# Spruill v. Voyant Beauty, LLC

> District Court, N.D. New York · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10313446

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 30, 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
_____________________________________________

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313446. Public record. Not legal advice.