Johnson v. Frida's Bakery Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROBERT E. JOHNSON,

Plaintiff,

V.

No. 5:19-CV-1613

FRIDA’S BAKERY INC., et al., (DNH/CFH)

Defendants.

APPEARANCES:

Robert E. Johnson

19A0763

Cape Vincent Correctional Facility

Rte. 12E

PO Box 739

Cape Vincent, New York 13618

Plaintiff pro se

REPORT-RECOMMENDATION & ORDER

I. In Forma Pauperis

Plaintiff pro se Robert E. Johnson, an inmate currently incarcerated at

Cape Vincent Correctional Facility in Cape Vincent, New York, commenced this

ry

action on January 2, 2020, with the filing of a complaint. See Dkt. No. 1

(“Compl.”). Plaintiff also filed an application to proceed in forma pauperis (“IFP”).

See Dkt. No. 2. On January 8, 2020, the Court administratively closed the case,

and provided plaintiff the opportunity to comply with the filing fee requirement.

see Dkt. No. 5. On January 23, 2020, plaintiff filed a second IFP application.

See Dkt. No. 6. The Court has reviewed plaintiff's second IFP application and

has determined that plaintiff financially qualifies to proceed IFP.'

ll. Initial Review

A. Legal Standard

Section 1915 of Title 28 of the United States Code directs that, when a

plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the

court determines that. . . the action or appeal (i) is frivolous or malicious; (ii) fails

to state a claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

| /nus, it is a court’s responsibility to determine that a plaintiff may properly

maintain his complaint before permitting him to proceed with his action.

Where, as here, the plaintiff proceeds pro se, “the court must construe his

submissions liberally and interpret them to raise the strongest arguments that

they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)

(per curiam) (internal quotation marks omitted). However, this does not mean

™ the Court is required to accept unsupported allegations that are devoid of

sufficient facts or claims. Although detailed allegations are not required at the

pleading stage, the complaint must still include enough facts to provide the

defendants with notice of the claims against them and the grounds upon which

Plaintiff is advised that, despite being granted IFP status, he is still required to pay in full any costs or

fees that she may incur in this action, including, but not limited to, any copying fees or witness fees.

these claims are based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell

Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the plaintiff must

plead “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570.

Pleading guidelines are set forth in the Federal Rules of Civil Procedure

(“Fed. R. Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth

a Claim for relief shall contain, among other things, “a short and plain statement

of the claim showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2).

“The purpose . . . is to give fair notice of the claim being asserted so as to permit

the adverse party the opportunity to file a responsive answer, prepare an

adequate defense and determine whether the doctrine of res judicata is

applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal

quotation marks and citations omitted). Rule 8 also requires the pleading to

include:

(1) a short and plain statement of the grounds for the

court’s jurisdiction...

(2) a short and plain statement of the claim showing that

the pleader is entitled to relief; and

(3) a demand for the relief sought... .

FED. R. Clv. P. 8(a). Although “[nJo technical form is required,” the Federal Rules

make clear that each allegation contained in the pleading “must be simple,

concise, and direct.” Id. at 8(d).

Further, Rule 10 of the Federal Rules provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable toa

single set of circumstances. A later pleading may refer

by number to a paragraph in an earlier pleading. If

doing so would promote clarity, each claim founded on

a separate transaction or occurrence — and each

defense other than a denial — must be stated ina

separate count or defense.

FED. R. Clv. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]’ Flores,

189 F.R.D. at 54 (internal quotation marks and citations omitted). A complaint

that fails to comply with the pleading requirements “presents far too a heavy

burden in terms of defendants’ duty to shape a comprehensive defense and

| Provides no meaningful basis for the Court to assess the sufficiency of their

claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the

Second Circuit has held, “[W]hen a complaint does not comply with the

requirement that it be short and plain, the court has the power, on its own

initiative .. . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved

for those cases in which the complaint is so confused, ambiguous, vague, or

otherwise unintelligible that its true substance, if any, is well disguised.” Id.

(citations omitted). In such cases of dismissal, particularly when reviewing a pro

se complaint, the court generally affords the plaintiff leave to amend the

complaint. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). A court

should not dismiss a complaint if the plaintiff has stated “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim

has facial plausibility 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 (citation omitted).

B. Plaintiff's Complaint

Plaintiffs’ complaint is written on a form complaint for civil rights violations

pursuant to 42 U.S.C. § 1983, and names as defendants his former employer,

Frida’s Bakery (“Frida’s”); Frida’s President, Robert Pollack (“Pollack”); his forme

manager at Frida’s, Robert Dayan (“Dayan”); and his former supervisor at

| Pfida’s, Marcus Hernandez (“Hernandez”). See Compl. at 1-2. Under the

“Facts” section of the form complaint, plaintiff states that he was employed at

Frida’s between June 1, 2017, and August 24, 2017. See id. at 4. Plaintiff states

that, during his three-month period of employment at Frida’s, Hernandez called

him a “nigger, monkey[,] and other racial slurs” and “voiced his opinion of his

dislike for black people.” Id. Plaintiff alleges that he made “complaints . . . to

manager . .. Dayan through many text messages, phone calls[,] and face to

face.” Id. Plaintiff contends that Hernandez “continue [sic] to call [plaintiff] racial

slurs and threatened to kill [him] numerous times.” Id. Plaintiff further alleges

that, on August 23, 2017, Hernandez was “sent home” after he “attempted to

stab [plaintiff] with a knife.” Id. Finally, plaintiff alleges that, on August 24, 2017,

Hernandez returned to work and “tried to kill [him] with a knife.” Id.

In his “first cause of action,” plaintiff alleges that, “[d]uring the [three]

months [he] suffered mental anguish, emotional distress, [and] lost [sic] of

liberty.” Compl. at 5 (capitalization omitted). His “second cause of action”

alleges that “defendants [sic] actions placed plaintiffs [sic] life in jepoaday [sic].”

Id. (capitalization omitted). In his “third” and final cause of action, plaintiff alleges

that, “[b]ecause of [sic] defendants failed [sic] to take control of the hostile

environment, plaintiff endured workplace bullying, hostile work environment,

unlawful harassment[,] and unlawful misconduct.” Id. (capitalization omitted).

Plaintiff's prayer for relief requests $10 million and punitive damages. See id.

C. Analysis?

Affording the pro se complaint a liberal reading, as the Court must, plaintiff

appears to allege claims for race-based hostile work environment based on his

assertions that, over the course of his three-month employment at Frida’s,

Hernandez directed racial slurs at him and physically threatened and attacked

him. See Compl. at 4-5. Although plaintiff's form complaint asserts his causes of

action pursuant to 42 U.S.C. § 1983 only, given his pro se status and his

statement that he received a right-to-sue letter from the EEOC, see id. at 2, the

undersigned construes the complaint as asserting hostile work environment

2 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, hav

been provided to plaintiff.

claims pursuant to not only 42 U.S.C. § 1983, but also Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

i. 42 U.S.C. § 1983

A claim for relief under § 1983 must allege facts showing that the

defendant acted under color of a state “statute, ordinance, regulation, custom or

usage.” 42 U.S.C. § 1983. Private parties are not liable under § 1983 unless

they act under color of state law. See Hooda v. Brookhaven Nat. Lab., 659 F.

Supp. 2d 382, 392 (E.D.N.Y. 2009); see also Benjamin v. Brookhaven Sci.

Assocs., LLC, 387 F. Supp. 2d 146, 156 (E.D.N.Y. 2005) (“[T]he [plaintiff's]

| Section 1983 action is not cognizable against the [d]jefendant because there are

no allegations that it is a state or municipal entity acting under color of state law

as required by 42 U.S.C. § 1983.”). A plaintiff “bears the burden of proof on the

state action issue.” Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1083 n.3

(2d Cir. 1990).

Here, Frida’s, a bakery, is a private business and the individual defendants

™ are private parties, and plaintiff does not allege, nor is there any conceivable set

of facts under which plaintiff could allege, that any of the named defendants were

acting under color of state law. Cf. Crawley v. Nat'l Life Ins. Co. of Vt., 318 F.3d

105, 111 (2d Cir. 2003) (“For the conduct of a private entity to be fairly

attributable to the state, there must be such a close nexus between the State and

the challenged action that seemingly private behavior may be fairly treated as

that of the State itself.” (internal quotation marks and citation omitted)).

Accordingly, it is recommended that the complaint be dismissed with prejudice

and without opportunity to amend insofar as the complaint may be read as

asserting claims against Frida’s and/or the individual defendants pursuant to

Section 1983.

ii. Title VII

As an initial matter, although plaintiff's complaint may be liberally read as

attempting to assert a claim for race-based hostile work environment pursuant to

Title VII as against Frida’s only—it cannot be read as asserting such a claim

| against the individual defendants. See Patterson v. County of Oneida, New

York, (“[I]Jndividuals are not subject to liability under Title VII.”); see also Mandell

v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (“[T]he district court’s

dismissal of [the] plaintiff's Title VII claims against [the defendant] in his personal

Capacity must be affirmed because under Title VII individual supervisors are not

subject to liability.”). Consequently, it is recommended that the complaint be

™ dismissed with prejudice and without opportunity to amend insofar as it may be

read as asserting a Title VIl race-based hostile work environment claim against

the individual defendants.

Further, to state a claim for race-based hostile work environment under

Title VII, a plaintiff must show that a defendant’s conduct (1) was “objectively

severe or pervasive,” (2) created an environment that was “subjectively

perceive[d] as hostile or abusive,” and (3) “created such an environment because

of the plaintiff's [protected characteristic].” Alvarado v. Mount Pleasant Cottage

Sch. Dist., 404 F. Supp. 3d 763, 780 (S.D.N.Y. 2019) (quoting Patane v. Clark,

508 F.3d 106, 113 (2d Cir. 2007)). Here, even affording the complaint the most

generous reading possible, any potential Title VII hostile work environment claim

against Frida’s must be dismissed because plaintiff has failed to “demonstrate

that the [challenged] conduct occurred because of [his] protected characteristic.”

Hussey v. New York State Dep't of Law/Office of Atty. Gen., 933 F. Supp. 2d

399, 412 (E.D.N.Y. 2013) (internal quotation marks and citation omitted); see

Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (‘[i]t is axiomatic that that

| mistreatment at work . . . is actionable under Title VII only when it occurs

because of an employee’s . . . protected characteristic.” (internal quotation marks

and citation omitted)). Plaintiff's claims are all premised on Hernandez allegedly

directing racial slurs about African Americans toward him and threatening to

engage in, and actually engaging in, acts of physical violence against him. See

Compl. at 4. However, neither the complaint nor any other of plaintiff's

submissions allege that plaintiff is, himself, African American, or a member of an

racial minority group. See generally id. Thus, the complaint, which is devoid of

facts from which the Court can draw the plausible inference that the specific

occurrences complained of were the result of plaintiff's race, fails to sufficiently

allege a cause of action for hostile work environment pursuant to Title VII. See,

e.g., Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F. Supp. 2d 345, 349

(S.D.N.Y. 2009) (dismissing the plaintiff's claim of racial discrimination under Title

Vil where the “[clomplaint ma[de] no mention of [the plaintiff's] race.”).

As a final matter, the complaint does not make clear whether plaintiff has

satisfied the statutory prerequisites for filing a federal lawsuit pursuant to Title VII.

In order to commence an action in federal court pursuant to Title VII, a plaintiff

“must file a charge of discrimination with the EEOC ‘within one hundred eighty

(180) days ‘after the alleged unlawful employment practice occurred,’ or within

three hundred (300) days of the alleged discrimination if the claimant ‘has initially

instituted proceedings with a state local agency|,]’ and receive a ‘right-to-sue’

letter from the EEOC prior to commencing a suit in federal court.” McNight v.

| Dormitory Auth. of State of New York, 995 F. Supp. 70, 76 (N.D.N.Y. 1998)

(quoting 42 U.S.C. § 2000e-5(e)). A plaintiff must bring the federal court action

within ninety days of receiving a right-to-sue letter. See Cornwell v. Robinson, 23

F.3d 694, 706 (2d Cir. 1994) (“[A] suit must be commenced not more than 90

days after receipt of the right-to-sue letter’). “It is well settled that if a plaintiff

does not file suit within 90 days of receiving the EEOC’s right-to-sue letter, the

™ action must be dismissed, unless extraordinary circumstances have been

established.” Ernestine Banks v. Avis Budget Grp., 1:16-CV-1320 (MAD/DJS),

2018 WL 922147, at *2 (N.D.N.Y. Feb. 15, 2018) (citing Skibinski v. Zevnik,

Horton, Guibord, McGovern, Palmer & Fognani, LLP, 57 F. App’x 900 (2d Cir.

2003) (Summary order)). “The filing deadline for the formal complaint is not

jurisdictional and, like a statute of limitations, is subject to equitable tolling[,

10

which] is only appropriate in rare and exceptional circumstances.” Id. (quoting

Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)

(internal quotation marks and citations omitted)).

Here, plaintiff alleges only that he “made a complaint to the EEOC in 2017

and was given the ok to file lawsuit’—but has not attached a right-to-sue notice

to his complaint. Compl. at 2. Although plaintiff's allegations suggest that he

timely commenced his EEOC action following the allegedly discriminatory

conduct between June and August 2017, the complaint is silent as to the date on

which plaintiff purportedly received a right-to-sue notice or whether he timely filed

this action within 90 days of receiving such notice. See id. at 2, 4. In addition,

| Plaintiff neither advances any argument nor provides any factual assertions from

which the Court can plausibly infer that he is entitled to equitable modification of

the statutory filing requirements. See id. Nevertheless, given plaintiffs pro se

Status, it is recommended that his Title VII hostile work environment claim insofar

as asserted against Frida’s be dismissed without prejudice, and that plaintiff be

given the opportunity to amend. See Ramic v. AFSA Data, No. 6:15-CV-01288

(LEK/TWD), 2015 WL 7820594, at *3 (N.D.N.Y. Nov. 4, 2015) (recommending

dismissal of the plaintiff's Title VII claim without prejudice and with opportunity to

amend “in light of [the p]laintiff's pro se status” although the plaintiff did “not

allege that he received a right-to-sue letter from the EEOC, and a right-to-sue

letter [wa]s not attached to his [c]omplaint.”), report and recommendation

11

adopted, No. 6:15-CV-1288 (LEK/TWD), 2015 WL 7871163 (N.D.N.Y. Dec. 3,

2015).

3. State Law Claims

Liberally construed, the complaint appears to attempt to assert state law

claims for intentional infliction of emotional distress and/or assault and battery

against Hernandez for incidents that allegedly occurred between June and

August 2017. See Compl. at 4. These state law claims each have a one-year

statute of limitations. See C.P.L.R. 215(3) (“The following actions shall be

commenced within one year: an action to recover damages for assault, battery

m+); Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455

(S.D.N.Y. 1997) (“It is well established under New York law that a claim of

intentional infliction of emotional distress has a one-year statute of limitations.”

(internal quotation marks and citations omitted). Further, the Second Circuit has

expressly held that, “as a matter of federal law[,] filing an EEOC charge does not

toll the time for filing state tort claims, including those that arise out of the same

nucleus of facts alleged in the charge of discrimination filed with the EEOC.”

Castagna v. Luceno, 744 F.3d 254, 258 (2d Cir. 2014). Thus, because plaintiff's

state law claims accrued, at the latest, on August 24, 2017—his last day of

employment at Frida’s—the statute of limitations for plaintiff's state law tort

claims has expired. See C.P.L.R. 215(3); Forbes, 957 F. Supp. At 455.

12

Accordingly, it is recommended that plaintiff's state law claims be dismissed with

prejudice and without opportunity to amend.

lll. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff's second application to proceed in forma pauperis

(Dkt. No. 6) is GRANTED for purposes of filing only; and it is

RECOMMENDED, that the following of plaintiff's claims be DISMISSED

WITH PREJUDICE AND WITHOUT OPPORTUNITY TO AMEND: Title VII

claims insofar as asserted against the individual defendants, and Section 1983

| claims; and it is further

RECOMMENDED, that the complaint, insofar as asserted against

individual defendants Hernandez, Dayan, and Pollack be DISMISSED WITH

PREJUDICE AND WITHOUT OPPORTUNITY TO AMEND, and it is further

RECOMMENDED, that the following of plaintiff's claims be DISMISSED

WITHOUT PREJUDICE AND WITH OPPORUTNITY TO AMEND: Title VII claim

insofar as asserted against Frida’s, and it is further

RECOMMENDED, that plaintiff's state law claims be DISMISSED WITH

PREJUDICE AND WITHOUT OPPORTUNITY TO AMEND as time-barred, and i

is further

RECOMMENDED, that should the District Judge adopt this Report-

Recommendation and Order, plaintiff be given thirty (30) days from the date of

13

the Order adopting this Report-Recommendation and Order to file an amended

complaint, and if plaintiff does not file an amended complaint, (1) it will be

deemed as an abandonment of any claims for which leave to replead has been

granted and will result in judgment being entered against plaintiff on these claims

without further order by the Court, and (2) the matter be returned to the

Magistrate Judge for service of the original complaint for any claims that were

permitted to proceed in the original complaint, with all other claims deemed

stricken.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days

Within which to file written objections to the foregoing report. Such objections

shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS

REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE

REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.

sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28

U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).°

m Dated: April 17, 2020

Albany, New York a | ot /)

Christian F. Hummel

U.S. Magistrate Judge

3 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three

(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)

days from the date the Report-Recommendation & Order was mailed to you to serve and file objections.

FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal

holiday. Id. § 6(a)(1)(c).

14