Spruill v. Voyant Beauty, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JOSEPH SPRUILL,

Plaintiff,

5:20-cv-1376

v.

(LEK/TWD)

KIK CUSTOM PRODUCTS and CAMRON FULLER,

Defendants.

_____________________________________________

APPEARANCES:

JOSEPH SPRUILL

4295 U.S. Route 11

Apartment C-3

Cortland, NY 13045

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent for review a complaint filed by pro se Plaintiff Joseph Spruill

pursuant to Title VII of the Civil Rights Act of 1962 (“Title VII”) as amended, 42 U.S.C.

§2000e, et seq, alleging employment discrimination. (Dkt. No. 1.) Plaintiff has not paid the

filing fee and seeks leave to proceed in forma pauperis (“IFP Application”). (Dkt. No. 2.)

I. IFP APPLICATION

A court may grant in forma pauperis status if a party “is unable to pay” the standard fee

for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP Application

(Dkt. No. 2), the Court finds he meets this standard. Therefore, Plaintiff’s IFP Application is

granted.

II. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, “the court

shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a

claim on which relief may be granted . . . .” 28 U.S.C. § 1915(e)(2)(B)(ii).

To survive dismissal for failure to state a claim, a complaint must plead enough facts to

state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil

Procedure, which sets forth the general rules of pleading, “does not require detailed factual

allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id.

In determining whether a complaint states a claim upon which relief may be granted, “the

court must accept the material facts alleged in the complaint as true and construe all reasonable

inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)

(citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in

a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

A pro se litigant’s pleadings are held to a less strict standard than attorney drafted pleadings. See

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation

context, pro se litigants are held to a lesser pleading standard than other parties.”). Because

plaintiff is proceeding pro se, the Court construes her pleadings “to raise the strongest arguments

that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)

(per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se

litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v.

Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

Moreover, a court should not dismiss a pro se complaint “without giving leave to amend

at least once when a liberal reading of the complaint gives any indication that a valid claim might

be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and

internal quotation marks omitted). However, an opportunity to amend is not required where “the

problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not

cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

B. Summary of Plaintiff’s Complaint

Plaintiff has filed a form Title VII complaint against his former employer, Kik Custom

Products, and Camron Fuller, Team Leader. (Dkt. No. 1 at ¶ 3.1) Plaintiff alleges termination of

employment, unequal terms and conditions of employment, and retaliation on account of his

“race or color.” Id. at ¶¶ 4, 6. Plaintiff also checked a box alleging “other” discrimination and

specified “age.” Id. The facts are alleged as follows.

On November 4, 2019, Plaintiff “took Camron Fuller to H.R.” Id. at ¶ 8. He spoke to

“Janet” and told her that Camron Fuller was “using his authority to intimidate and disrespect me

by calling me a Nigger.” Id. Plaintiff claims H.R. “never did an investigation and never got

back to [him]. There was no action taken by H.R.” Id. at ¶ 9.

1 Page references to documents identified by docket number are to the page numbers

assigned by the CM/ECF docketing system maintained by the Clerk’s Office. Paragraph

numbers are used where documents identified by the CM/ECF docket number contain

consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced

exactly as they appear in the original and errors in spelling, punctuation, and grammar have not

been corrected.

On February 25, 2020, Camron Fuller “turned [Plaintiff’s] pump up causing it to burst

[his] hose.” Id. at ¶ 8. Plaintiff reported the incident to supervisor David Forehand. Id. at ¶ 9.

Although the supervisor “agreed” that Camron Fuller “had no right to touch [Plaintiff’s] pump,”

Camron Fuller was “never written up for it and there was no disciplinary action taken.” Id.

On March 2, 2020, Plaintiff “was told that [he] had a meeting with H.R.” Id. Camron

Fuller had “told H.R. [Plaintiff] threatened and choked him.” Id. at ¶ 8. Two co-workers were

called as witnesses for Camron Fuller. Id. at ¶¶ 8, 9. “They both told H.R. they didn’t hear or see

anyone threatening or touching Camron.” Id. at ¶ 9. Two days later, on March 4, 2020, Plaintiff

was “fired because of Camron.” Id.

On May 14, 2020, Plaintiff filed charges and on August 31, 2020, the U.S. Equal

Employment Opportunity Commission issued a Notice-of-Right-to Sue letter. Id. at ¶¶ 10, 11.2

Plaintiff seeks compensatory damages and seeks to hold Defendants “fully accountable

for their actions in discrimination and retaliation.” Id. at ¶ 15.

C. Analysis

1. Claims Against Defendant Kik Custom Products

Title VII provides that it is unlawful 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)(1). To state a claim under Title

VII, Plaintiff must establish (1) that he is a member of the protected class, (2) that he was

qualified for the position, (3) that he was subject to an adverse employment decision, and (4) that

2 Plaintiff submitted a copy of the Notice-of-Right-to-Sue letter on November 16, 2020.

(Dkt. No. 4.) The Clerk is directed to attach Dkt. No. 4 to the complaint.

the adverse employment decision was made under circumstances giving rise to an inference of

unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Byrnie

v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015). The allegations need only give the defendant

“fair notice of what petitioner’s claims are and the grounds upon which they rest.” Swierkiewicz

v. Sorema N. A., 534 U.S. 506, 514 (2002). Thus, a plaintiff has a “minimal burden of showing

facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of New York, 795

F.3d 297, 311 (2d Cir. 2015).

In addition, “[t]o state a claim for retaliation in violation of Title VII, a plaintiff must

plead facts that would tend to show that: (1) []he participated in a protected activity known to the

defendant; (2) the defendant took an employment action disadvantaging h[im]; and (3) there

exists a causal connection between the protected activity and the adverse action.” Patane v.

Clark, 508 F.3d 106, 115 (2d Cir. 2007) (citation omitted).

Here, although Plaintiff does not specify his “race or color,” he states Camron Fuller

called him a racial slur. (Dkt. No. 1 at ¶ 8.) Additionally, the Notice-of-Right-to-Sue letter

indicates: “You allege that you were denied union representation, subjected to a difference in

terms/conditions, discharged and retaliated against because of your race, African American, and

color.” (Dkt. No. 4 at 1.) Plaintiff also complains he was terminated after filing an in-house

complaint with “H.R.” concerning purported disparate treatment based on his race and color.

(Dkt. No. 1 at ¶ 8.)

Mindful of the Second Circuit’s direction that a pro se plaintiff’s pleadings must be

liberally construed, see Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008),

the Court recommends that Plaintiff’s Title VII claims survive initial review and require a

response. In so recommending, the Court expresses no opinion as to whether Plaintiff’s claims

can withstand a properly filed motion to dismiss or for summary judgment.

The Court reaches a different result, however, as to any claims purportedly brought under

the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634.

Although Plaintiff checked a box on the form Title VII complaint claiming discrimination on

account of his “age,” Plaintiff provides no facts or argument to support this allegation. (Dkt. No.

1 at ¶ 4.) In order to state a prima facie claim for age discrimination in violation of the ADEA, a

plaintiff must establish a prima facie case by showing membership in a protected class—“at least

40 years of age,” 29 U.S.C. § 631(a), qualified for the position, suffered an adverse employment

action, and that there exist circumstances supporting an inference of discrimination. See Stratton

v. Department for the Aging for the City of N.Y., 132 F.3d 869, 879 (2d Cir. 1997).

Here, Plaintiff has not alleged he was within the age parameter of the ADEA and the

body of the complaint makes no mention of age discrimination. Accordingly, the Court

recommends that Plaintiff’s ADEA claim be dismissed with leave to replead pursuant to 28

U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.3

2. Claims against Defendant Camron Fuller

To the extent Plaintiff purports to assert Title VII claims against Camron Fuller, Team

Leader, such claims must be dismissed because “individuals are not subject to liability under

Title VII.” Patterson v. Cty. of Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004) (quotation

3 Should the District Judge permit Plaintiff the opportunity to file an amended complaint,

and if he then chooses to file an amended complaint, any amended complaint he may file will

supercede and replace entirely the original complaint he filed in this action. Therefore, the

amended complaint must include all the facts and claims he wishes the Court to consider,

including any claims that from the original complaint that were permitted to proceed, as well as

any relevant exhibits the undersigned wishes the Court to consider.

marks and citation omitted); see Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003)

(“the 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.”). Similarly, “it is well established that there is no individual liability under the

ADEA.” Edwards v. Onondaga Comm. Coll., No. 5:14-CV-1329 (MAD/DEP), 2015 WL

224782, at *8 (N.D.N.Y. Jan. 15, 2015) (citing Guerra v. Jones, 421 Fed. Appx. 15, 17 (2d Cir.

2011)).

Therefore, the Court recommends dismissing Plaintiff’s Title VII and ADEA claims

against Camron Fuller with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a

claim.

ACCORDINGLY, it is hereby

ORDERED that Plaintiff’s IFP Application (Dkt. No. 2) is GRANTED; and it is further

RECOMMENDED that Plaintiff’s Title VII claims against Defendant Kik Custom

Products survive initial review and require a response; and it is further

RECOMMENDED that Plaintiff’s ADEA claims against Defendant Kik Custom

Products be DISMISSED WITH LEAVE TO REPLEAD pursuant to 28 U.S.C. §

1915(e)(2)(B); and it is further

RECOMMENDED that Plaintiff’s Title VII and ADEA claims against Defendant

Camron Fuller be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) for

failure to state a claim; and it is further

RECOMMENDED that the Clerk be directed to terminate Defendant Camron Fuller

from the docket; and it is further

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-

Recommendation, along with a copy of the unpublished decision cited herein in accordance with

the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL

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

Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: November 25, 2020

Syracuse, New York

a Wiley Dancks :

United States Magistrate Judge

* If you are proceeding pro se and are served with this Order and Report-

Recommendation by mail, three additional days will be added to the fourteen-day period,

meaning that you have seventeen days from the date the Order and Report-Recommendation 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. Fed. R. Civ. 6(a)(1)(C).

dated December 17, 2014, Magistrate Judge

2015 WL 224782

David E. Peebles granted Plaintiff's application

Only the Westlaw citation

to proceed in forma pauperis (“IFP”)

is currently available.

and reviewed the sufficiency of Plaintiff's

United States District Court,

complaint. See Dkt. No. 4. Magistrate Judge

N.D. New York.

Peebles first found that Plaintiff had not alleged

Cindy A. EDWARDS, Plaintiff, facts plausibly suggesting that she had been

v. terminated, but that Plaintiff plausibly stated

ONONDAGA COMMUNITY COLLEGE, a claim for relief under the ADEA based

Wendy Hammond, Karen Hale, on the reduction of her hours. See id. at 9–

and Eunice Williams, Defendants. 11. Magistrate Judge Peebles then found that

Plaintiff did not allege any existing position

No. 5:14–CV–1329 (MAD/DEP). at Defendant Onondaga Community College

| (“OCC”) that she was not promoted to under

Signed Jan. 15, 2015. circumstances giving rise to an inference of

discrimination, and thus failed to state a cause

Attorneys and Law Firms

of action based on Defendants' failure to

promote her. See id. at 11. Further, Magistrate

Cindy A. Edwards, Skaneateles, NY, pro se.

Judge Peebles found that Plaintiff's allegations

were sufficient to state a cause of action for

retaliation under the ADEA. See id. at 11–

ORDER 12. With respect to Plaintiff's hostile work

environment claims, Magistrate Judge Peebles

MAE A. D'AGOSTINO, District Judge.

found that Plaintiff failed to allege facts that

*1 On October 31, 2014, Plaintiff commenced plausibly suggested that Defendant Hammond,

this action pro se pursuant to the Age Plaintiff's supervisor, demonstrate hostility

Discrimination in Employment Act (“ADEA”), towards Plaintiff because of Plaintiff's age. See

29 U.S.C. §§ 621 et seq. See Dkt. No. 1. id. at 12–13. Accordingly, Magistrate Judge

Plaintiff alleges that Defendants violated the Peebles recommended that Plaintiff's ADEA

ADEA by terminating Plaintiff's employment, claims based on the failure to promote her and

failing to promote Plaintiff, and creating a on a hostile work environment be dismissed.

hostile work environment because of Plaintiff's Id. at 11, 13. Finally, Magistrate Judge

age and by retaliating against Plaintiff for Peebles noted that “[i]t is well established

opposing a practice made unlawful under the that there is no individual liability under the

ADEA. See id. at 23. Plaintiff was fifty- ADEA,” and thus recommended that Plaintiff's

four years old at the time of the alleged claims against Defendants Hammond, Hale,

discriminatory acts. Id. at 3. and Williams be dismissed with prejudice.

Id. at 13. Magistrate Judge Peebles then

recommended that Plaintiff be given the

20195 WL 224/62

opportunity to amend the complaint with (citations and footnote omitted). After the

respect to her failure to promote and hostile appropriate review, “the court may accept,

work environment claims against Defendant reject, or modify, in whole or in part, the

OCC, but not with respect to her claims against findings or recommendations made by the

Defendants Hammond, Hale, and Williams magistrate judge.” USC. § 636(b) (1).

because permitting amendment on those claims

would be futile. Id. at 15. Plaintiff has not a litigant's failure to file objections to a

objected to Magistrate Judge Peebles’ Report, magistrate judge's report and recommendation,

Recommendation, and Order. even when that litigant is proceeding pro se,

waives any challenge to the report on appeal.

When a plaintiff seeks to proceed IFP, “the see !"OCephas v. Nash. 328 F3d 98. 107

court shall dismiss the case at any time if the (2d Cir 2003) (hol ding that “tals a rule a

urt determines that 7 the action or appeal party's failure to object to any purported error or

(1) is frivolous or malicious; (11) fails to state a omission in a magistrate judge's report waives

on wie’ ee may °° ae further judicial review of the point” (citation

sve monetary Tene “eas a ~ encane wine omitted)). A pro se litigant must be given notice

is immune from such relief.” 28 USC. S$ of this rule; notice is sufficient if it informs

1915(e)(2)(B). In making this determination, the litigant that the failure to timely object

“the court has the duty to show liberality will result in the waiver of further judicial

towards pro se litigants,” however, “there isa review and cites pertinent statutory and civil

responsibility on the court to determine thata —ryles authority. See Frank y. Johnson, 968 F.2d

claim has some arguable basis in law before 298, 299 (2d Cir.1992); Small v Sec'y of

Mena: a ee proceed wn nae Health & Human Servs., 892 F.2d 15, 16 (2d

3s 5 oa3. 34 NDNY1 ood. ot Cir.1989) (holding that a pro se party's failure to

“tt i). (N.D.N.Y. ) (interna object to a report and recommendation does not

citations omitted). waive his right to appellate review unless the

. , report explicitly states that failure to object will

*

2 When ap arty files specific obj ections toa preclude appellate review and specifically cites

magistrate judge's report-recommendation, the

district court makes a “de novo determination 28 U.S.C. § 636(b)(1) and Rules 72, 6(a),

of those portions of the report or specified and former 6(e) of the Federal Rules of Civil

proposed findings or recommendations to Procedure).

. . . . 3 Ju

meee ection imac. . a In the present matter, Magistrate Judge Peebles

(1). However, wl a pany mes [g]enera provided Plaintiff with adequate notice that

or conclusory objections, or objections which she was required to file any objections

merely recite the same arguments [that he

□ to the Report, Recommendation, and Order,

presented] to the magistrate judge,” the court and specifically informed her that failure

reviews those recommendations for clear error.

O'Diah v. Mawhir No. 9:08-CV_322. 2011 to object to any portion of the report

Ye MAQNITE, INO8 FAIS N Es would preclude her right to appellate review.

WL 933846, *1 (N.D.N.Y. Mar. 16, 2011)

20195 WL 224/62

See Dkt. No. 4 at 18 (“FAILURE TO

SO OBJECT TO THIS REPORT WILL ORDERS that Plaintiffs claims based upon

PRECLUDE APPELLATE REVIEW. iu 28 Defendant OCC's failure to promote Plaintiff

U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), and creation of a hostile work environment are

72: "Roldan v. Racette, 984 F.2d 85 (2d DISMISSED with leave to replead; and the

Cir.1993)”), Court further

Having reviewed Magistrate Judge Peebles' ORDERS | that Plaintiff's claims _ against

Report, Recommendation, and Order, Defendants Hammond, Hale, and Williams are

Plaintiff's submissions, and the applicable DISMISSED with prejudice; and the Court

law, the Court finds that Magistrate Judge further

Peebles correctly recommended that the Court ,

should dismiss Plaintiffs complaint against ORDERS that Plaintiff's complaint (Dkt. No.

Defendants Hammond, Hale, and Williams is otherwise accepted for filing; | and the

with prejudice. The Court further finds that Court further

Magistrate Judge Peebles correctly determined

that Plaintiff's complaint fails to state a claim © ORDERS that the Clerk of the Court shall issue

under the ADEA based on Defendant OCC's Summonses and forward them with copies of

alleged failure to promote Plaintiff and its the complaint to the United States Marshal,

creation of a hostile work environment, for along with packets containing General Order

the reasons outlined in Magistrate Judge 25, Which sets forth this district's Civil Case

Peebles' Report, Recommendation, and Order. Management Plan, for service upon the named

Ordinarily, a court should not dismiss a Defendant; and the Court further

complaint filed by a pro se litigant without

granting leave to amend at least once “when ORDERS that the Clerk of the Court is directed

a liberal reading of the complaint gives any © schedule a Rule 16 conference; and the Court

indication that a valid claim might be stated.” _ further

"Branum vy. Clark, 927 F.2d 698, 705 (2d

Cir.1991). Accordingly, the Court also adopts ORDERS that subsequent to SeIVICE of process

Magistrate Judge Peebles’ recommendation on Defendant, Defendant or its counsel shall

that Plaintiff be permitted an opportunity to file a formal TESPORSe to Plaintif’s complaint

amend her complaint as to her claims against as provided for in the Federal Rules of Civil

Defendant OCC. Procedure; and the Court further

*3 In light of the foregoing, the Court hereby ORDERS that all pleadings, motions and other

documents relating to this action be filed

ORDERS that Magistrate Judge Peebles with the Clerk of the United States District

Report, Recommendation, and Order (Dkt. No. Court, Northern District of New York, 7th

4) is ADOPTED in its entirety; and the Court Floor, Federal Building, 100 S. Clinton St.,

further Syracuse, New York 13261-7367. Any paper

must be accompanied by a certificate showing (“ADEA”), as amended, 29 U.S.C. § 621 et

that a true and correct copy of same was seq. Plaintiff's complaint and accompanying

mailed to all opposing parties or their counsel. application for leave to proceed in forma

Any document received by the Clerk or the pauperis (“IFP”) have been forwarded to me

Court which does not include a certificate for consideration. Based upon my review,

of service showing that a copy was served plaintiff's IFP application is granted, and I

upon all opposing parties or their attorneys recommend that she be permitted to proceed

will be returned without processing. Plaintiff against defendant OCC in connection with her

must comply with any requests by the Clerk's ADEA claim based on allegations that her

Office for any documents that are necessary to hours were reduced and she was retaliated

maintain this action. All parties must comply against. I further recommend, however, that the

with Local Rule 7.1 in filing motions, which remaining claims, including the ADEA claims

must be returnable before the assigned district against the individual defendants, be dismissed.

judge with proper allowance for notice as

required by the Local Rules. Plaintiff is also

required to promptly notify the Clerk's Office I. BACKGROUND

and all parties or their counsel of any change *4 Plaintiff commenced this action on October

in Plaintiff's address; her failure to do so will 31, 2014, by the filing of a complaint and

result in the dismissal of this action. The Court accompanying IFP application. Dkt. Nos. 1,

further 2. Generally, plaintiff alleges that she has

worked as an academic tutor for the Content

ORDERS that the Clerk of the Court shall Tutoring Center (“CTC”) at OCC since 2003.

serve a copy of this Order on Plaintiff in Dkt. No. 1 at 5. She also performed clerical

accordance with the Local Rules. work for the CTC “to increase [her] hours”

and worked at the CTC reception desk in the

evenings. Id. Plaintiff alleges she tutored and

IT IS SO ORDERED. did clerical work from noon until four o'clock

in the afternoon, and then worked at the CTC

desk from four o'clock until eight o'clock in

REPORT, RECOMMENDATION,

the evening. Id. at 6. Beginning in the fall of

AND ORDER

2012, however, with respect to the clerical work

and the CTC desk job, she was replaced by

DAVID E. PEEBLES, United States Magistrate

younger individuals and told that the changes

Judge.

were due to budget cuts. Id. at 7, 8. At or around

Pro se plaintiff Cindy A. Edwards has the same time period, plaintiff's supervisor

commenced this action against her former became hostile towards her. Id. When plaintiff

employer, Onondaga Community College confronted her supervisor, she was told that

(“OCC”), and three OCC employees alleging she was a good employee and well regarded.

discrimination on the basis of age in violation Id. at 7. Plaintiff, however, filed a grievance

20195 WL 224/62

OCC human resources policy. /d. at 8. As a requirements for IFP status, her application for

result of the grievance, plaintiff learned that — |gave to proceed IFP is granted. *

“there was no change to the budget.” /d. at

9. In addition, as a result of the grievance,

plaintiff and her supervisor were advised not to B. Sufficiency of Plaintiff's Claims

communicate with each other directly, and the

supervisor advised human resources that she 1. Standard of Review

did not want to work with plaintiff because, Because I have found that plaintiff meets the

due to the grievance, “she was uncertain that financial criteria for commencing this case IFP,

she could remain civil toward [plaintiff].” Jd, 1 must next consider the sufficiency of the

Following the filing of the grievance, plaintiff claims set forth in her complaint in light of "28

was replaced as the tutor for architecture and [sc § 1915(e). Section 1915(e) directs

design. /d. at 10. that, when a plaintiff seeks to proceed IFP,

“the court shall dismiss the case at any time

Plaintiff's complaint asserts claims of age if the court determines that ... the action ... (1)

discrimination in violation of the ADEA jg frivolous or malicious; (ii) fails to state a

against OCC; Wendy Hammond, a Technical —¢Jaim on which relief may be granted; or (iii)

Specialist employed by OCC; Karen Hale, seeks monetary relief against a defendant who

a Content Tutoring Center Coordinator also is immune from such relief” U.S.C. §

employed by OCC; and Eunice Williams, an

OCC Human Resources representative. As 191S(eN2N(B)-

Pp

relief, Edwards seeks recovery of monetary *5 In deciding whether a complaint states a

damages, including compensatory, emotional lorable claim, a court must extend a certain

distress, and punitive damages, as well as costs cows ° ws

measure of deference to pro se litigants, Nance

and attorney's fees. v. Kelly, 912 F.2d 605, 606 (2d Cir.1990)

(per curiam), and extreme caution should be

IL. DISCUSSION exercised in ordering sua sponte dismissal of

a pro se complaint before the adverse party

A. Application for Leave to Proceed In has been served and the parties have had

Forma Pauperis an opportunity to address the sufficiency of

When a civil action is commenced in a federal _ plaintiff's allegations, "" Anderson v. Coughlin,

district court, the statutory filing fee, currently 700 F.2d 37, 41 (2d Cir.1983). The court,

set at $400, must ordinarily be paid. 28 U.S.C. however, also has an overarching obligation

§ 1914(a). A court is authorized, however, to to determine that a claim is not legally

permit a litigant to proceed IFP if it determines frivolous before permitting a pro se plaintiff's

that she is unable to pay the required filing fee. complaint to proceed. See, e.g. Fitzgerald

"98 USC. § 1915(a)(1).! In this instance, v. First East Seventh St. Tenants Corp., 221

because I conclude that plaintiff meets the F.3d 362, 363 (2d Cir.2000) (holding that

a district court may sua sponte dismiss a

frivolous complaint, notwithstanding the fact

20195 WL 224/62

that the plaintiff paid the statutory filing fee). A court should not dismiss a complaint if the

“Legal frivolity ... occurs where ‘the claim plaintiff has stated “enough facts to state a

is based on an indisputably meritless legal claim to relief that is plausible on its face.”

theory [such as] when either the claim lacks an)" poyy Corp. v. Twombly, 550 U.S. 544, 570

arguable basis in law, or a dispositive defense (2007). “A claim has facial plausibility when

clearly exists on the face of the complaint.’ the plaintiff pleads factual content that allows

“ Aguilar v. United States, Nos. 99-MC—_ the court to draw the reasonable inference

0304, 99-MC—0408, 1999 WL 1067841, at *2. that the defendant is liable for the misconduct

(D.Conn. Nov. 8, 1999) (quoting Livingston alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678

v. Adirondack Beverage Co., 141 F.3d 434,437 (2009). Although the court should construe the

(2d Cir.1998)); see also Neitzke v. Williams, factual allegations in a light most favorable to

490 U.S. 319, 325 (1989) (“[D]ismissal is the plaintiff, “the tenet that a court must accept

proper only if the legal theory ... or factual 48 true all of the allegations contained in a

contentions lack an arguable basis.”): Pino complaint is inapplicable to legal conclusions.”

y. Ryan, 49 F.3d. 51, 53 (2d Cir.1995) (“[T]Jhe “Iqbal, 556 U.S. at 678. “Threadbare recitals

decision that a complaint is based on an of the elements of a cause of action, supported

indisputably meritless legal theory, for the by mere conclusory statements, do not suffice.”

purposes of dismissal under © section 1915 /@. (citing Twombly, 550 U.S. at 555). Thus,

[ (e) ], may be based upon a defense that appears “where the well-pleaded facts do not permit the

on the face of the complaint.”). court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it

When reviewing a complaint under ™ section has not ‘show[n]’—‘that the pleader is entitled

1915(e), the court looks to applicable ‘0 relief.’ “ “Id. at 679 (quoting Fed.R.Civ.P.

requirements of the Federal Rules of Civil 8(@)(2)).

Procedure for guidance. Specifically, Rule 8 of

the Federal Rules of Civil Procedure provides

that a pleading must contain “a short and plain Me sis of □ usa il h

statement of the claim showing that the pleader noaer comp aint, plaintiit alicges that

is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The ® defendants violated the ADEA by (1)

purpose of Rule 8 “is to give fair notice of the terminating her employment; (2) failing to

claim being asserted so as to permit the adverse promote her, (3) retaliating against her; and

party the opportunity to file a responsive (4) creating a hostile work environment. Dkt.

No. 1 at 2—3. Under the ADEA, “it shall

answer, prepare an adequate defense and

determine whether the doctrine of res judicata be unlawful for an employer to fail or

is applicable.” Powell v. Marine Midland Bank, refuse to hire or to discharge any individual or

162 ERD. 15, 16 (N.D.N.Y.1995) (McAvoy, otherwise discriminate against any individual

J.) (quotation marks and italics omitted). with respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual's age.” "29 U.S.C.

20195 WL 224/62

§ 623(a). The ADEA also prohibits an (footnote and quotation marks omitted);

employer from retaliating against an individual accord, M™ Johnson v, Long Island Univ, —

who has asserted rights under the ADEA. "29 F.Supp.3d ——, No. 13-—CV—2464, 2014 WL

U.S.C. § 623(d); Boland v. Town of Newington, 4926324, at *6 (S.D.N_Y. Sept. 30, 2014). With

304 F. App'x 7, 9 (2d Cir.2008). this in mind, I now proceed to analyzing the

allegations in plaintiff's complaint.

“The pleading standard for employment

discrimination complaints is somewhat of an

open question in [this] circuit.” ” Hedges Vv. a Reduction in Hours

Town of Madison, 456 F. Appx 22, 23 (2d Although plaintiff alleges that she was

Cir.2012). Prior to 2002, plaintiffs claiming terminated by defendant OCC based on her

age, there are no facts alleged that plausibly

employment discrimination were required to .

= suggest she has been technically terminated.

plead a prima facie case under □ McDonnell Instead, she contends that her hours were

Douglas v. Green, 411 U.S. 792 (1973). significantly reduced and offered to younger

Hedges, 456 F. App'x at 23. In 2002, individuals. Dkt. No. 1 at 7, 9. A reduction

however, the Supreme Court held that “an in hours can suffice to constitute an adverse

employment discrimination plaintiff need not employment action for purposes of the ADEA.

plead a prima facie case of discrimination.” _¢,, iG alabya v. N.Y. City Bd. of Educ., 202

Swierkiewicz v. Sorema N.A., 534 U.S. F.3d 636, 640 (2d Cir.2000) (finding that an

506, 515 (2002). Swierkiewicz, however, employee-plaintiff can establish adverse action

decided before | Bell Ail. Corp. vy. Twombly, nan ADEA case by, inter alia, demonstrating

550 U.S. 544 (2007), which, arguably, that her wage or salary decreased). Plaintiff

heightened the general pleading standard and has also alleged that, on multiple occasions,

now requires a complaint to contain sufficient she was praised for her job performance and

allegations that, if accepted as true, “state a assured she was well regarded by her fellow

claim to relief that is plausible on its face.” tutors and students, all of which plausibly

Twombly, 550 U.S. at 570. suggest that plaintiff was qualified for her

position. Dkt. No. 1 at 6, 7. Although plaintiff

Although the Second Circuit has not was told that the personnel changes, which

established a specific pleading standard for eliminated her clerical work and hours at the

employment discrimination claims since the CTC desk, were due to budgetary concerns,

issuance of Twombly, courts in this circuit she was later informed that no changes to

have concluded that “a complaint need not the budget prompted her replacement. Id. at

establish a prima facie case of employment 8, 9. In or about February 2013, plaintiff

discrimination ..., [but] the claim must be learned that she was removed from the CTC

facially plausible and must give fair notice desk job because of an allegation that she had

to the defendants of the basis for the claim.” improperly accessed confidential files. fd. at

9. Plaintiff denies this allegation and contends

Barbosa v. Continuum Health Partners,

that she accessed only files she was permitted

Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010)

20195 WL 224/62

or requested to access by her supervisor. /d. plausibly suggesting that “(1) [the plaintiff]

at 9-10. In the absence of any other reason participated in a protected activity known

for replacing her, and in light of the positive to the defendant; (2) the defendant took

job performance reviews, plaintiff alleges that an employment action disadvantaging [the

the decision to eliminate her clerical and CTC- plaintiff]; and (3) there exists a causal

desk-job responsibilities was based on her age. connection between the protected activity

Id. at 10. and the adverse action.” | Patane v. Clark,

508 F.3d 106, 115 (2d Cir.2007); see also

“7 Mindful of my obligation to liberally ys Gorzynski v. JetBlue Airways Corp., 596

construe a pro se litigant's complaint, I find that F.3d 93, 110 (2d Cir.2010).

the above-described allegations are sufficient

to survive initial review pursuant to section Liberally construed, plaintiff's complaint

1915(e) and recommend plaintiff be permitted alleges that, after she filed a grievance

to pursue her ADEA claim based on allegations regarding her clerical and CTC desk

that her hours were reduced. responsibilities being turned over to younger

individuals, another individual was hired to

replace her as a tutor of architecture and

b. Failure fo Promote design. Dkt. No | at 8, 10. Given the temporal

The failure to promote an employee may also .

serve as adverse action in the context of an Proximity between plaintifl's filing of her

grievance and that alleged adverse action, at

ADEA claim. Wanamaker v. Columbian Rope

this early procedural juncture, I recommend

Co., 907 F-Supp. 522, 535 (N.D.N.Y.1995) that plaintiff be permitted to pursue her ADEA

(citing Penny v. Winthrop—Univ. Hosp., 883 □ +etaliation cause of action.

F.Supp. 839 (E.D.N.Y.1995)). A careful review

of plaintiff's complaint, however, fails to reveal

any position at OCC into which she was not d. Hostile Work Environment

promoted under circumstances giving rise to The ADEA protects an employee from the

an inference of discrimination. Accordingly, I existence of a hostile work environment

recommend dismissal of any alleged failure to _ based upon age. “An actionable discrimination

promote ADEA cause of action. claim based on hostile work environment

under the ADEA is one for which the

workplace is permeated with discriminatory

c. Retaliation intimidation, ridicule, and insult that is

As was noted above, the ADEA prohibits sufficiently pervasive to alter the conditions

an employer from discriminating against an of the victim's employment.” "Kassner v

individual because she has opposed a practice 2nd Ave. Delicatessen Inc., 496 F.3d 229,

made unlawful under the Act. |" 29 U.S.C. 240 (2d Cir2007) (quotation marks omitted).

§ 623(d); Boland, 304 F. App'x at 9. To plaintiff's complaint in this action, however,

state a retaliation claim under the ADEA, only conclusorily alleges that she was subjected

a complaint must plead sufficient allegations to increased hostility by her supervisor,

20195 WL 224/62

who is alleged to have shouted angrily at ( “The court should freely give leave when

her “on several occasions,” but fails to justice so requires.”); Mathon vy. Marine

allege any facts plausibly suggesting that her = ayjdignd Bank, N.A., 875 F.Supp. 986, 1003

supervisor's hostility toward her was based (E.D .N.Y.1995) (permitting leave to replead

on, or otherwise motivated by, her age. See where court could “not determine that the

Kassner, 496 F.3d at 241 (“A plaintiff must plaintiffs would not, under any circumstances,

also demonstrate that she subjected to the be able to allege a civil RICO conspiracy”). An

hostility because of her membership in a opportunity to amend is not required, however,

protected class.”). While plaintiff alleges that where “the problem with [the plaintiff's]

she was replaced by younger individuals, she causes of action is substantive” such that

does not allege any facts that suggest her “better pleading will not cure it.” |” Cuoco v.

supervisor's hostile conduct was precipitated Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see

by P laintitf's ace. Accordingly, l recommend also '* Cortec Indus. Inc. v. Sum Holding L.P,,

dismissal of plaintiff's ADEA claim to the 949 F.2d 42, 48 (2d Cir.1991) (“OF course,

extent that it is deemed to include a hostile work tee:

where a plaintiff is unable to allege any fact

environment cause of action. . . . .

sufficient to support its claim, a complaint

should be dismissed with prejudice.”). Stated

e. Individual Liability differently, “[w]here it appears that granting

In addition to OCC, plaintiff has named leave to amend 1s unlikely to be productive, ...

three individuals as defendants. The ADEA _ 18 not an abuse of discretion to deny leave to

defines employer as “a person engaged in an amend.” | Ruffolo v. Oppenheimer & Co., 987

industry affecting commerce who has twenty — F.2d 129, 131 (2d Cir.1993); accord, Brown vy.

or more employeesf.]” !" 29 U.S.C. § 630(b). Peters, No. 95-CV—1641, 1997 WL 599355, at

It is well established that there is no individual”! (N-D.N.Y. Sept. 22, 1997) (Pooler, J.).

liability under the ADEA. Guerra v. Jones, 421

F. App'x 15, 17 (2d Cir.2011). Accordingly, In this instance, because it is clear that, even

I recommend that plaintiffs claims against given the opportunity to amend, plaintiff could

defendants Wendy Hammond, Karen Hale, and not cure the defects cited above with respect

Eunice Williams be dismissed. to the ADEA claim asserted against the three

individual defendants, I recommend against

granting her leave to amend those claims.

C. Whether to Permit Amendment I further recommend, however, that plaintiff

Ordinarily, a court should not dismiss a be afforded the opportunity to amend her

complaint filed by a pro se litigant without complaint with respect to the ADEA claims

granting leave to amend at least once “when asserted against OCC based on an alleged

a liberal reading of the complaint gives any _ failure to promote and the existence of a hostile

indication that a valid claim might be stated.” | work environment.

Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir.1991); see also Fed.R.Civ.P. 15(a) IIL SUMMARY AND RECOMMENDATION

qualifies for that status. Accordingly, her IFP otherwise be accepted for filing; and it further

application is granted. Turning to the merits hereby

of her complaint, I conclude that plaintiff has

alleged sufficient facts to survive initial review RECOMMENDED that, if the assigned district

with respect to her ADEA claims based on a judge adopts this report, a further order be

reduction of her hours and retaliation. Plaintiff's issued as follows:

ADEA claims based on allegations of failure

to promote and hostile work environment, (1) The clerk of the court shall issue

however, should be dismissed with leave to summonses and forward them with copies

amend. In addition, plaintiff's ADEA claims of the amended complaint to United States

against the individual defendants is subject to Marshal, along with packets containing

dismissal with prejudice. General Order 25, which sets forth this district's

Civil Case Management Plan, for service upon

*9 Based upon the foregoing, it is hereby the named defendants.

ORDERED that plaintiff's motion for leave to (2) The clerk is directed to schedule a Rule 16

proceed in forma pauperis, (Dkt. No. 2), is conference.

GRANTED; and it is further

(3) Subsequent to service of process on

ORDERED that the clerk of the court serve a defendants, defendants or their counsel shall

copy of this report and recommendation upon file a formal response to plaintiff's amended

the parties in accordance with this court's local complaint as provided for in the Federal Rules

rules; and it is hereby respectfully of Civil Procedure.

RECOMMENDED that plaintiff's ADEA (4) All pleadings, motions and other documents

claims based upon the allegations that she relating to this action be filed with the

was discriminated against based on a failure Clerk of the United States District Court,

to promote and hostile work environment be Northern District of New York, 7th Floor,

DISMISSED, Federal Building, 100 S. Clinton St., Syracuse,

New York 13261–7367. Any paper sent by

with leave to replead; and it is further hereby a party to the court or the clerk must be

accompanied by a certificate showing that a

RECOMMENDED that plaintiff's ADEA true and correct copy of same was mailed

claims asserted against the individual to all opposing parties or their counsel.

defendants be DISMISSED with prejudice; and Any document received by the clerk or the

it is hereby court which does not include a certificate

of service showing that a copy was served

upon all opposing parties or their attorneys

will be returned, without processing. Plaintiff

20195 WL 224/62

must comply with any requests by the clerk's report. Such objections must be filed with

Office for any documents that are necessary to the clerk of the court within FOURTEEN

maintain this action. All parties must comply 44S of service of this report. FAILURE

with Local Rule 7.1 of the Northern District 7O SO OBJECT TO THIS REPORT WILL

of New York in filing motions, which must PRECLUDE APPELLATE REVIEW. "28

be returnable before the assigned district judge U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72;

with proper allowance for notice as required by |" Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

the Rules. Plaintiffis also required to promptly

notify the clerk's office and all parties or their

counsel of any change in plaintiff's address; | *10 Dated: December 17, 2014.

his failure to do so will result in the dismissal

of this action. All Citations

Not Reported in F.Supp.3d, 2015 WL 224782

Pursuantto 28 U.S.C. § 63 6(b)(1), the parties

may lodge written objections to the foregoing

Footnotes

1 Plaintiff's remaining claims are her ADEA claims against Defendant OCC based on

the reduction of Plaintiff's hours and on retaliation.

1 The language of that section is ambiguous, in that it suggests an intent to

limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1)

(authorizing the commencement of an action without prepayment of fees “by a

person who submits an affidavit that includes a statement of all assets such prisoner

possesses”). Courts have construed that section, however, as making IFP status

available to any litigant who can meet the governing financial criteria. Hayes v.

United States, 71 Fed. Cl. 366, 367 (Fed.Cl.2006); see also Fridman v. City of N_Y.,

195 F.Supp.2d 534, 536 n.1 (S.D.N.Y.2002).

2 Plaintiff is reminded that, although her IFP application has been granted, she will

still be required to pay fees that she incurs in this action, including copying and/or

witness fees.

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.