Opinion
23-CV-1301 (LTS)
08-30-2023
SERGEI MOROSHKIN, Plaintiff, v. NATIONAL COUNCIL ON THE AGING SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM (SCSEP); LORRAINE CORTES-VAZQUEZ, COMMISSIONER OF DEPARTMENT FOR THE AGING, NEW YORK CITY, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, who is proceeding pro se, brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-1, alleging that Defendants retaliated against him by terminating his participation in a program. By order dated March 1, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. 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 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 of the claims raised. 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.
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 filed this complaint against the National Council on Aging's (“NCOA”) Senior Community Service Employment Program (“SCSEP”)and Lorraine Cortes-Vazquez, the Commissioner of the New York City Department for the Aging. He asserts that Defendants violated the “anti-retaliation provision, Civil Rights Act of 1964 § 704(a), 42 U.S.C.A. § 2000e-3(a).” (ECF 1, at 2.)
The SCSEP is a federally funded program for seniors enacted by Congress under the Older Americans Act (“OOA”), 42 U.S.C. § 3001 et seq., implemented by the United States Department of Labor (“DOL”), and administered by state agencies and non-profit organizations. See https://www.dol.gov/agencies/eta/seniors (last visited Aug. 3, 2023); see also Hill v. Ser Jobs for Progress Nat., Inc., No. 21-1079, 2021 WL 4272050, at *1 (10th Cir. Sept. 21, 2021).
The following information is taken from the complaint. On January 3, 2023, Plaintiff filed a complaint “about discrimination” by Debra Joseph, Skills Center Manager of SCSEP, who had terminated his participation in the program. (Id. at 5.) Joseph had filed an “SCSEP Exit Form” at the behest of Siveem El-Nahar, Senior Director of the Adult Workforce, despite Plaintiff telling her, “You retaliate me.” (Id.)
The Court quotes from the complaint verbatim, and all spelling, grammar, and punctuation are as in the original, unless noted otherwise.
On January 11, 2023, Plaintiff forwarded copies of his complaint to Defendants Cortes-Vazquez and NCOA. He claims that “because of their negligence or instructions to terminate [him] from paid participation in SCSEP, [he] lost [his] income and became unemployed by retaliation of these officials of NYC and [NCOA].” (Id.) Plaintiff seeks $50,000 in damages.
DISCUSSION
A. Claims under Title VII
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). Title VII also prohibits an employer from retaliating against an employee who has opposed any practice made unlawful by those statutes, or who has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under the statutes. 42 U.S.C. § 2000e-3(a); See Green v. Mount Sinai Health Sys., Inc., 826 Fed.Appx. 124, 125 (2d Cir. 2020) (“Title VII prohibits employers from retaliating against any employee because that individual has opposed any practice made unlawful by Title VII.” (quoting Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015))).
To state a claim for retaliation under Title VII, a plaintiff must plead facts that show that (1) he “participated in a protected activity known to the defendant”; (2) “the defendant took an employment action disadvantaging” him; and (3) there was a “connection between the protected activity and adverse action.” Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (citing Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004)); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 89 (2d Cir. 2015). “[G]eneralized complaints of unfair treatment do not qualify as a protected activity.” Eckhart v. Fox News Network, LLC, No. 20-CV-5593 (RA), 2021 WL 4124616, at *20 (S.D.N.Y. Sept. 9, 2021) (internal quotation marks and citation omitted). To be a protected activity, the plaintiff “must put the employer on notice that the [plaintiff] believes that discrimination is occurring.” Id. (citation omitted). A plaintiff need not show, however, that the conduct he opposed actually violated Title VII, only that he possessed a “good faith, reasonable belief that the underlying employment practice was unlawful” under that statute. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998) (internal quotation marks and citation omitted). Furthermore, “implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII.” Jackson v. Syracuse Newspapers, No. 10-CV-1362 (NAM), 2013 WL 5423711, at *20 (N.D.N.Y. Sept. 26, 2013) (citation omitted). For the causation element, a plaintiff can show a retaliatory purpose indirectly by pleading facts “showing that the protected activity was closely followed in time by the adverse action.” See Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation marks omitted).
1. Plaintiff does not state a retaliation claim under Title VII.
Plaintiff does not allege facts suggesting that Defendants retaliated against him in violation of Title VII. Although the complaint does not provide clear facts, Plaintiff's assertions suggest that he was a participant in the SCSEP administered by the NCOA and possibly, the New York City Department for the Aging. He alleges that, on January 3, 2023, he wrote a discrimination complaint against Joseph, the Skills Center Manager of the SCSEP, and indicates he did this because she had terminated his participation in the program at the behest of the Senior Director of the Adult Workforce. Plaintiff also claims that, when Joseph terminated his participation, he told her, “You retaliate me.” (ECF 1, at 5.) Plaintiff later forwarded his complaint against Joseph to the Defendants NCOA and Cortes-Vazquez, and asserts that “their negligence or instructions to terminate” his participation in SCSEP caused him to lose his employment and income and constitute retaliation. (Id.)
The filing of a formal or informal complaint challenging discrimination is a protected activity for purposes of retaliation claims under Title VII. See Summa v. Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013). Here, however, Plaintiff does not allege facts suggesting that he opposed discrimination based on race, color, religion, sex or national origin that he in good faith or reasonably believed violated Title VII. Nor does he allege any facts suggesting that his complaint put his employer on notice that he believed that discrimination had occurred in violation of Title VII, which then led to the termination of his participation in SCSEP. Rather, Plaintiff's complaint indicates that Joseph terminated his participation and he then submitted a complaint alleging discrimination and retaliation. Even if the Court were to assume that Plaintiff first filed a complaint and then his participation was terminated, there is no indication at all that he opposed conduct that he had a good faith or reasonable belief was prohibited by Title VII. Because Plaintiff does not allege facts suggesting that he participated in protected conduct by opposing actions which he in good faith or reasonably believed constituted discrimination based on race, color, religion, sex or national origin which led to the termination of his participation in the SCSEP, he fails to state a viable claim for retaliation under Title VII.
The Court, however, grants Plaintiff leave to file an amended complaint should he be able to articulate facts suggesting that he was subjected to retaliation for opposing discrimination in violation of Title VII. Plaintiff must specify the discriminatory conduct prohibited by Title VII that he opposed and allege facts showing that his employer terminated his participation in the SCSEP because of that protected conduct.
2. Plaintiff cannot bring a Title VII claim against an individual.
Even if Plaintiff were to assert a viable Title VII retaliation claim, he cannot bring Title VII claims against Defendant Cortes-Vazquez. Title VII only provides for the liability of an employer and other covered entities, such as an employment agency, labor organization, or joint labor-management committee. See 42 U.S.C. § 2000e-2. The only proper defendant for an action under Title VII is a plaintiff's employer or another entity covered by the statute. See Chibuzor v. Corwin, No. 20-CV-9643, 2020 WL 6905304, at *2 (S.D.N.Y. Nov. 23, 2020); Mira v. Kingston, 218 F.Supp.3d 229, 235 (S.D.N.Y. 2016). Individuals are not subject to liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“[I]ndividual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII.”), abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).
The existence of an employer-employee relationship is an essential element of a Title VII claim. Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 446 (S.D.N.Y. 2013) (citing Gulino v. New York State Educ. Dep't, 460 F.3d 361, 370 (2d Cir. 2006)). At this time, the Court need not address whether Plaintiff's participation in the SCSEP created an employer-employee relationship with Defendant NCOA. The Court notes that several federal courts have recognized that participation in SCSEP does not create an employment relationship between participants and SCSEP administrators. See, e.g., Guy v. AARP Found., No. 19-CV-2117, 2020 WL 999197, at *3 (E.D. Mo. Feb. 28, 2020); Spell v. Md. Human Rels. Comm'n, No. 11-CV-0803, 2011 WL 6000862, at *5, *16 (D. Md. Nov. 28, 2011); Singleton v. City of Greenville Hous. Auth., No. 06:09-CV-02104, 2011 WL 883669, at *2 (D.S.C. Mar. 11, 2011); Molina-Olivio v. Experience Works, Inc., No. 09-CV-1331, 2009 WL 1767552, at *4 (D.P.R., June 17, 2009); Henderson v. YMCA & AARP, No. 05-CV-3179, 2006 WL 752792, at *2 (C.D. Ill. Mar. 21, 2006). However, the United States Court of Appeals for the Tenth Circuit, in an unpublished opinion, noted that both the OOA and the DOL's implementing regulations for the SCSEP are “silent on the question of whether SCSEP participants are employees of the grantees or host agencies.” Hill, 2021 WL 4272050, at *4. This issue has not been addressed by courts in the Second Circuit.
The Court must dismiss Plaintiff's Title VII claims against Defendant Cortes-Vazquez, as she is not subject to liability under Title VII.
Plaintiff's allegations could also be construed as asserting claims under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). Although Title VII 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 NYSHRL, and this principle also applies to claims under the NYCHRL. Tomka, 66 F.3d at 1317; Feingold v. New York, 366 F.3d 138, 158-59 (2d Cir. 2004). Employer entities are also subject to liability under those laws. Even if the Court were to construe Plaintiff's claims against Defendant Cortes-Vazquez as arising under NYSHRL or NYCHRL, he would still need to articulate facts establishing a valid retaliation claim against this Defendant.
3. Exhaustion of administrative remedies
Before filing suit under Title VII, a plaintiff must first file a timely charge with the Equal Employment Opportunity Commission (“EEOC”) or appropriate state or local agency, and obtain a Notice of Right to Sue from the EEOC. See 42 U.S.C. § 2000e-5(e)(1). A plaintiff must commence a civil action within 90 days of receipt of notice of dismissal or termination of proceedings by the EEOC. See id. § 2000e-5(f)(1); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984).
The exhaustion of these administrative remedies is not, however, a jurisdictional requirement, but rather, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019) (“Title VII's charge-filing instruction is not jurisdictional....”); Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018) (“[T]he burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense.”).
Plaintiff does not indicate in the complaint whether he has done anything to exhaust his administrative remedies. If Plaintiff has exhausted his administrative remedies with the EEOC, he should complete the relevant section on the amended complaint form, which includes questions addressing administrative remedy exhaustion.
B. State law claims
A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). It is not clear that Plaintiff can state any claims of which the Court has original jurisdiction, and thus the Court will determine at a later stage whether to exercise its supplemental jurisdiction of any state law claims Plaintiff is asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).
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 a valid retaliation claim under Title VII, the Court grants him 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his Title VII retaliation claim. 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.
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 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-1301 (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. All other pending matters in this case are terminated.
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 IFP 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.
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