Garzon v. Jofaz Transportation, Inc.
Filing
29
ORDER granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim: For the reasons set forth in this Memorandum and Order, defendants request to strike the newspaper articles attached tothe complaint is GRANTED. Defend ant's motion to dismiss is DENIED as to plaintiff's claims for discriminatory treatment and a hostile work environment. Defendant's motion is GRANTED with respect to all other causes of action alleged in the complaint, with leave to re -plead these claims within 30 days of the date of this Order. This matter is recommitted to Magistrate JudgeViktor V. Pohorelsky for continued pretrial supervision.The Clerk of Court is directed to transmit a copy of this Order to plaintiff pro se via U.S. Mail. Ordered by Judge Roslynn R. Mauskopf on 2/28/2013. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
PIEDAD GARZON,
Plaintiff,
MEMORANDUM & ORDER
11-CV-5599 (RRM) (VVP)
- against JOFAZ TRANSPORTATION, INC.,
Defendant.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Piedad Garzon, proceeding pro se and in forma pauperis, commenced this action
in the United States District Court for the Southern District of New York on August 2, 2011.
(Doc. No. 2.) The complaint alleged discrimination in violation of the Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 296 et seq. (Id.) By an Order dated November 10, 2011, the
action was transferred to this Court. (Doc. No. 12.) On April 30, 2012, defendant requested a
pre-motion conference regarding two motions it wished to file pursuant to Fed. R. Civ. P.
12(b)(6) and Fed. R. Civ. P. 12(f). (Doc. No. 18.) By an Order dated October 24, 2012, this
Court dispensed with the pre-motion conference and directed the parties to file their motion
papers. On January 28, 2013, defendant filed a copy of this fully briefed motion to dismiss.
(Doc. No. 25.) For the reasons that follow, defendant’s motion is GRANTED in part and
DENIED in part.
STANDARD OF REVIEW
When deciding a motion to dismiss, the Court’s review is “limited to facts stated on the
face of the complaint, in documents appended to the complaint or incorporated in the complaint
by reference, and to matters of which judicial notice may be taken.” Allen v. WestPointPepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). In order to withstand a motion to dismiss, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). At this stage the Court takes all factual allegations in the
complaint as true and draws all reasonable inferences in favor of the non-movant. See Harris v.
Mills, 572 F.3d 66, 71 (2d Cir. 2009). A complaint need not contain “‘detailed factual
allegations,’” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555).
Although a pro se plaintiff must satisfy pleading requirements, the Court is “obligated to
construe a pro se complaint liberally.” See Harris, 572 F.3d at 71-72 (citations omitted). In
other words, the Court holds pro se pleadings to a less exacting standard than pleadings drafted
by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F.3d 202,
213-14 (2d Cir. 2008) (citation omitted). Since pro se litigants “are entitled to a liberal
construction of their pleadings,” the Court reads pro se pleadings to “raise the strongest
arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal
citations omitted). However, the Court “need not argue a pro se litigant’s case nor create a case
for the pro se which does not exist.” Molina v. New York, 956 F.Supp. 257, 259 (E.D.N.Y.
1995). When a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court
must dismiss the claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation
omitted).
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DISCUSSION
Pursuant to Rule 12(b)(6), defendant has moved to dismiss the complaint on the ground
that plaintiff has failed to state a claim for race or gender discrimination. (Doc. No. 25.) First,
however, the Court considers defendant’s request pursuant to Rule 12(f) to strike certain
newspaper articles appended to the complaint. (Def.’s Mem. of Law in Supp. (Doc. No. 26) at 78.)
I.
Motion to Strike
Plaintiff attached to her complaint newspaper articles describing investigations of
corruption involving several bus companies, including defendant. (See Doc. No. 2 at 17-18.)
Defendant seeks to strike this material as prejudicial and irrelevant. (See Def.’s Mem. of Law in
Supp. (Doc. No. 26) at 7-8.) Rule 12(f) allows a court to “order stricken from any pleading . . .
any redundant, immaterial, impertinent, or scandalous matter.” Fed R. Civ. P. 12(f). “Motions to
strike ‘are not favored and will not be granted unless it is clear that the allegations in question
can have no possible bearing on the subject matter of the litigation.’” Crespo v. New York City
Transit Auth., No. 01-CV-0671, 2002 WL 398805, at *11 (E.D.N.Y. Jan. 7, 2002) (quoting
Lennon v. Seaman, 63 F.Supp.2d 428, 446 (S.D.N.Y. 1999)). A motion to strike matter as
impertinent or immaterial “will be denied, unless it can be shown that no evidence in support of
the allegation would be admissible.” Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893
(2d Cir. 1976); Lynch v. Southampton Animal Shelter Found. Inc., 278 F.R.D. 55, 63 (E.D.N.Y.
2011). In order to succeed on a motion to strike, a movant must show “(1) no evidence in
support of the allegations would be admissible; (2) the allegations have no bearing on the
relevant issues; and (3) permitting the allegations to stand would result in prejudice to the
movant.” Roe v. City of New York, 151 F.Supp.2d 495, 510 (S.D.N.Y. 2001). Ultimately,
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whether to grant a motion to strike is committed to the sound discretion of the district court. See
Chacko v. Dynair Services Inc., No. 96-CV-2220 (SJ), 1998 WL 199866, at *1 (E.D.N.Y. Mar.
15, 1998).
In light of the allegations in the complaint, the Court concludes that these articles
“amount[] to nothing more than name calling” and do not contribute to plaintiff’s substantive
claims. Global View Ltd. Venture Capital v. Great Cent. Basin Exploration, L.L.C., 288
F.Supp.2d 473, 481 (S.D.N.Y. 2003). First, it is highly unlikely that newspaper articles about an
investigation into corruption would have any bearing on plaintiff’s claims for discrimination
under Title VII or the NYSHRL. The articles neither relate to any element of plaintiff’s claims
nor provide any circumstantial evidence from which permissible inferences could be drawn.
Second, given the attenuated link between the subject of these articles and plaintiff’s suit, the
prejudicial quality of the articles stands in stark contrast to any probative value. Finally, the
inclusion of the articles fosters the false inference that plaintiff’s employer is unscrupulous and
therefore more likely to have discriminated against plaintiff – an inference the rules of evidence
strenuously seek to discourage. See, e.g., Fed. R. Evid. 403, 404. The Court concludes that
defendant’s motion to strike the newspaper articles should be granted.
II.
Motion to Dismiss
Claims brought under Title VII are usually analyzed under the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that analysis, a
plaintiff must make out a prima facie case that demonstrates (1) she was within the protected
class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and
(4) the adverse action occurred under circumstances giving rise to an inference of discrimination.
See McDonnell Douglas, 411 U.S. 802-04; United States v. Brennan, 650 F.3d 65, 93 (2d Cir.
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2011). The same analysis applies to claims brought under the NYSHRL. See Song v. Ives
Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). However, McDonnell Douglas does not
apply at the motion to dismiss stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)
(“This Court has never indicated that the requirements for establishing a prima facie case under
McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to
survive a motion to dismiss.”); Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F.Supp.2d 228, 236
(E.D.N.Y. 2011). Thus, the standard here is simply whether plaintiff’s complaint satisfies
federal pleading requirements.
The complaint in this case alleged discrimination in violation of the Title VII and the
NYSHRL, claiming unlawful termination and unequal terms and conditions of employment.
(Doc. No. 2.) Construing the complaint liberally, the Court interprets it as raising claims for (1)
discriminatory treatment in the assignment of bus routes; (2) unlawful withholding of wages; (3)
a hostile work environment; and (4) wrongful termination. The Court considers each of these
claims individually.
A. Discriminatory Treatment
Although plaintiff identifies and describes numerous situations in which she was
allegedly treated unfavorably or unfairly, little in the complaint or the attached documents allows
the Court to conclude that this treatment was traceable to plaintiff’s race, gender, or national
origin.1 While direct evidence of discrimination is not required and cases such as this often rest
on the cumulative weight of circumstantial evidence, see Norton v. Sam’s Club, 145 F.3d 114,
119 (2d Cir. 1998), “a jury cannot infer discrimination from thin air.” Lizardo v. Denny’s, Inc.,
1
While defendant asserts that plaintiff claimed discrimination solely on the basis of race or gender (see Def.’s Mem.
of Law in Supp. (Doc. No. 26) at 1), plaintiff never limited her claims in this manner. Plaintiff indicated only that
she was alleging discrimination in violation of Title VII, which includes race, color, gender, religion, and national
origin. (See Doc. No. 2 at 1.)
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270 F.3d 94, 104 (2d Cir. 2001). Evidence of differential treatment alone is insufficient to
establish discrimination. See Grillo v. New York City Transit Auth., 291 F.3d 231, 235 (2d Cir.
2002); Lizardo, 270 F.3d at 104.
A “complaint consisting of nothing more than naked assertions, and setting forth no facts
upon which a Court could find a violation . . . fails to state a claim under 12(b)(6).” Martin v.
New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978). Because the
majority of plaintiff’s allegations do “little more than cite to [her] mistreatment and ask the court
to conclude that it must have been related to [her] race [or gender],” Lizardo, 270 F.3d at 104,
the allegations in the complaint do not plausibly give rise to a claim for discriminatory treatment.
To the extent that plaintiff claims generally that she suffered discriminated during her
employment, the allegations in the complaint are too vague or conclusory to support a claim for
relief. Cf. Patterson v. Newspaper & Mail Deliverers’ Union of New York & Vicinity, No. 73CIV-3058 (WCC), 2005 WL 3750749, at *16 (S.D.N.Y. July 13, 2005) (stating that “[t]he mere
fact that [plaintiff] believes white employees similarly situated . . . were given jobs more often is
not a sufficient basis to infer discrimination”).
There is, however, one exception. In her response to the New York State Division of
Human Rights,2 plaintiff alleged that an Italian American woman named “Sharon” was hired
after plaintiff and “given full time status and a permanent bus route.” (Doc. No. 2 at 16.) In her
opposition to defendant’s motion, plaintiff asserts that this was contrary to plaintiff’s “seniority.”
(Pl.’s Aff. in Opp. (Doc. No. 27) at 2.) “A clear statement from the plaintiff alleging
discrimination by the defendant” is generally sufficient to satisfy the pleading standard at this
stage. Lax, 812 F.Supp.2d at 237. Although actions contrary to seniority are not themselves
2
This document was appended to the complaint and so can be considered by the court. See Allen, 945 F.2d at 44.
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actionable as discrimination, taken together these allegations are sufficient to state a plausible
claim for discriminatory treatment on the basis of race, color, or national origin. Consequently,
plaintiff has adequately alleged a claim for discriminatory treatment with respect to the duties
she was assigned.
B. Unlawful Withholding of Wages
Plaintiff also alleges that defendant refused to pay plaintiff at the rate specified in her
employment agreement for driving a large bus. (See Doc. No. 2 at 5, 16.) In support of this
claim, plaintiff appended copies of her pay stubs reflecting what she alleges is an incorrect
amount. (See id. at 6-7.) Properly pled, this is a claim for a breach of plaintiff’s employment
contract. In the absence of any competent allegations concerning the actual agreement, however,
the Court is unable to conclude that plaintiff has “nudged [her] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570. Accordingly, this claim must be
dismissed.
C. Hostile Work Environment
Although plaintiff’s complaint broadly asserts claims for discrimination, her claim
regarding unequal work conditions is best interpreted as a hostile work environment claim. Cf.
Dingle v. Bimbo Bakeries, No. 11-CV-2879 (CBA) (VVP), 2012 WL 2872161, at *3 (E.D.N.Y.
July 12, 2012). “A hostile work environment claim requires a showing (1) that the harassment
was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment,’ and (2) that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The test incorporates
both “objective and subjective elements,” requiring that the misconduct shown was “severe or
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pervasive enough to create an objectively hostile or abusive work environment” and that the
plaintiff “subjectively” perceived that the environment was abusive. Harris v. Forklist Sys., Inc.,
510 U.S. 17, 21 (1993).
Liberally construed, plaintiff’s complaint alleges that (1) she is female; (2) she was the
only woman among several male co-workers; (3) the general office environment was “obscene”;
(4) she alone was forced to remain in the office during the day; (5) she alone was required to
“announce” when she needed to use the restroom; and (6) that she suffered emotional damages
as a result. (See Doc. No. 2 at 3-5.) Several factors help to determine whether a work
environment is objectively hostile, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at
23. However, “no single factor is required.” Id. Mindful of the latitude afforded to pro se
litigants and assuming the validity of plaintiff’s allegations, the Court cannot say that plaintiff
has failed to plead a plausible hostile work environment claim.
D. Wrongful Termination
Finally, plaintiff’s complaint alleges unlawful termination of her employment. (Doc. No.
2 at 2.) The only facts alleged with respect to this claim, however, are that plaintiff’s employer
failed to provide her with a letter of termination and did not remove plaintiff from their system in
a timely manner. (See id. at 5.) There are no allegations that plaintiff was terminated because of
her race, gender, or national origin, nor are there any facts to suggest such discrimination. As
such, plaintiff has failed to state a claim for unlawful termination.
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III.
Leave to Amend
Rule 15(a) contemplates that courts will “freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Where a cause of action is dismissed due to deficient
pleading, leave to amend should generally be granted. See Foman v. Davis, 371 U.S. 178, 182
(1962); Petrone v. Hampton Bays Union Free Sch. Dist., No. 03-CV-4359 (SLT) (ARL), 2009
WL 2905778, at *15-16 (E.D.N.Y. Sept. 10, 2009). This is especially true when a litigant
proceeds pro se. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Marcelin v. CortesVazquez, No. 09-CV-4303 (RRM) (JMA), 2011 WL 346682, at *2 (E.D.N.Y. Jan. 28, 2011)
(“The standard governing leave to amend, flexible to begin with, is further liberalized for pro se
plaintiffs.”). Accordingly, plaintiff is granted leave to amend her complaint as to the claims
dismissed herein. Any such amendment must be filed within thirty (30) days of the date of this
Order, be clearly marked “Amended Complaint,” and contain the same case number, 11-cv5399.
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CONCLUSION
For the forgoing reasons, defendant’s request to strike the newspaper articles attached to
the complaint is GRANTED. Defendant’s motion to dismiss is DENIED as to plaintiff’s claims
for discriminatory treatment and a hostile work environment. Defendant’s motion is GRANTED
with respect to all other causes of action alleged in the complaint, with leave to re-plead these
claims within 30 days of the date of this Order. This matter is recommitted to Magistrate Judge
Viktor V. Pohorelsky for continued pretrial supervision.
The Clerk of Court is directed to transmit a copy of this Order to plaintiff pro se via U.S.
Mail.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
February 28, 2013
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
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