# Johnson v. Frida's Bakery Inc.

> District Court, N.D. New York · April 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10312749

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312749. Public record. Not legal advice.