Phipps v. Northern Rivers

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RICARDO PHIPPS,

Plaintiff,

V. 1:21-CV-1036

(BKS/CFH)

NORTHERN RIVERS, et al.

Defendants.

APPEARANCES:

Ricardo Phipps

18 Parameter Avenue

Troy, New York 12180

Plaintiff pro se

I

CHRISTIAN F. HUMMEL

UNITED STATES MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER

I. In Forma Pauperis

Plaintiff pro se Ricardo Phipps purported to commence this action on September

20, 2021, with the filing of a complaint and, in lieu of paying this Court’s filing fee, a

motion for leave to proceed in forma pauperis. See Dkt. No. 1 (“Compl.”), 2. After

reviewing plaintiffs IFP application, the Court concludes that plaintiff financially qualifies

to proceed IFP for the purpose of filing only. Plaintiff is advised that, despite being

granted IFP status for the purposes of filing in this case, he is still required to pay any

fees or costs he may incur in this case.

ll. Initial Review

A. Legal Standard

Section 1915(e)' 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). 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 the plaintiff is proceeding pro se, the court must

consider the claims “liberally” and “interpret them ‘to raise the strongest arguments that

they suggest.” Cold Stone Creamery, Inc. v. Gorman, 361 F. App’x 282, 286 (2d Cir.

2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)).

m| “[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Igbal, 556 U.S. at 678. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). A pro se

litigant’s pleadings are held to a less strict standard than those drafted by an attorney.

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 his pleadings “to

raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of

1 The language of § 1915 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”). The

courts have construed that section, however, as making IFP status available to any litigant who can meet

200) financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.

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).

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

o Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall

contain, inter alia, "a short and plain statement of the claim showing that the pleader is

entitled to relief." See 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)

m| (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... .

m| FED. 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:

[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.

FED. 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

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

“In reviewing a complaint... the court must accept the material facts

o 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). However, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Igbal, 556 U.S. 622, 678 (2009). 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

I

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).

Allegations that “are so vague as to fail to give the defendants adequate notice of

the claims against them” are subject to dismissal. Sheehy v. Brown, 335 F. App’x 102,

104 (2d Cir. 2009) (summary order). Indeed, a complaint that fails to comply with these

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).

B. Complaint

o Plaintiff seeks to bring this action pursuant to Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. 20003, et seq., and the Civil Rights Act of 1991 for

employment discrimination based on his race and sex, against his former employer,

Northern Rivers, and Northern Rivers employees Michael Donahue, Executive Program

Director; Linda Daley, Chief Officer of Human Resources; Kimberly Cummins, Chief

Officer of Residential Services; Vernice Walker, Supervisor; and Jessica Mitchell,

Clinician. See Compl. at 1-3. Plaintiff alleges that he was subjected to “[u]nfair

treatment due to my race & gender as an African-American Male, and the only African-

American Male Director in the organization during my time on Employment with

Northern Rivers.” Id. at 4. Plaintiff contends that there “was a lack of empathy or

understanding for explaining my personal, cultural or professional beliefs. No cultural

sensitivity or diversity understanding by the Administration of this agency, which

| resulted in favoritism and alienation of less-favored staff.” Id.

Plaintiff provides that he began his employment at Northern Rivers in October

2016 as a Program Coordinator. See Compl. at 14. From his hiring date to August

2018, plaintiff received no negative reports, complaints, write ups, or concerns about his

performance. See id. Plaintiff was nominated for various awards and committees. See

id. In August 2019, plaintiff was promoted to the Director of the New Directions

program. See id. at 15. From August 2019 to June 2019, plaintiff received no “write

ups” or any reported problems or concerns, but also had “[nJo regular scheduled

supervision,” [n]o feedback from Supervisor” and no job description had been provided

to him. Id. On July 1, 2019, plaintiff received a performance evaluation, which was

revised on July 16, 2019. Id.* On October 28, 2019, plaintiff “received a PDN° as a

written warning for sending out several emails late (Not training or supervision note, or a

verbal warning, but a written warning).” Id. On November 15, 2019, plaintiff was placed

on unpaid administrative leave. See id. On November 21, 2019, plaintiff “met with Mr.

Rondeau regarding internal investigation,” and on November 26, 2019, plaintiff was

terminated. Id.

Plaintiff provides that beginning in 2019, he had a “staff incident,” which he

immediately reported to Mr. Donahue and Ms. Cummins. Compl. at 4. The staff

incident involved his reporting of an “off work sexual accusation,” but in his July or

August 2019 evaluation, which was his “1S' and only evaluation through November

2019,” “Mr. Donahue accused me of not accurately reporting this incident because he

could not accurately recall the events on the day of 2.9.19” and “fabricated what he

believed to be the truth of what he recalled from this day.” Id. at 14. However, plaintiff

| alleges that three nonparty employees, Ms. Walker, Ms. Carpenter, and Mr. Michael

Johnson “can confirm and verify the accuracy of my statement regarding this incident.”

Id. Plaintiff contacted Ms. Daley in Human Resources “to express my concerns of unfair

treatment by Mr. Donahue and schedule a meeting to address and discuss.” Id. In

October 2019, plaintiff “[rljeceived a disciplinary write up from Dr. Donahue, following my

2 Plaintiff does not explain the contents of the performance evaluation or revised evaluation.

3 Plaintiff does not define “PDN” for the Court.

request for my remaining pay-salary increase.” Id. In November 2019, plaintiff “met

with Ms. Cummins again to express my concerns with Mr. Donahue, then met with Ms.

Daley a day later[.]’ Id. On November 15, 2019, plaintiff was placed in administrative

leave, and on November 26, 2019, was terminated. See id.

Plaintiff next refers to an incident involving an employee he supervised, Ms.

| Mitchell, apparently relating to her reaching out to supervisory staff seeking

“opportunities for growth” and seeking a meeting, which plaintiff felt was not

“professionally appropriate” and “diminished [my] authority that | had with her as one of

my staff.” Compl. at 7.

Plaintiff alleges retaliation for making complaints to the director/chief of Human

Resources, Ms. Daley, and to the Chief of Residential Services, Ms. Cummins. See

Compl. at 12. Plaintiff further alleges “[s]lander and defamation of character by

administrators and staff of the organization.” Id. Checking off boxes on the form Title

Vil complaint, plaintiff contends that he was discriminated against through the

termination of his employment, unequal terms and conditions of employment, and

retaliation. See id. at 2. Plaintiff provides that he filed charges with the Equal

Employment Opportunity Commission (“EEOC”) on December 16, 2019, and received

{an EEOC Notice-of-Right-to-Sue letter on June 15, 2021.4 See id. at 12, 21. Plaintiff

demands $500,000 for each of three causes of action, totaling $1,500,000, “[dJue to the

violation of my Constitutional Rights and a member of a protected class in the

workplace.” Id. at 12.

4 The right to sue letter is dated June 15, 2021. Plaintiff commenced this action on September 20, 2021,

which is more than ninety days after the date of the right to sue letter. However, it is not clear on what

day plaintiff received the right to sue letter.

It appears that plaintiff alleges that he faced race and sex discrimination and

retaliation relating, in part, to concerns he had and expressed about an employee under

his supervision, Jessica Mitchell. See Compl. at 5. Plaintiff feels that there was “an

overwhelming show of care and support for here [sic] needs to be addressed, heard and

resolved,” but that plaintiff's “concerns” about Ms. Mitchell's “progress and work

° abilities,” which he raised to Mr. Donohue, Ms. Daley, and Ms. Cummins in August and

October of 2019, “were neither acknowledged nor ever addressed.” Id. Further, plaintiff

provides that Ms. Mitchell “was never held accountable for any of her interactions,” but

he was terminated “even after initiating on attempts to resolve any work[-]related

differences or discrepancies prior to any disciplinary action being taken against me.” Id.

Plaintiff further contends that supervisor Vernice Walker “forced” non-party

Northern Rivers employees Robert Ward and Diana Avery “to make a false report to my

Supervisor at the time Mr. Donahue, advising that | was neither competent nor effective

at my role as a Director of the program.” Compl. at 5. Plaintiff also attaches several

exhibits to the complaint, made up of e-mails which plaintiff appears to seek to

incorporate into his complaint by reference. In these e-mails, it appears that it was

alleged that, after Ms. Mitchell made a comment at a staff meeting, plaintiff yelled at Ms.

| Mitchell, told her that “it was stupid of her’ to make the comment, slammed his hand on

the table, and cursed. See id. at 11. Plaintiff disputed engaging in the alleged conduct

and claimed that witnesses to the conversation exchange supported his version of

events. See id.

D. Initial Review

Plaintiff appears to argue that he was discriminated against based on his race

and gender insofar as he was terminated from his employment (1) after a supervisor

falsely alleged that he failed to report an allegation of sexual misconduct involving a

staff member, and (2) relating to concerns he had over an employee he supervised, Ms.

Mitchell. See generally Compl. Plaintiff also appears to argue that he was treated

o differently than an employee he supervised insofar as her concerns were addressed

and treated sympathetically, but his concerns over her performance were ignored. See

id. Further, plaintiff appears to argue that his termination was disproportionate and in

retaliation for his complaints to human resources and superiors as he was not offered

any other form of intervention or feedback before his sudden termination, and he

otherwise had no negative performance reviews or complaints. See id. Finally, he

States that he was subject to a higher level of scrutiny due to his race and gender and

status as the only African-American male director. See id. at 16.

1. Section 1983 — Constitutional Claim

Insofar as plaintiff generally references unspecified violations of his constitutional rights,

such claims must be dismissed. It is well settled that “simply raising a federal issue in a

complaint will not automatically confer federal question jurisdiction” nor does “vague

references to ‘civil rights.” Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 137 (2d Cir.

2002) (citation omitted). Second, “[t]o state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Because the United States

Constitution regulates only the Government, not private parties, a litigant claiming that

his constitutional rights have been violated must first establish that the challenged

conduct constitutes ‘state action.” United States v. Int'l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum

v. Yaretsky, 457 U.S. 991, 1002 (1982)). Therefore, a private party may only be held

®| liable under § 1983 as “a willing participant in joint activity with the State or its agents.”

Adickes v. S.H. Kress & Co., 398 U.S. 1442 (1970) (quoting United States v. Price, 383

U.S. 787, 794 (1966)).

Plaintiff fails to name as defendants any state actors or allege that any of the

private defendants were acting under the color of state law or conspired or collaborated

with a state actor to deprive him of a constitutional right. See Fries v. Barnes, 618 F.2d

990 (2d Cir. 1980) (citing Adickes, 398 U.S. at 990). Further, plaintiff fails to allege

the violation of any right secured by the Constitution. See West, 487 U.S. at 48.

Accordingly, plaintiff has not stated a claim for violation of any constitutional right under

42 U.S.C. § 1983; therefore, to the extent that the complaint seeks to raise a claim for a

violation of an unspecified constitutional right, this claim must be dismissed.

2. Title VII

As a threshold issue, plaintiff cannot bring Title VII claims against the individual

defendants in their official capacities. “It is well-established that ‘individual defendants

with supervisory control over a plaintiff may not be held personally liable under Title

VII.” Bottge v. Suburban Propane, 77 F. Supp. 2d 310, 313 (N.D.N.Y. 1999) (quoting

Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); see also Wrighten v. Glowski,

232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (“[l]Jndividuals are not subject to liability

10

under Title VII.”). Accordingly, it is recommended that any claims against individual

defendants Michael Donahue, Kimberly Cummins, Linda Daley, Vernice Walker, and

Jessica Mitchell brought pursuant to Title VII be dismissed with prejudice.

a. Discrimination

o Under Title VII, “[iJt shall be an unlawful employment practice for an employer

(1) to. . . discharge any individual, or otherwise 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); Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). Sex discrimination

claims under Title VII are analyzed under the three-step burden shifting scheme

| articulated by the Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792,

802-05 (1973). Under the McDonnell Douglas, the plaintiff bears the initial burden of

establishing a prima facie case of discrimination. See id. at 802. “The requirements to

establish a prima facie case are minimal, and a plaintiff's burden is therefore not

onerous.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir.

2012) (internal quotations and citations omitted). If the plaintiff establishes a prima facie

m| case, there is a presumption that the employer unlawfully discriminated against the

employee.

To demonstrate a claim for discrimination in violation of Title VII, a plaintiff must

set forth nonconclusory allegations demonstrating that he (1) belongs to a protected

class, (2) is qualified for the position at issue, (3) his employment was terminated or he

suffered another form of adverse action, and (4) the adverse action occurred under

11

circumstances that give rise to an inference of discrimination. See Feingold v. New

York, 366 F.3d 138, 152 (2d Cir. 2004).

Here, although plaintiff has demonstrated that (1) he belonged to a protected

class, (2) was at least arguably qualified for his position, and (3) he was terminated,

plaintiff's complaint does not suggest that this was done under circumstances giving rise

to an inference of discrimination. Insofar as plaintiff seeks to set forth a claim for

discrimination under Title VII, plaintiff has failed to set forth a plausible link between the

adverse actions he alleged he faced, termination, being denied pay increases, and

being held under “higher scrutiny” to either his race or sex. Compl. at 16. Although

plaintiff contends that he was retaliated for filing complaints with human resources or

other supervisory staff, plaintiff does not demonstrate that he was retaliated against for

Complaining about race or sex discrimination. Rather, he contends that he was

retaliated against for complaining for receiving a “disciplinary write up” from his

supervisor after making a “Request for my remaining pay-salary increase.” Id. at 4. His

complaint also alludes that he was terminated due to his supervisor falsely claiming that

plaintiff had inaccurately reported an allegation of sexual misconduct by an employee.

An e-mail attached to the complaint, which was sent after plaintiff was terminated from

defendant Northern Rivers, appears to indicate that plaintiff expressed concerns that he

was subjected to a “higher level of scrutiny” due to his sex and race. Id. at 16.

However, the e-mail does not suggest that he complained about being subjected to a

higher level of scrutiny due to his race and sex and was terminated because of his

complaint.

12

Further, insofar as plaintiff indicates, by checking the relevant box on his form

complaint, that he was subjected to unequal terms and conditions of employment, the

only suggestion of such a claim is plaintiff's statement that his concerns about a

subordinate employee were not addressed, whereas the female subordinate® was given

“an overwhelming show of care and support for here [sic] needs to be addressed, heard

| and resolved.” Compl. at 5. Further, plaintiff generally states that he was subject to

higher levels of scrutiny, but does not identify other, similarly-situated employees who

were subjected to lesser scrutiny. Id. at 16. To establish a Title VII claim for unequal

terms and conditions of employment, “plaintiff must show that there were other similarly

situated employees, outside of the protected class, who engaged in conduct

substantially similar to that of plaintiff but received preferential treatment.” Vanhorne v.

New York City Transit Auth., 273 F.Supp.2d 209, 216 (E.D.N.Y.2003). Thus, plaintiff

needs to make sufficient factual allegations to demonstrate that the unequal terms or

conditions were due to his membership in a protected class to state a sufficient claim for

race discrimination, as opposed to his position as a supervisor and the other

employee’s position as a subordinate, or another reason. Indeed, as plaintiff was in a

director role, it is unclear how plaintiff would be similarly-situated to Ms. Mitchell, a

Subordinate employee. See, e.g., Baker v. Medical Answering Svcs., LLC, 5:18-CV-870

(BKS/ATB), 2019 WL 634654, at *3 (N.D.N.Y. Feb. 14, 2019) (“While an inference of

discrimination may be drawn from a showing of disparate treatment—evidence that the

Plaintiff was treated less favorably than similarly situated employees of different races—

there are no such facts alleged here.”) (citing Mandell v. County of Suffolk, 316 F.3d

5 The employee's race is not specified.

13

368, 379 (2d Cir. 2003)) (emphasis added). The statements in plaintiff's complaint are

insufficient to demonstrate that any unequal terms and conditions of employment were

due to his race or sex. See, e.g., Arroyo-Horne v. City of New York, No. 16-CV-03857,

2018 WL 4259866, at *15 (E.D.N.Y. Sep. 5, 2018) (dismissing a claim where the

“[p]laintiff fails to allege facts to support her claim that either alleged adverse

o employment action was discriminatory based on her race’).

Accordingly, it is recommended that plaintiff's Title VII race and sex

discrimination claims against Northern Rivers be dismissed without prejudice and with

opportunity to amend to provide sufficient factual support as detailed herein.

b. Retaliation

“To establish a prima facie case of retaliation under Title VII, a plaintiff must show

m|(1) that she was engaged in protected activity by opposing a practice made unlawful by

Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse

employment action; and (4) that there was a causal connection between the protected

activity and the adverse action.” Czerwinski v. New York State Dep't of Corr. & Cmty.

Supervision, 394 F. Supp. 3d 210, 222-23 (N.D.N.Y. 2019) (quoting Galdieri-Ambrosini

v. National Realty & Development Corp., 136 F.3d 276, 292 (2d. Cir. 1998)).

“To demonstrate participation in a protected activity, a plaintiff in a

retaliation case need not prove that the conditions she protested

amounted to an actual Title VII violation; she need only establish that she

had a good faith, reasonable belief that a violation occurred.” Hubbard v.

Total Comme'ns, Inc., 347 F. App'x 679, 681 (2d Cir. 2009) (citing

Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir.1999)).

However, “the plaintiff is ‘required to have had a good faith, reasonable

belief that [she] was opposing an employment practice made unlawful by

Title VII.” Kelly v. Howard |. Shapiro & Assocs. Consulting Engineers,

P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting McMenemy v.

City of Rochester, 241 F.3d 279, 285 (2d Cir. 2001)).

14

Czerwinski, 394 F. Supp. 3d at 223.

Further, plaintiff generally states, without explanation, that Northern Rivers

lacked “empathy or understanding” for his “personal, cultural or professional beliefs” and

that there was a lack of “cultural sensitivity or diversity understanding by the

Administration of the Agency, which resulted in favoritism and alienation of less favored

| staff,” but plaintiff provides no details about a “lack of understanding” as it relates to his

membership in a protected class. Plaintiff makes no allegations that relate to “cultural

insensitivity” or “diversity understanding,” or explain how the apparent lack of cultural

sensitivity or diversity understanding amounted to race or sex discrimination under Title

VII.

Accordingly, it is recommended that plaintiff's Title VII retaliation claim against

m| Northern Rivers be dismissed without prejudice and with opportunity to amend to

provide sufficient factual support, as identified herein.

4. Defamation

At the close of his complaint, plaintiff conclusorily states that he also seeks

damages for “slander and defamation of character.” See Compl. at 12. Plaintiff does

Not tie any facts into these allegations. Reading the complaint liberally and to raise the

strongest argument it could suggest, it is arguable that plaintiff is contending that the

allegedly false allegations that plaintiff failed to timely or properly report an incident of

sexual misconduct; the incident where it was alleged that he yelled at an employee,

slapped a table, and cursed; or Ms. Walker’s alleged action of forcing non-party

employees “to make a false report to ... Mr. Donahue, advising that | was neither

15

competent nor effective at my role as a Director of the program” amounts to slander.

Compl. at 5.

Defamation is a state law claim, and slander is one form of defamation. “Under

New York law, ‘[dJjefamation is the injury to one's reputation either by written expression,

which is libel, or by oral expression, which is slander.” Kennedy v. City of New York,

No. 12 CIV. 4166 KPF, 2015 WL 6442237, at *12 (S.D.N.Y. Oct. 23, 2015)® (quoting

Lan Sang v. Ming Hai, 951 F. Supp. 2d 504, 517 (S.D.N.Y. 2013)). Under New York

law, slander is defined as “(1) a defamatory statement of fact, (2) that is false,

(3) published to a third party, (4) of and concerning the plaintiff, (5) made with the

applicable level of fault on the part of the speaker, (6) either causing special harm or

constituting slander per se, and (7) not protected by privilege.” O'Diah v. Yogo Oasis,

m|954 F. Supp. 2d 261, 275 (S.D.N.Y. 2013) (quoting Liberman v. Gelstein, 80 N.Y.2d

429, 434-35 (N.Y. 1992)). Moreover, “truth is an absolute defense to an action based

on defamation.” Fine v. ESPN, Inc., 11 F. Supp.3d 209 (N.D.N.Y. Mar. 31, 2014)

(quoting Goldberg v. Levine, 97 A.D.3d 725 (N.Y. App. Div. 2012)).

Plaintiffs claim for defamation is subject to a one-year statute of limitations. See

N.Y. C.P.L.R. § 215(3). Under New York law, “[nJo court shall extend the time limited by

| law for the commencement of an action.” N.Y. C.P.L.R. § 215(3). Claims for slander

“generally accrue[] on the date of the first publication.” Rissetto v. County of Clinton,

8:15-CV-720 (GTS/CFH), 2016 WL 4530473, at *33 n.105 (quoting Hoesten v. Best, 34

A.D. 3d 143, 150 (N.Y. App. Div. 2006), accord. Karam v. First Am. Bank of New York,

190 A.D.2d 1017, 1018 (N.Y. App. Div. 4" Dept. 1993) (“In an action for slander, the

8 Copies of all unpublished decisions cited within this Report-Recommendation & Order have been

provided to plaintiff.

16

Statute of Limitations runs from the time of the utterance, not the discovery of the

slanderous matter.”)).

As the statements plaintiff appears to allege to be defamatory were made in

February and November 2019, see Compl. at 14, and plaintiff commenced this action in

September 2021, even if plaintiff could demonstrate all of the elements of slander,’ any

such claim is clearly barred by the statute of limitations and must be dismissed.

lll. Conclusion

Generally, it is preferred that pro se plaintiffs be provided at least one opportunity

to amend their complaints. Given that plaintiff cannot cure the defects in his slander

claim, as the statute of limitations is expired, it is recommended that this claim be

dismissed with prejudice. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)

(concluding that 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.”);

see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of

course, where a plaintiff is unable to allege any fact sufficient to support its claim, a

complaint should be dismissed with prejudice.”). Further, as plaintiff's Title VI| claims

| against the individual defendants are barred, it is also recommended that these claims

be dismissed without prejudice. See id.

7 Even assuming, arguendo, that the statements plaintiff intends to identify as slander are the allegations

that (1) he failed to timely report an incident of sexual assault; and (2) yelled at a subordinate, slammed

his hand on a table, and cursed, suffice to injure his reputation, plaintiff's complaint does not make clear

how any a false statement harmful to his character was “published” to a third party.

17

Insofar as plaintiff may seek to raise a section 1983 claim, although plaintiff does

not identify any constitutional right that was violated and does not allege that any state

actors were involved or that any named defendants acted under color of state law, even

though it appears highly unlikely, Keeping in mind the special solicitude due to the pro

se plaintiff, it is potentially possible that he may amend to allege such additional facts to

be able to state a section 1983 claim. Accordingly, it is recommended that, to the extent

a liberal reading of plaintiff's complaint suggests that he seeks to raise a section 1983

claim against the individual defendants, such claim is dismissed without prejudice.

Finally, to the extent plaintiff seeks to bring a claim for retaliation and discrimination of

his race and sex in violation of Title VIl against defendant Northern Rivers, it is

recommended that this claim be dismissed without prejudice and with opportunity to

m} amend.

Should the district judge adopt this Report-Recommendation & Order and permit

plaintiff an opportunity to amend his complaint,® plaintiff is advised that any amended

complaint supersedes and replaces the original complaint in its entirety. Thus, plaintiff

must reallege all facts and claims on which he wishes to proceed and may not

incorporate any portion of the original complaint by reference. See Shields v. Citytrust v.

Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an

amended complaint ordinarily supersedes the original, and renders it of no legal

effect.”); see also N.D.N.Y. L.R. 7.1(a)(4) (noting that an amended complaint

supersedes and replaces an original pleading in all respects and that “a party shall not

8 Plaintiff is advised to await the District Judge’s review of this Report-Recommendation & Order prior to

any amended complaint in order to see whether the District Judge will permit amendment of his

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incorporate any portion of its prior pleading into the proposed amended pleading by

reference.”). Further, if plaintiff is permitted an opportunity to file an amended

complaint, it must satisfy the plausibility standard outlined in Ashcroft v. Igbal, 556 U.S.

662 (2009), which requires plaintiffs to “plead[ ] factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

| Id. at 678 (internal citations omitted).

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

ORDERED, that plaintiffs in forma pauperis application, dkt. no. 2, is GRANTED

for the purpose of filing; and it is

RECOMMENDED, that plaintiff's claims for (1) discrimination and retaliation in

violation of Title VII against the individual defendants, and (2) slander against all

defendants, Dkt. No. 1, be DISMISSED WITH PREJUDICE; and it is further

RECOMMENDED, that plaintiff's claims for (1) discrimination and retaliation in

violation of Title VII against his former employer Northern Rivers, and (2) section 1983

claim, Dkt. No. 1, be dismissed WITHOUT PREJUDICE and with opportunity to

amend; and it is further

RECOMMENDED, that if the District Judge adopts this Report-Recommendation

& Order and permits plaintiff an opportunity to amend his complaint, and if plaintiff fails

to file an amended complaint within the timeframe set forth by the District Judge, the

Clerk of the Court will close this case without further order of the Court.

IT IS SO ORDERED.

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

file written objections to the foregoing report. Such objections shall be filed with the

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Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

(14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984

F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d

15, 16 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).°

Dated: March 29, 2022

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

ry

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

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

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

See 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. See id. § 6(a)(1)(c).

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