his complaint must be construed "liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests." T'Kach, 714 F.3d at 103. This mandate "applies with particular force when a plaintiff's civil rights are at issue," Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009), and permits the court, in its discretion, to consider factual allegations made in a pro se plaintiff's opposition papers (or the attachments thereto) "as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint." George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012); accord Adeniji v. New York State Off. of State Comptroller, 2019 WL 4171033, at *2 (S.D.N.Y. Sept. 3, 2019). I have done so here, and have carefully considered the new factual assertions made in plaintiff's opposition papers, and the exhibits attached thereto, to the extent they are consistent with the allegations made in the RAC. However, even a pro se plaintiff "must state a plausible claim for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Moreover, the court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint." Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005).
More generally, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet, 640 F.Supp.2d at 348 (internal quotation marks and citation omitted). Consequently, I have not considered plaintiff's unauthorized sur-reply brief, which was filed in violation of Local Civ. R. 6.1. See Paravas v. Cerf, 2022 WL 203168, at *2 (S.D.N.Y. Jan. 24, 2022) (noting that "Local Civil Rule 6.1 provides for opening papers, opposition papers, and reply papers, in that order," and disregarding unauthorized "amended affidavit" filed out of time by pro se plaintiff); Sachs v. Matano, 2016 WL 4179792, at *2 n.5 (E.D.N.Y. July 15, 2016) (declining to consider unauthorized sur-reply brief submitted by pro se plaintiff because that plaintiff was obligated, "notwithstanding his pro se status, to be aware of and adhere to all applicable procedural rules"), report and recommendation adopted, 2016 WL 4186708 (E.D.N.Y. Aug. 4, 2016).
3. Plaintiff's Federal Claims Are Largely Time-Barred
Both Title VII and the ADEA require that a plaintiff file a charge of discrimination or retaliation with the EEOC, or with a local employment discrimination agency (such as the CHR), within 300 days of the discriminatory or retaliatory act. 42 U.S.C. § 2000e-5(e) (Title VII); 29 U.S.C. § 626(d) (ADEA). "These filing deadlines act as a statute of limitations, and failure to file a timely administrative charge acts as a bar to a federal action." Johnson v. Wendy's Corp., 2021 WL 243055, at *4 (S.D.N.Y. Jan. 25, 2021) (quoting Lomako v. N.Y. Inst. of Tech., 2010 WL 1915041, at *4 (S.D.N.Y. May 12, 2010). The plaintiff must also receive a right-to-sue letter from the EEOC, after which he has 90 days to initiate a lawsuit. 42 U.S.C. § 2000e-5(f); 29 U.S.C. § 626(d). "Exhaustion of administrative remedies through the EEOC is 'an essential element' of the Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal court." Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001).
Here, plaintiff attempts to allege discrimination and retaliation claims dating back to 2006, when NYCHA failed to promote him to level two Research Scientist. RAC ¶ 57, 59. But he did not file his Verified Complaint with the CHR until February 2, 2017, see RAC ¶¶ 4, 45, Dkt. 23 at ECF pp. 156-57, meaning that he cannot sue for any discriminatory conduct occurring earlier than April 14, 2016, 300 days prior to that filing. Plaintiff's argument that the federal limitations period did not commence until he "knew or reasonably should have known of his . . . claim," Pl. Mem. at 23-24, is unavailing, because the limitations period for failure-to-promote claims accrues "when the plaintiff receives notice of the adverse action." Cetina v. Longworth, 583 Fed.Appx. 1, 3 (2d Cir. 2014); see also Anderson v. City of New York, 2017 WL 3251603, at *4 (S.D.N.Y. July 31, 2017) (collecting cases). In any event, the discovery rule for which plaintiff contends would not assist him, because he concedes that he began complaining about employment discrimination to NYCHA's HR department in in 2006, see RAC ¶ 47, 59, and to its DEO in 2011. Id. ¶ 47.
Plaintiff filed "several" complaints with HR, and several more with DEO. RAC ¶ 47. Additionally, he complained about NYCHA's allegedly discriminatory hiring practices to State Senator Toby Ann Stavisky in 2014, and to State Attorney General Eric T. Schneiderman and U.S. Senator Kirsten Gillibrand in 2016. Dkt. 23 at ECF pp. 165-68.
Nor may plaintiff expand his claims through the "continuing violation" doctrine, under which, "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (internal quotation marks omitted). In this Circuit, "the continuing violations doctrine is disfavored outside of a hostile work environment situation, and should only be applied in compelling circumstances." Roches-Bowman v. City of Mount Vernon, 2022 WL 3648394, at *4 (S.D.N.Y. Aug. 24, 2022) (quoting Williams v. New York City Dep't of Educ., 2019 WL 4393546, at *9 (S.D.N.Y. Aug. 28, 2019)). The doctrine is not available at all in failure-to-promote cases, because "failures to promote are 'discrete acts' of discrimination and thus do not implicate the continuing-violation doctrine." Chin, 685 F.3d at 156 (2d Cir. 2012); accord Rowe v. New York State Dep't of Tax'n & Fin., 786 Fed.Appx. 302, 304 (2d Cir. 2019). Consequently, in considering whether plaintiff has stated a plausible claim under Title VII or the ADEA, this Court need not consider his allegations concerning events prior to April 14, 2016.
Defendants argue that this Court may also ignore any alleged discrimination or retaliation that occurred after February 2, 2017 (the date on which plaintiff filed his CHR complaint), because plaintiff never amended his administrative charge or filed a new one, "thus rendering any claims that allegedly accrued after February 2, 2017 improper and subject to dismissal for failure to exhaust administrative remedies." Def. Mem. at 10. In fact, as the Second Circuit explained in Legnani, a plaintiff need not file a new administrative charge where, as here, he claims that the defendant "retaliated against [him] for filing the initial EEOC charge." 274 F.3d at 686. Consequently, in determining whether plaintiff has stated a cognizable claim under Title VII or the ADEA, the Court properly considers all of NYCHA's alleged conduct after April 14, 2016.
4. Plaintiff Fails to Allege a Plausible Federal Discrimination Claim
Title VII prohibits employment discrimination against an employee based on the person's "race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2. The ADEA prohibits "arbitrary age discrimination in employment." 29 U.S.C.A. § 621. Claims brought under Title VII and the ADEA are both analyzed under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Mitchell v. New York City Dep't of Educ., 2021 WL 8013770, at *6 (S.D.N.Y. May 7, 2021) (analyzing Title VII, NYSHRL, and ADEA claims together under the McDonnel Douglas standard), report and recommendation adopted sub nom. Mitchell v. New York City Dep't of Educ., 2022 WL 621956 (S.D.N.Y. Mar. 3, 2022); Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 450 n.11 (S.D.N.Y. 2013) (addressing discrimination claims based on race, gender, and age together under the McDonnell Douglas standard until the "final stage" of the ADEA analysis). Under that standard, "what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Santiago v. ACACIA Network, Inc., 2022 WL 6775835, at *4 (S.D.N.Y. Oct. 10, 2022) (applying Littlejohn test to Title VII case); Lebowitz v. New York City Dep't of Educ., 407 F.Supp.3d 158, 170 (E.D.N.Y. 2017) (applying Littlejohn test to ADEA case). Additionally, an ADEA plaintiff must plausibly allege that "age was the 'but-for' cause of the challenged action," that is, "that the adverse employment action would not have occurred without it." Lebowitz, 407 F.Supp.3d at 172.
A plaintiff can support "the proposition that the employer was motivated by discriminatory intent" either "directly, by alleging facts that show an intent to discriminate, or indirectly, by alleging circumstances that give rise to a plausible inference of discrimination." Lebowitz, 407 F.Supp.3d at 170-71; see also Santiago, 2022 WL 6775835, at *4 (factual allegations sufficient to raise an inference of discrimination can include "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge"). While the plaintiff's initial pleading burden as to the necessary discriminatory intent is low, it is not non-existent. Thus, in a failure-to-hire or failure-to-promote case, it is not enough for the plaintiff simply to allege that he was qualified for a position but did not get it. He must present facts - not speculation or conclusions - that "support the proposition" of a discriminatory motivation. Littlejohn, 795 F.3d at 311; see also Iqbal, 556 U.S. at 678 ("mere conclusory statements" will not do).
The RAC does not meet this standard. A failure to promote can constitute an adverse employment action, see Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), and plaintiff alleges that he applied for "more than 70 vacanc[ies]" in the "last two to three years," RAC ¶ 11, that is, within the limitations period. However, the only job he claims to have been "highly qualified" for is identified vaguely as the "topmost position" in the NYCHA Environmental Health & Safety (EH&S) office. Id. ¶ 11. As to that position, plaintiff does not provide any facts to support his claim to have been "highly qualified." Nor does he provide any facts to suggest that his race, or national origin was "a motivating factor in the employment decision," Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015), much less that his age was "the 'but-for' cause of the challenged action[.]" Lebowitz, 407 F.Supp.3d at 172. No "invidious comments" are alleged, and no information is presented concerning the successful candidate for that position (or for any other positions that plaintiff applied for within the limitations period).
To be sure, plaintiff alleges - repeatedly - that NYCHA's failure to promote him was due to discrimination. See, e.g., RAC ¶¶ 5, 45. But these are conclusions, and cannot substitute for the necessary "connective tissue that links [his] protected status to the alleged failure to [promote]." Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., 2019 WL 6916099, at *5 (S.D.N.Y. Dec. 19, 2019) (dismissing Title VII claim where the plaintiff "alleged no facts" suggesting that "Morgan Stanley's decision not to hire her was based on her gender"); see also Mitchell, 2021 WL 8013770, at *8 (plaintiff's "assertion that he was the victim of age, race, and gender discrimination," based only on his "belief and speculation," does not "plausibly establish his discrimination claim"); Akinsanya v. New York City Health & Hosps. Corp., 2017 WL 4049246, at *6 (S.D.N.Y. July 28, 2017) (plaintiff's claim that she was "wrongfully terminated based on race" was insufficient where she failed to provide any "information" about what role, if any, her race "played in her employer's decision to end its employment relationship with her"), report and recommendation adopted sub nom. Akinsanya v. New York City Health & Hosps. Corp.-Kings Cnty. Hosp. Ctr., 2017 WL 4023138 (S.D.N.Y. Sept. 12, 2017).
Besides the failure to promote, plaintiff does not identify any timely and actionable conduct on the part of NYCHA. "An adverse employment action is a materially adverse change in the terms and conditions of employment." Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (internal quotation marks omitted). The memos placed in plaintiffs file, see RAC ¶¶ 19, 24, 54 - which did not lead to discipline, demotion, or any other tangible consequence - do not rise to that level. See Paupaw-Myrie v. Mount Vernon City Sch. Dist., 2023 WL 1109702, at *8 (S.D.N.Y. Jan. 30, 2023) ("counseling memos" did not "constitute adverse actions" for purposes of Title VII); Green v. Jacob & Co. Watches, Inc., 248 F.Supp.3d 458, 468 (S.D.N.Y. 2017) ("negative evaluations of an employee's work are not materially adverse employment actions unless such conduct is accompanied by negative consequences, such as demotion, diminution of wages, or other tangible loss"); Watson v. Geithner, 2013 WL 4028152, at *10 (S.D.N.Y. Aug. 8, 2013) (the issuance of "counseling memos," "unaccompanied by demotion, diminution of responsibilities or the like, does not constitute an adverse employment action for purposes of a discrimination claim"), report and recommendation adopted, 2013 WL 5441748 (S.D.N.Y. Sept. 27, 2013). Plaintiff's allegations that he was not given a reference letter "required for admission (2019) in course with GW University," and that "Manager Michael Wyands and RAM Renee Taylor interrupted and harassed the plaintiff [during a] team conference discussion (2021)," RAC ¶¶ 49, 67, fall even further from the mark. Moreover, as with plaintiff's unsuccessful applications for senior positions, the "connective tissue" is missing, Scalercio-Isenberg, 2019 WL 6916099, at *5, in that plaintiff offers no "linkage" between these events and his age, race, or national origin. Consequently, plaintiff has failed to plead a discrimination claim under Title VII or the ADEA.
5. Plaintiff Fails to Allege a Plausible Federal Retaliation Claim
For a retaliation claim to survive a motion to dismiss, "the plaintiff must plausibly allege that: (1) defendants discriminated - or took an adverse employment action - against him, (2) because he has opposed any unlawful employment practice." Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega, 801 F.3d at 90). To satisfy the first element, the plaintiff must plausibly allege that the adverse employment action was "harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination." Shultz v. Congregation Shearith Israel, 867 F.3d 298, 309 (2d Cir. 2017). To satisfy the second element, the plaintiff "must plausibly allege that the retaliation was a 'but-for' cause of the employer's adverse action," that is, "that the adverse action would not have occurred in the absence of the retaliatory motive." Vega, 801 F.3d at 90-91 (cleaned up). "Causation may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity." Duplan, 888 F.3d at 625.
Here, plaintiff appears to claim that every setback and slight he has suffered at NYCHA since 2006, when he first complained to its HR department about hiring discrimination, constitutes retaliation. RAC ¶ 57. He further alleges that the retaliation became "extreme" after he filed his CHR complaint in February 2017. Id. ¶ 4. Thus, in plaintiff's view, NYCHA's failure to promote him since 2006 constitutes retaliation (as well as discrimination). See id. ¶ 31. Similarly, plaintiff expressly characterizes the counseling memos placed in his file (including those prepared as late as 2018 and 2020) as "retaliatory memos," id. ¶¶ 24-25, 29, and appears to believe that NYCHA's failure to give him a reference letter in 2019, and the conduct of Mr. Wyands and Ms. Taylor when they interrupted him during a 2021 team meeting, were also part of a retaliatory campaign. See RAC ¶¶ 49, 67.
Once again, however, plaintiff has failed to supply the required causal connection between his protected activity and NYCHA's allegedly retaliatory conduct. He alleges no facts that could constitute "direct evidence of retaliatory animus." Duplan, 888 F.3d at 625. To the contrary: as shown by the exhibits submitted with his opposition brief, NYCHA's Executive Vice President, Mr. Jew, affirmatively suggested to plaintiff in 2016 that he "consider seeking relief through an external human rights agency," and helpfully provided "a list of such agencies" for plaintiff's convenience. Dkt. 48-2, at ECF p. 11.
Nor can plaintiff rest on the temporal connection between his complaints and NYCHA's conduct. First, "courts uniformly hold that the temporal proximity must be very close." Buchanan v. City of New York, 556 F.Supp.3d 346, 368 (S.D.N.Y. 2021). Plaintiff, however, has made no effort to tie any particular adverse action to any one of his discrimination complaints. Second, in order to create an inference of retaliatory animus through temporal proximity, a plaintiff must show that the personnel responsible for the alleged retaliation knew about the protected activity. See Thomas v. DeCastro, 2018 WL 1322207, at *10 (S.D.N.Y. Mar. 13, 2018) (dismissing retaliation claim where there was no allegation that Encarnacion, the alleged retaliator, was "aware of" plaintiff's participation in an investigation that resulted in Encarnacion being "locked out"); Mateo v. Dawn, 2016 WL 5478431, at *8 (S.D.N.Y. Sept. 28, 2016) (plaintiff's failure to allege any knowledge of the protected conduct by the alleged retaliators resulted in a "fail[ure] to establish a plausible causal connection" for the purposes of a retaliation claim); Lyons v. New York, 2016 WL 5339555, at *9 (S.D.N.Y. Sept. 22, 2016) ("an employer does not have the opportunity to retaliate until he becomes aware of the protected activity") (quoting Nielsen v. New York City Comm'n on Human Rights, 1998 WL 20004, at *10 n.2 (S.D.N.Y. Jan. 20, 1998)). Here, plaintiff does not allege that any of the NYCHA supervisors whose conduct he characterizes as retaliatory were aware of his CHR complaint. Consequently, plaintiff has failed to plead a retaliation claim under Title VII or the ADEA.
6. No Leave to Amend Should Granted
"Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal quotation marks and citation omitted). Where amendment would be futile, however, leave should be denied. Jackson v. Wells Fargo Home Mortg., 811 Fed.Appx. 27, 30 (2d Cir. 2020) (summary order). Here, no amendment could revive the time-barred portion of plaintiff's Title VII and ADEA claims. Moreover, he has already amended his complaint twice, with judicial guidance, resulting in a "lengthier and more convoluted" document but no improvement in readability or substance. (Dkt. 26.) There is thus no reason to believe that, if given yet another opportunity, he could plead a cognizable claim for either discrimination or retaliation.
In his opposition brief, plaintiff appears to raise two entirely new claims, not pleaded in the RAC: (1) fraud, see Pl. Mem. at 9-14, 18, 20-22, 26-27, and (2) breach of fiduciary duty by NYCHA's board members, who "supported" the alleged discrimination and retaliation against plaintiff. Id. at 24-25. To the extent plaintiff's argument on these points can be construed as a motion for leave to expand his pleading by amendment, that motion should be denied as futile. "The elements of common law fraud are a material, false representation, an intent to defraud thereby, and reasonable reliance on the representation, causing damage to the plaintiff." CapLOC, LLC v. McCord, 2020 WL 1036044, at *14 (S.D.N.Y. Mar. 3, 2020) (Torres, J.) (quoting Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir. 1987)). Here, plaintiff accuses various NYCHA personnel of making false statements about him, but has never alleged that he relied, to his detriment, on any false statement made to him, and therefore has no basis upon which to assert a claim of fraud. Further, while directors owe fiduciary duties to the corporation or other entity on whose board they sit (and, in the corporate world, to its shareholders), there is no authority for the proposition that they owe such duties to individual employees. See generally Lazar v. City of New York, 2022 WL 2953934, at *4 (S.D.N.Y. July 26, 2022) (members of cooperative board owe fiduciary duties to the cooperative and its unit holders, but not to its employees). In any event, fraud and breach of fiduciary duty are state law claims, as to which this Court can and should decline supplemental jurisdiction. See infra at Part III(C).
"[W]here pleading deficiencies have been identified a number of times and not cured, there comes a point where enough is enough." State Street Global Advisors Tr. Co. v. Visbal, 462 F.Supp.3d 435, 443 (S.D.N.Y. 2020) (quoting In re Initial Pub. Offering Sec. Litig., 241 F.Supp.2d 281, 397 (S.D.N.Y. 2003)). That point has been reached here. Consequently, plaintiff's federal claims should be dismissed with prejudice.
C. Plaintiff's State Law Claims
Plaintiff's state law claims - including those brought under the NYSHRL, the NYCHRL, and the common law - are within this Court's supplemental jurisdiction only because they form "part of the same case or controversy" as his Title VII and ADEA claims. See 28 U.S.C. § 1367(a). Supplemental jurisdiction may be declined where "the district court has dismissed all claims over which it has original jurisdiction." Id. § 1367(c)(3). Although the statute is phrased in discretionary terms, and there is no "mandatory rule to be applied inflexibly in all cases," Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), in the "usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims." Id.; see also Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006) (reversing district court decision to retain supplemental jurisdiction over state law claims after dismissing federal claim, citing "the absence of a clearly articulated federal interest"); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.").
Here, there is no discernable federal interest embedded in plaintiff's state-law claims. Nor do any of the other Cohill factors militate in favor of this Court retaining jurisdiction over those claims. Although plaintiff's state and local discrimination and retaliation claims are similar to their federal counterparts, they are not identical, and "must be analyzed separately," thus presenting "questions 'best left to the courts of the State of New York.'" Kalia v. City Univ. of New York, 2020 WL 6875173, at *7 (S.D.N.Y. Nov. 23, 2020) (quoting Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001)); see also Davis v. Town of Hempstead, 2019 WL 235644, at *9 (E.D.N.Y. Jan. 16, 2019) (declining supplemental jurisdiction over NYSHRL claims once there were "no viable federal claims against any defendant"); St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 334 (E.D.N.Y. 2014) (declining supplemental jurisdiction over NYCHRL claim after dismissing claims under Title VII and the NYSHRL); Sklodowska-Grezak v. Stein, 236 F.Supp.3d 805, 810 (S.D.N.Y. 2017) (declining supplemental jurisdiction over IIED and other state law claims because the court had dismissed all claims over which it had original jurisdiction and "because of the early stage at which those claims are being dismissed"). Upon dismissal of plaintiff's Title VII and ADEA claims, therefore the Court should also dismiss the remaining state law claims, without prejudice to refiling in state court, for lack of subject-matter jurisdiction.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that defendant's motion to dismiss be GRANTED, and that plaintiff's claims be DISMISSED WITH PREJUDICE for failure to comply with Fed.R.Civ.P. 8(a)(2). In the alternative, I recommend that plaintiff's federal claims be DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, and that this Court decline to retain jurisdiction over his state law claims.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Torres. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).