# Avent v. Reardon

> District Court, N.D. New York · December 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10313553

## Case

- **Court:** District Court, N.D. New York
- **Decided:** December 28, 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

REUBEN AVENT,
Plaintiff,
V.
No. 1:19-CV-1565
ROBERTA REARDON, et al., (GTS/CFH)
° AMENDED
Defendants.

APPEARANCES: OF COUNSEL:
REUBEN AVENT
2363 Adam Clayton Powell Jr. Blvd.
Apt. 5j
New York, New York 10030
Plaintiff pro se
I
AMENDED MEMORANDUM, DECISION & ORDER
1. Background and Procedural History
On April 2, 2020, the undersigned issue a Report-Recommendation & Order
granting plaintiffs application to proceed in forma pauperis (“IFP”). See Dkt. No. 5.
Upon initial review of the Original Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
U.S.C. § 1915A(b), the undersigned recommended that the following of plaintiff's
claims be dismissed with prejudice: (1) claims for money damages against Reardon and
Loveland in their official capacities; and (2) Title VI| claims asserted against the
individual defendants in their individual capacities. See Dkt. No. 5 at 23. The
undersigned further recommended that the following claims be dismissed without
prejudice and with opportunity to amend: (1) Section 1983 conspiracy claim; and (2)

Section 1983 failure to train/supervise claim; (3) claims against Lentes; and (4) claims
against the Unknown Target HR employee. See id. The undersigned recommended
that plaintiff's remaining claims survived sua sponte review and be permitted to
proceed. See id. On April 27, 2020, plaintiff filed objections to the undersigned’s April
2, 2020 Report & Recommendation. See Dkt. No. 6. On July 20, 2020, Chief United
States District Court Judge Glenn T. Suddaby accepted and adopted the undersigned’s
April 2, 2020 Report & Recommendation in its entirety, and afforded plaintiff the
opportunity to file an Amended Complaint solely with regard to his Section 1983
conspiracy and failure to supervise claims. See Dkt. No. 7. Thereafter, the Court
granted plaintiff's letter motion for an extension of time to file an amended complaint
with respect to his Section 1983 conspiracy claim and Section 1983 failure to
| train/supervise claim. See Dkt. Nos. 8, 9. On August 31, 2020, plaintiff filed his
Amended Complaint. See Dkt. No. 10 (“Am. Compl.”).

ll. Legal Standard
Section 1915 of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed IFP, “the court shall dismiss the case at any time if the court
determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's
responsibility to determine that a plaintiff may properly maintain his complaint before
permitting him to proceed with his action.

Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks omitted). However, this does not mean the Court is required
to accept unsupported allegations that are devoid of sufficient facts or claims. Although
°| detailed allegations are not required at the pleading stage, the complaint must still
include enough facts to provide the defendants with notice of the claims against them
and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R.
Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief
shall contain, among other things, “a short and plain statement of the claim showing tha
the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair
notice of the claim being asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and determine whether the
| doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y.
1999) (internal quotation marks and citations omitted). Rule 8 also requires the
pleading to include:
(1) a short and plain statement of the grounds for the court’s
jurisdiction ...
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and

(3) a demand for the relief sought... .
Feb. R. Civ. P. 8(a). Although “[nJo technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d).
Further, Rule 10 of the Federal Rules provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence — and each defense other than a denial — must
be stated in a separate count or defense.
R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
m|F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of
defendants’ duty to shape a comprehensive defense and provides no meaningful basis
for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does
not comply with the requirement that it be short and plain, the court has the power, on
its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for
those cases in which the complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted). In
such cases of dismissal, particularly when reviewing a pro se complaint, the court
generally affords the plaintiff leave to amend the complaint. See Simmons v. Abruzzo,

49 F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).
a

lll. Plaintiff's Amended Complaint’
A. Section 1983 Conspiracy Claim
The elements of a claim for conspiracy under 42 U.S.C. § 1983 are: (1) an
agreement between two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done
furtherance of that goal causing damages. Pangburn v. Culbertson, 200 F.3d 65, 72
(2d Cir.1999) (citation omitted). “To state a claim against a private entity on a section
1983 conspiracy theory, the complaint must allege facts demonstrating that the private
entity acted in concert with the state actor to commit an unconstitutional act.” Spear v.
Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992). Put differently, a private actor
acts under color of state law when the private actor “is a willful participant in joint activity
With the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)
(quoting United States v. Price, 383 U.S. 787, 794 (1966)). “A merely conclusory
allegation that a private entity acted in concert with a state actor does not suffice to

1 Because of plaintiff's pro se status, the undersigned has considered the allegations in the complaint
along with the documents attached thereto. See, e.g., Anthony v. Murphy, No. 5:15-CV-00450
(DNH/TWD), 2015 WL 1957694, at *1n.1 (N.D.N.Y. Apr. 28, 2015) (“[I]n light of [the p]laintiff's pro se
status, the Court has considered the allegations in, and attachments to, both [the p]laintiff's original and
amended/supplemental complaints upon its initial review.”), report and recommendation adopted, No.
5:15-CV-450 (DNH/TWD), 2015 WL 3409261 (N.D.N.Y. May 27, 2015).

state a § 1983 claim against the private entity.” Ciambriello v. Cty. of Nassau, 292 F.3d
307, 324 (2d Cir. 2002) (citing Spear, 954 F.2d at 68).
In his Amended Complaint, plaintiff alleges that Reardon, Loveland, Target
employees Lentes, CEO Cornell, Jesse Fetcho, Ryan, and the Unknown HR employee,
conspired to “fire plaintiff [during] his granted leave of absence and transfer in retaliation
°| for making an [in-house] complaint about . . . discrimination and/or retaliate against
plaintiff for filing an EEOC discrimination complaint against Target in manufacturing
unjust cause for termination.” Am. Compl. at 30. Plaintiff alleges that the Target
defendants suppressed “records and information of his leave of absence and his
transfer request to aid the [NYS] DOL defendants in furtherance of misusing the state
authority of unemployment to file fraud charges against him of [sic] he didn’t falsely
admit to voluntary leaving his employment.” Id.
Plaintiff reasserts his contentions from his Original Complaint that, “[i]n or about
early June 2019,” he filed an in-house complaint with Target concerning his racial
discrimination and hostile work environment allegations. See Am. Compl. at 6 J 12;
Dkt. No. 10-1 at 14. Plaintiff alleges that, “on June 18[,] 2019[,] or so,” he went to
human resources to request a transfer from Target’s Amsterdam, New York, distribution
| center to a distribution center closer to New York City, where he planned to move on
July 5, 2019. See Am. Compl. at 7 715. Plaintiff states that, “[a]t that time [the
U]nknown [HR] employee did put in the paperwork to have him transferred and called
the Distribution Office which stated that they would accept [plaintiff] only on an
agreement that plaintiff would be able to work the following week of moving to New Yor
City.” Id. Plaintiff also alleges that the Unknown HR Employee told him that she would

process his transfer request “when he was within two weeks of moving and that it only
took a week to do.” Id. at6 14. “However,” plaintiff contends, the Unknown HR
Employee “acquiesced into the conspiracy with the others after filing such to
suppressing the transfer.” Id. Plaintiff posits that the Unknown HR Employee “failed to
give [him] any written paperwork or any proof or procedural format for such.” Id. at 7 J
In addition, plaintiff states that he “kept checking the unknown HR [Employee] to
receive written approval from the New Jersey distribution center and she always said
she was still waiting on them.” Id. at 917. Plaintiff posits that “[t]he Unknown HR
[Employee] avoid[ed] plaintiff's phone calls and did not properly process the transfer
and then refused to process it at all.” Id. at8 918. Plaintiff avers that, based on the
foregoing, the Unknown HR Employee [o]bviously join[ed] the conspiracy to fire [him] fo
m| his in house complaint of discrimination and later continuing that conspiracy to retaliate
against plaintiff for filing his EEOC inquiry by means of manufacturing false justifications
for each.” Id.
Further, plaintiff states that, on or around July 3, 2019, he “still didn’t receive
written approval” of his transfer request, but received permission from “Jesse to take a
two week NS,” non-scheduled leave of absence, from his employment at Target, “which
would start on July 8, and end July 21, 2019.” See Am. Compl. at 7 717. Plaintiff's
EEOC complaint indicates that “Jessie approved a leave of absence for [plaintiff] from
July 9, 2019 through July 19, 2019.” Dkt. No. 10-1 at 15. Plaintiff states that “[t]he
difference between the dates said in other papers,” apparently referring to his EEOC
complaint, “is because in reality [he] included his days off surrounding his approved
leave of absence period in which he wouldn’t be scheduled to work” and that “the official

papers wouldn’t reflect his days off.” Am. Compl. at 8n.6. Plaintiff has attached, as an
exhibit to his Amended Complaint, a document containing the dates of his absences
from work, which indicates that on July 2, 2019 plaintiff left work early (“EARLY OUT”),
and on July 5, 2019, plaintiff was absent from work. Dkt. No. 10-1 at 7. On July 9, 10,
11, and 12, 2019, plaintiff is listed as “ABSENT Att - Absence — No Call No Show,” and
° again listed as “ABSENT” on July 16, 2019. Id. Without having received approval of his
requested transfer, plaintiff states that he “move[ed] to New York City” on July 5, 2019.
Am. Compl. at 8 918. In August 2019, plaintiff received a termination letter from Target
dated July 16, 2019, which had initially been sent to his upstate New York address.
See id. at 9 J 20; Dkt. No. 10-1 at 15. Prior to receiving his termination letter, plaintiff
states that he “filed for his unemployment benefits from his prior employment . . . stating
| that he was unsure what his status was but he was actually laid off due to the lack of
work.” Id. at 9-10 7 19. Plaintiff's exhibits indicate that he certified for unemployment
benefits on July 23, 2019. See Dkt. No. 10-1 at 10.
Plaintiff realleges his contentions contained in his Original Complaint that, on
some unspecified date after he filed for unemployment benefits, Loveland, and
employee of the NYS DOL, “called [him] in attempts to bribe [him] in order to keep
m| receiving unemployment benefits stating he ‘is going to say he voluntarily quit his Targe
employment[.]” Am. Compl. at 9 J 22. Plaintiff reasserts that he “disagreed” with
Loveland’s alleged proposal, in response to which Loveland stated, plaintiff “was going
to state he quit or ‘face serious charges against himself from this office.” Id. Plaintiff
alleges that he again refused to comply with Loveland’s orders and “faxed the [NYS
DOL] his [w]ritten EEOC report ... and the termination papers from Target showing he

was fired and . . . did not voluntarily quit.” Id. On October 30, 2019, plaintiff filed his
EEOC complaint in which he alleged, among other things, that “Target unlawfully used
the unemployment process through the Unemployment official, who continued to ask
[him] to say that [he] voluntarily left Target of [his] own free will, all in an effort to extort
[him]—from pursuing [his] earlier discrimination claim, so that [he] would continue to
| receive unemployment benefits.” See Dkt. No. 10-1 at 15. Plaintiff contends that
Lentes attempted “to get rid of plaintiff's EEOC . . . inquiry by having the [NYS] DOL
defendants together offer plaintiff an ultimatum or/and threaten plaintiff with fraud
charges.” Id. 23 at J 51.
Plaintiff alleges that, “[o]Jn reasonable evidence and belief, [a]ll Target
[djefendants seeking to retaliate and dispose of his EEOC complaint inquiry . . . had
[the] NYS [DOL d]efendants charge [him] with fraud, and illegally collecting
unemployment benefits because he voluntarily quit his job at Target in Amsterdam[,]
New York.” Am. Compl. at 9 J 21. “[I]n furtherance of this joint conspiracy and
retaliation NYS [DOL] employee . . . Loveland] did file fraud charges and decision of
[plaintiff] illegally frauding [sic] unemployment benefits because he quit his Target
employment and did so in order to benefit [a]ll Target defendants mentioned here.” Id.
m| at 10 J] 23. Prior to filing his EEOC complaint, an Administrative Law Judge (“ALJ”) at
the NYS DOL issued an initial determination disqualifying plaintiff from receiving
unemployment benefits, finding that he received overpayment of benefits, and imposing
a civil penalty against him. See id.; Dkt. No. 10-1 at 12. Plaintiff appealed the ALJ’s
initial determination. See Dkt. No. 10-1 at 12. On October 31, the NYS DOL
Unemployment Insurance Appeals Board (“Appeals Board”) issued a decision modifying

the ALJ’s initial determination by finding that “the credible evidence establish[ed] that
[Target] discharged [plaintiff] for not show [sic] for his shifts”; plaintiff did not know why
he was terminated when he applied for unemployment benefits because he had not yet
received the termination letter and, therefore, plaintiff did not make a willful
misrepresentation; plaintiff was not overpaid $1,464.75; and that no penalty should be
o imposed. Id. On November 29, 2019, plaintiff received a right-to-sue letter from the
EEOC. See id. at 16-17
Plaintiff alleges that
Target, defendants Lentes, Cornell, Loveland and Reardon
all conspired to retaliate against plaintiff for initiating an
EEOC complaint to deprive him of his Civil Rights by
reopening plaintiffs verified unemployment claim with
Walmart, they all conspired to reopen such verified
unemployment and falsely have Target stand as the verifying
employment insurer to intimidate plaintiff from his EEOC
inquiry to Target’s discrimination and did so by denying
[plaintiff] all due process and protections and then refused to
stand on their misconduct, fake documents and blank
required documents concerning such charges at the
administrative hearing.
Id. J 23d (emphasis added). In support of his contention that Target submitted blank
documents, plaintiff points toa NYS DOL document titled “Verification of Employment,”
dated July 25, 2019. See Dkt. No. 10-1 at 20. The document lists Target and its

Amsterdam, New York, distribution center’s address, and states that plaintiff “has filed a
claim for Unemployment Insurance, naming you as a former employer. Please review
the information on the second page of this form. If you know any reason why the
claimant should not receive benefits or if the information he or she provided is incorrect,
you may protest this claim.” Id. The second page of the form is not filled out. See id. a
21. Further, plaintiff alleges that Lentes and Loveland “had several meetings . . . via

10

secret communication and conspired with the defendant which was legally representing
Target.” Id. at 11 9 23b.? Plaintiff also references an Equifax document from TALX
UCM Services, “a duly authorized agent empowered to act on behalf of [Target],” dated
August 13, 2019, sent from Lentes to the NYS DOL, which is addressed, “Dear State
Representative,” and states that the document “is in response to form LO18, Request
Additional Separation Details, dated August 9, 2019.” Id. 10-1 at 1. The document
lists plaintiff's first day of employment at Target as March 5, 2019, and his last day as
July 5, 2019, and states that plaintiff “was considered to have voluntarily quit after failing
to call or report for three scheduled days of unreported absences.” Id. Attached to the
Equifax document is the second through fourth pages of a NYS DOL questionnaire
dated August 13, 2019, which states “EFF. DT. 01/07/2019,” and provides that plaintiff's
m| last physical day of work was July 5, 2019, and that Target became aware that plaintiff
quit his job when “he did not call or report on: 7/9, 7/10, 7/11 and 7/12.” Id. at 2,3. The
questionnaire further provides that, although available, plaintiff did not “request a leave
of absence” “[b]efore quitting.” Id. at 3. Moreover, the questionnaire indicates that
plaintiff did not “request a transfer to other work” before quitting, although one was
available. Id. In addition, the questionnaire states that plaintiff did not “take any other
Steps to resolve the situation before quitting.” Id.
Plaintiff also references an August 5, 2019 Equifax document which clarifies that
plaintiff's last physical date of work was July 5, 2019; that his “[e]ffective date of
separation” was July 16, 2019; and provides that plaintiff “called inquiring about transfer

2 The “defendant” plaintiff appears to be referring to here is TALX UCM Services; however, the
Yoon notes, plaintiff has not named that entity as a defendant in this action. See Am. Compl. at

11

Tuesday 7/23/19,” in response to whether he “attempt[ed] to make contact any later”
time after his separation from employment. Dkt. No. 10-1 at 18. Plaintiff argues that th
Equifax documents and attachment are “fake,” and that all defendants acted together
and “filed papers in the unemployment office unlawfully concealing [plaintiff's] actions of
initiating the transfer process. Am. Compl. at 11 J 23d; 12 425. In addition, plaintiff
contends that, at the time he certified for unemployment benefits, “Loveland disregarde
the fact that Target was not his unemployment insurer nor paying for his unemployment
benefits, nor was their Employment Identification Number on the paperwork.” Id. at J
23a. Rather, plaintiff posits, Walmart, the owner of his previous employer, Sam's Club,
“was the entity that was sending the unemployment checks.” Id. at 16 {J 32.
Alternatively, plaintiff argues that “[a]ll defendants, . . . shared a common
Conspiracy to deprive plaintiff of his civil rights and violated several of his constitutional
rights . . . from the outset of [his] employment interview.” Am. Compl. at 31. In this
regard, plaintiff alleges that there was a “joint effort between Target and the [NYS] DOL
employees to direct diverse employee prospects to Target Distribution Center with
Target’s 2018 EEOC discrimination settlement.” Id. Plaintiff contends that the NYS
DOL facilitated unemployed persons, such as plaintiff, in obtaining employment at
Target, “knowing that Target . .. and CEO Cornell did not ever address the racially
divisive culture and atmosphere inside of its work[]places which resulted from its long
lasting racial discrimination hiring practices.” Id. Plaintiff states that “Target had prior
employees working at the [NYS] DOL unemployment office in Schenectady where

3 Plaintiff's reference to a 2018 settlement appears to be based on his “research[ of Target’s] prior legal
discrimination settlements and actions in federal courts,” which, to him, made it “obvious that the
defendants were fighting the laws surrounding equal protection of blacks.” Am. Compl. at 3 { 8.
12

plaintiff was offered a job for Target,” and that “Target and several unemployment
employees including several of the [NYS] DOL unemployment office female employees
had their spouses employed there.” Id. at3n.1. Based on these statements, plaintiff
posits that “Target and DOL had an unofficial relationship outside of normal operations
of both entities.” Id. “Thus,” plaintiff avers, there was always a meeting of the minds
between Target, Cornell, Reardon, Lentes and Loveland relevant to the conspiracy
claims despite the secret electronic communication the defendants undertook to bring
fraud charges.” Id. Moreover, he alleges that “unemployment education class
counselor whom obtained diverse employees for Target by directing unemployed
people enrolled in mandatory unemployment education to apply for employment at
Target's distribution center,” which he states further evidences that “[t]he required
meeting of the minds and state actor influence always were extant between Target and
NYSDOL in Schenectady[,] New York.” Id. at 21 J 47.
The Amended Complaint fails to plausibly allege a conspiracy claim under
Section 1983 against Target, Cornell, or Reardon. As an initial matter, to the extent that
plaintiff alleges that “there was always a meeting of the minds” based on the supposed
existence of an “unofficial relationship outside of normal operations of’ Target and the
m| NYS DOL because of the NYS DOL’s purported act of directing unemployed individuals
to employment at Target, or that spouses of NYS DOL employees worked at Target,
plaintiff's allegations are conclusory and fail to establish that Target was acting under
the color of state law. Am. Compl. at 3 1n.1; see Ciambriello, 292 F.3d 324 (citing
Spear, 954 F.2d at 68). Rather, plaintiff's allegations in this regard amount only to
“[t]hreadbare recitations of the elements of a cause of action, supported by mere

13

conclusory statements,” insufficient to plausibly state a cause of action for Section 1983
conspiracy. Iqbal, 556 U.S. at 678. In addition, with respect to Cornell, the Amended
Complaint suffers from the same defect as the Original Complaint in that plaintiff
advances only conclusory allegations with respect to Cornell’s involvement in the
alleged conspiracy and, therefore, has failed to establish Cornell’s personal
| involvement—which is fatal to his Section 1983 conspiracy claim. See Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994) (“It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” (internal quotation marks and citations omitted)).
Next, the undersigned concludes that plaintiffs Amended Complaint fails to
plausibly allege a Section 1983 conspiracy claim against the Unknown HR Employee,
m| Jesse, and Ryan. Insofar as plaintiff contends that the Unknown HR Employee
“suppress[ed]” his transfer request as part of a greater conspiracy to get him fired or
retaliate against him for his in-house complaint or EEOC complaint, his contention is
based entirely on his speculative assertion that the documentary evidence he proffered
in support of his complaint—which directly contradicts his claims—is false. See Am.
Compl. at 6 J 14, 8 918. For instance, the August 13, 2019 Equifax document
m| expressly states that plaintiff failed to request a transfer, a leave of absence, or take an
steps before moving to New York City in early July 2019—and plaintiff admits that he
moved to New York City without having received confirmation that a transfer request
was approved. Dkt. No. 10-1 at 3. In addition, plaintiff's work schedule corroborates
the August 13, 2019 Equifax document, as it states that plaintiff was “Absen|t]-No Call
No Show” on July 9, 10, 11, and 12, 2019. Id. at 7. Plaintiff fails to advance

14

nonconclusory allegations in support of his contention that all of these documents were
falsified or inaccurate. See Am. Compl. 10-12 Jf] 23a-d. Moreover, plaintiffs contention
that the Unknown HR Employee [o]bviously join[ed] the conspiracy to fire [him] for his in
house complaint of discrimination and later continuing that conspiracy to retaliate
against plaintiff for filing his EEOC inquiry,” Id. at 8 J 18, is entirely conclusory and is
° unsupported by any facts to demonstrate that the Unknown HR Employee ever made
“an agreement [with] any state actor.” Pangburn, 200 F.3d at 72. Likewise, to the
extent the Amended Complaint may read as contending that Jesse and Ryan conspired
to tamper with his transfer request, plaintiff's allegations are vague and conclusory, as
he offers no specific factual arguments regarding those defendants engaging in
conspiratorial acts. See Am. Compl. at 30.
Plaintiff's conspiracy claims against Lentes and Loveland are similarly
contradicted by his documentary evidence and also rely entirely on his conclusory
allegation that the Equifax documents and work schedule are “fake.” Am. Compl. at J
23d. Plaintiff's allegations that Lentes and Loveland engaged in a “secret
communication meeting” and that “Loveland had several meetings with . . . Lentes,” are
conclusory, as they fail to provide specific factual details of a meeting of the minds or
| concerted effort, such as time, place, or manner in which the two defendants allegedly
conspired against plaintiff. Id. at | 23a, J] 23b; see Johnson v. City of New York, 669 F.
Supp. 2d 444, 451 (S.D.N.Y. 2009) (“A bare assertion that a conspiracy existed,
unsupported by any specific factual allegations, is itself insufficient to state a plausible
claim to relief.”). In any event, the Equifax documents that plaintiff relies on in support
of his allegations contain only Lentes’ name—not Loveland’s, as they are both

15

addressed, “Dear State Representative.” Dkt. No. 10-1 at 1, 18. Thus, plaintiff's bare
assertions, supported only by the Equifax documents—which do not evidence
communication between Lentes and Loveland—fail to plausibly assert a claim that
those two defendants conspired to deprive plaintiff of his constitutional rights. See
Webster v. Fischer, 694 F. Supp. 2d 163, 194-95 (N.D.N.Y.) (dismissing the pro se
o plaintiff's Section 1983 conspiracy claim where “[nJeither [the] complaint nor the record
before the [C]ourt provide[d] . . . a showing of agreement or a meeting of the minds, or
any details as to the time and place of conspiracy or its objective.” (internal quotation
marks and citation omitted)). It is also unclear from plaintiff's submission how the
Equifax documents, which appear to be generic correspondence, could be considered
“secret,” as he obtained and proffered those documents in support of his Amended
m| Complaint. Am. Compl. at {J 23a, J 23b.
Finally, insofar as plaintiff contends that Reardon and Loveland conspired with
the Target defendants to retaliate against him by bringing false unemployment fraud
charges, plaintiff's complaint fails to plausibly allege a Section 1983 conspiracy claim.
See Am. Compl. at 9 9 21. As an initial matter, plaintiff has failed to advance any
plausible allegations that Loveland or Reardon communicated and agreed to act in
| concert with each other and/or Target to bring unemployment fraud charges against
plaintiff in retaliation for his filing complaints against Target. See Johnson, 669 F. Supp.
2d at 451. Further, to the extent that plaintiff avers that Reardon and Loveland
improperly listed Target as his employer and that, instead, Walmart should have been
listed, his claims are vague, conclusory, and entirely unsupported by any plausible
factual assertions, as plaintiff fails to explain how Walmart could possibly have been

16

responsible for his unemployment benefits when he had worked full time for Target from
March 2019, until his termination in July 2019. See id. at 11 J 23d, n.8, 16 J 32.
Moreover, the fact that the NYS DOL Appeals Board ultimately overruled the ALJ’s
initial unemployment benefits determination does not establish that the claims brought
against plaintiff were fraudulent; rather, the allegations and documentations proffered in
o support of the Amended Complaint establish that Target terminated plaintiff's
employment for his failure to attend work without calling in, and that he did not receive
his termination letter from Target prior to filing for unemployment insurance after moving
to New York City without making a transfer request and without receiving permission to
take leave on July 9, 10, 11, and 12, 2019. See Dkt. No. 10-1 at 3, 7. Indeed, plaintiff
admits that, at the time he filed for unemployment in early July 2019, after moving to
m| New York City, he was not certain of his employment status at Target, and did not
receive his termination letter until August 2019. See Am. Compl. at 8 18. In any
event, the issues of plaintiff's termination versus his voluntary discontinuance of
employment was clarified and remedied by the Appeals Board’s when it overruled the
ALJ’s initial determination, and plaintiff ultimately suffered no adverse consequences as
a result thereof. See Dkt. No. 10-1 at 12. Therefore, the fact that the NYS DOL issued
| an initial decision declaring plaintiff ineligible to receive unemployment benefits at that
time does not establish a conspiracy.

B. Section 1983 Failure to Train and/or Supervise Claims
A claim for relief under § 1983 must allege facts showing that the defendant
acted under color of a state “statute, ordinance, regulation, custom or usage.” 42

17

U.S.C. § 1983. Private parties are not liable under § 1983 unless they act under color
of state law. See Hooda v. Brookhaven Nat. Lab., 659 F. Supp. 2d 382, 392 (E.D.N.Y.
2009). “For the conduct of a private entity to be fairly attributable to the state, there
must be such a close nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of the State itself.” Crawley v.
| Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003) (internal quotation marks and
citation omitted). A private defendant may be held liable as “a willful participant in joint
activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
(1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). Alternatively, claims
under § 1983 can be brought against private entities by “showing that a person acting
under color of state law . . . collaborated or conspired with a private person . . . to
~| deprive the plaintiff of a constitutional right.” Fries v. Barnes, 618 F.2d 988, 990 (2d Cir.
1980) (citation omitted).
In the Amended Complaint, plaintiff contends that “Target and Cornell fostered a
policy of failing to establish any training substantial enough to address the racial
disparity it created and failed to enact procedures to allow anti-discrimination training
and supervision.” Am. Compl. at 32. He posits that “[djefendants lack of supervision
and training as well as their active participation of ignoring plaintiff's complaints led to
plaintiff's injuries and would not have happened if it weren’t for defendants [sic] lack of
concern and deliberate indifference for plaintiff's constitutional and civil rights.” Id. He
states that “Cornell and Target failed to supervise and/or train Defendant employees
and basically participated and ordered the facility to be conducted in such a manner
without proper diversity training.” Id. at 33. Further, plaintiff argues that neither “Target,

18

nor CEO Cornell implemented effective grievance mechanisms to resolve internal
disputes and complaints made by plaintiff in person or over the phone”; did not
“establish any legitimate or/and effective grievance procedures.” Id. at 22 {| 50.
In addition, plaintiff argues that “Reardon equally failed to train and/or supervise
NYS DOL employees, namely Loveland[,] whom both conspired with Target defendants
| to retaliate against. . . plaintiff and loan those defendants the authority of their state
office to do so and Reardon was so indifferent to plaintiff's constitutional rights that she
disregarded her employees misconduct and defiance of all said NYSDOL rules and
regulations as well as [NYS] DOL laws and procedures.” Am. Compl. at 32-33.
Plaintiff argues that Reardon allowed “Loveland and others under her control to alter he
employment documents, move to charge plaintiff without the required [NYS] DOL
m| Normal unemployment process,” and to “allow{[] the insuring employer EIN .. . to be
falsely used to identify the Target,” “which was not Target’s legal EIN” in order to “allow[
Loveland to exploit the NYS DOL process and pretend the unemployment benefits were
in connection with the plaintiff's brief employment with Target making it possible for the
Target defendants to retaliate against plaintiff using NYSDOL process and authority.”
Id. at 15-16 7 31. He asserts that,
[i]f Loveland was properly trained or/and supervised by
Defendant Reardon she would not have been able to
conspire with Target, and Lentes to deprive plaintiff of his
constitutional rights to be free from retaliation, his public
unemployment benefits would not have been interrupted and
him not being able to be harassed by a third party Target
Corporation for his complaints inside the organization nor for
his complaints to EEOC.
Id. at 12-13 J 23d. Plaintiff also contends that Reardon allowed “Loveland to ignore
inconsistencies among the unemployment data that should have raised red flags,”

19

including, plaintiff posits, that “Loveland and other employees equated the month and a
half of unemployment benefit funds plaintiff obtained prior to his employment with the
Target Company of January 19, 2019 to and through August 27, 2019 even though the
[NYS] DOL record showed his benefits were interrupted because of his employment
with Target.” Id. at J 32.
° The Amended Complaint fails to adequately allege that Target acted under color
of state law, and plaintiff fails to proffer any specific facts or arguments in support of his
contention that Target failed to train its employees. See Am. Compl. at 22-23 ¥ 50.
Further, plaintiff's claim that Cornell failed to implement a grievance procedure for
internal complaints is conclusory and contradicted by plaintiff's own allegations that the
Target defendants retaliated against him for availing himself of Target’s in-house
m| Complaint process. See id. at 22-23 J 50. As in his Original Complaint, plaintiff asserts
only vague and conclusory assertions against Cornell and, therefore, has again failed to
establish Cornell's personal involvement. See Wright, 21 F.3d at 501. Moreover, as
discussed in detail above, the Amended Complaint fails to plead facts sufficient to
establish a claim for Section 1983 conspiracy and plaintiff's allegations concerning the
purported “unofficial relationship” between Target and the NYS DOL are implausible;
| accordingly, plaintiff cannot establish supervisory liability against Cornell based on his
conspiracy allegations. See subsection II|.A., supra; Elek v. Inc. Vill. of Monroe, 815 F.
Supp. 2d 801, 808 (S.D.N.Y.2011) (where the plaintiff “has not established any
underlying constitutional violation, [the plaintiff] cannot state a claim for § 1983
supervisory liability.”); see also Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir.1999) (“Of

20

course, for a supervisor to be liable under Section 1983, there must have been an
underlying constitutional deprivation.”).
Similarly, plaintiff's allegations that Reardon allowed Loveland to ignore
applicable laws and regulations and that, had Reardon properly trained and/or
supervised Loveland, “she would not have been able to conspire with Target, and
Lentes,” are conclusory and premised on plaintiff's deficient conspiracy claims. Id. at
12-13 J 23d. Therefore, as plaintiff has failed to plausibly allege a Section 1983
conspiracy claim, he cannot establish a claim for supervisory liability against Reardon
based thereon. See Elek, 815 F. Supp. 2d at 808; Blyden, 186 F.3d at 265. Moreover,
insofar as plaintiff avers that Reardon was responsible for the NYS DOL ALJ's initial
determination because of her failure to train or supervise Loveland, plaintiff's claims are
wholly conclusory. See Am. Compl. at 13 25. As discussed above, plaintiff's
documentary evidence and pleadings undercut this assertion, as plaintiff has
established that the initial determination was the result of inadequate information,
including that plaintiff decided to file for unemployment at a time when he admittedly did
not Know his employment status with Target. See subsection IIl.A., supra. In any
event, neither Reardon’s nor Loveland’s names are contained in the NYS DOL Appeals
Board’s decision. See Dkt. No. 10-1 at 8-12.
In light of the foregoing, the undersigned concludes that plaintiff has failed to
adequately allege claims for Section 1983 conspiracy or supervisory liability. Plaintiff
has had two opportunities to adequately assert these claims and has demonstrated
twice that he is unable to state a claim upon which relief can be granted for these
claims. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (“Where it

21

appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse
of discretion to deny leave to amend.”); Brown v. Peters, No. 95-CV-01641, 1997 WL
599355 (RSP/DS), at *1 (N.D.N.Y. Sept. 22, 1997) (“[T]he court need not grant leave to
amend where it appears that amendment would prove to be unproductive or futile.”). In
addition, the undersigned acknowledges the solicitude due pro se plaintiffs, and, in
| consideration with his extensive experience with litigating cases in federal court,* the
undersigned believes all due solicitude has been properly afforded. Thus, because the
undersigned concludes that plaintiff cannot state claims for Section 1983 conspiracy
and supervisory liability without an entirely new set of facts, any further amendment
would be futile. Accordingly, plaintiff's Section 1983 conspiracy and supervisory liability
claims are dismissed with prejudice and without opportunity to amend.
I
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that the filing of plaintiff's Amended Complaint (Dkt. No. 10) be
rejected; and it is further;
ORDERED, that plaintiff's claims for conspiracy and supervisory liability pursuant
m| to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE AND WITHOUT
OPPORTUNITY TO AMEND; and it is further

4 See 04-CV-0302(NDNY), 05-CV-1311 (NDNY), 07-CV-1135 (NDNY), 09-CV-0436 (NDNY), 19-CV-
0070(NDNY), 19-CV-0830 (NDNY), 19-CV-0831 (NDNY), 02-CV-5315 (SDNY), 02-CV-6036(SDNY), 02-
Sore, (SDNY), 08-CV-0932 (SDNY), 19-CV-9773 (SDNY), 19-CV-10907(SDNY), and 19-CV-10923

22

ORDERED, that the action be DISMISSED WITH PREJUDICE against
defendants Cornell, Reardon, Loveland, Lentes, and the Unknown Target HR
Employee; and it is further
ORDERED, that plaintiff's Original Complaint (Dkt. No. 1), as limited by Chief
Judge Suddaby’s July 20, 2020 Decision & Order (Dkt. No. 7), remain the operative
o pleading, leaving as plaintiff's sole remaining claims: (1) Title VII employment
discrimination claim against Target; (2) Title VII retaliation claim against Target; (3) 42
U.S.C. § 1981 race discrimination claim against Target; (4) Title VII, 42 U.S.C. § 1981,
and/or 42. U.S.C. § 1983 hostile work environment claim against Target, Jesse Fetcho,
and Ryan Doe.°
ORDERED, that the Clerk of the Court provide plaintiff with blank summonses;
it is further
ORDERED, that plaintiff complete this proposed summons, and provide it to the
Clerk of the Court within twenty-one days from the issuance of this text order; and it is
further
ORDERED, that once the Clerk has received from plaintiff the completed,
proposed summons, that the Clerk shall issue it and forward it, along with a copy of the
complaint and a packet containing General Order 25, which sets forth the Civil Case
Management Plan used by the Northern District of New York, to the United States
Marshal for service upon the defendant; and it is further

5 Plaintiff has only identified defendant Ryan by his first name. Plaintiff is advised that he will be
required, at a future date, to seek to amend his complaint to identify this defendant by his full name.

23

ORDERED, that a formal response to the Complaint be filed by the defendant or
counsel as provided for in the Federal Rules of Civil Procedure subsequent to service o
process on the defendant; and it is further
ORDERED, that the Clerk is directed to schedule a Rule 16 Conference before
the assigned Magistrate Judge; and it is further
° ORDERED, that any paper sent by a party to the Court or the Clerk shall be
accompanied by a certificate setting forth the date a true and correct copy of it was
mailed to all opposing parties or their counsel. Any letter or other document receive
by the Clerk or the Court which does not include a certificate of service which
clearly states that an identical copy was served upon all opposing parties or their
attorneys is to be returned, without processing, by the Clerk. Plaintiff shall also
comply with any requests by the Clerk’s Office for any documents that are necessary to
maintain this action; and it is further
ORDERED, that all motions shall comply with the Local Rules of Practice of the
Northern District; and it is further
ORDERED, that this Amended Memorandum, Decision & Order SUPERSEDES
the prior Memorandum, Decision & Order (Dkt. No. 11); and it is further
ORDERED, that the Clerk serve a copy of this Decision on plaintiff in accordance
with the Local Rules.
IT IS SO ORDERED.
Dated: December 23, 2020
Albany, New York

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Christian F. Hummel
U.S. Magistrate Judge

tr

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313553. Public record. Not legal advice.