Barroso v. CUNY
MEMORANDUM AND ORDER granting 23 Motion to Dismiss: For the reasons stated in the attached Memorandum and Order, Defendants' motion to dismiss the amended complaint is granted.The Clerk of Court is directed to close this cas e in accordance with the accompanying Judgment, mail a copy of this Memorandum and Order and the Judgment to Barroso at the address the docket lists for him, and note the mailing on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith, and therefore, in forma pauperis status is denied for the purpose of any appeal. Ordered by Judge Roslynn R. Mauskopf on 9/22/2014. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
12-CV-625 (RRM) (JMA)
- against OFFICE OF GENERAL COUNSEL, VICE
CHANCELLOR OF LEGAL AFFAIRS, CUNY,
ROSLYNN R. MAUSKOPF, United States District Judge.
On February 6, 2012, plaintiff Fernando Barroso, proceeding pro se and in forma
pauperis, commenced this action against the City University of New York (“CUNY”) and
CUNY’s Vice Chancellor of Legal Affairs, in his official capacity (together, “defendants”),
alleging age discrimination under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq. (Compl. (Doc. No. 1). Currently before the Court is
defendants’ motion to dismiss Barroso’s amended complaint (Am. Compl. (Doc. No. 19))
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. Nos. 22–25.) For the
reasons that follow, defendants’ motion is granted.
Barroso, who has been a CUNY employee since 1992, is a licensed exterminator who
works at CUNY’s Hunter College (“Hunter”). On September 28, 2011, Barroso filed a charge
with the Equal Employment Opportunity Commission (“EEOC”), alleging that on July 20, 2011,
presumably in a job interview for a “laborer” position, “Peter Plevritis-Administrative
Superintendent” discriminated and retaliated against Barroso based on race and age, by asking
“questions . . . for extermination, not laborer, laborer is moving furniture among other things.”
(Decl. of Alissa Wright Supp. Defs.’ First Mot. to Dism. (Doc. No. 11) Ex. 1 (the “EEOC
Charge”).) The EEOC subsequently issued a Dismissal and Notice of Rights to Sue letter,
which Barroso received on November 7, 2011. (Compl. at 7.)
On February 6, 2012, Barroso filed his original complaint in the instant action, alleging
that CUNY discriminated against him on the basis of his age. Specifically, Barroso alleged that
since 2003, he had applied for several higher-paying, non-exterminator jobs but, despite his
qualifications, was not hired for any of them. Barroso asserted multiple, and sometimes
conflicting, reasons for his inability to obtain these jobs, alleging not only that certain individuals
at CUNY told him his age was a factor, but also that Hunter needed him to continue doing
extermination work, that it would be inconvenient for Hunter to give him a different job, that
Hunter had no incentive to promote him, that he failed to answer certain interview questions
correctly, and that CUNY’s job posts were disingenuous because CUNY already had someone in
mind for jobs prior to advertising them, perhaps due to favoritism or nepotism. (See Compl. at 5,
7; Pl.’s Mem. of L. Opp’n First Mot. to Dism. (“Pl. Orig. Br.”) (Doc. No. 13) at 4–5.) Barroso
also alleged, albeit not clearly, that he suffered unspecified retaliation after somebody made a
phone call to the New York Fire Department. (See Compl. at 6.) Barroso did not include the
claim concerning Plevritis that he had raised in his earlier EEOC Charge.
On August 9, 2013, the Court granted defendants’ motion to dismiss the original
complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Aug. 9, 2013 Order (Doc. No. 18).)
The Court found that the Eleventh Amendment barred all of Barroso’s claims, and in any event,
the claims were unexhausted and, therefore, procedurally barred. (Id. at 4–8.) Further, although
Barroso did not raise his one exhausted claim in his original complaint, the Court noted that this
claim would fail under Rule 12(b)(6) in any event because Barroso described neither
discriminatory conduct nor a nexus between any protected conduct and any adverse employment
action. (Id. at 9–10.) Because of Barroso’s pro se status, the Court granted him leave to file an
amended complaint alleging viable claims consistent with the Court’s Order. (Id. at 10.)
On November 7, 2013 Barroso filed an amended complaint, which contains the following
new allegations: (1) Hunter “practices favoritism and nepotism in its hiring practices” (Am.
Compl. ¶¶ 1–2); (2) “Management” at Hunter has given Barroso “misleading” information about
whether Hunter’s Central Office plays a role in hiring – specifically, while Associate Director of
Facilities Management Maria Holder told Barroso that the Central Office plays a role in hiring,
Director of Human Resources Serafina Dolan told Barroso that it does not (id. ¶ 7); and
(3) Barroso’s union delegate, Jose Sierra, told Barroso that the union could not assist him
because “‘Hunter does what it wants to do’” (id. ¶ 9). Barroso does not mention age or
discrimination in the amended complaint.
Standard of Review
A plaintiff must establish that the court has subject matter jurisdiction. See Fed. R. Civ.
P. 12(b)(1); 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”); Rene v. Citibank CA, 32 F. Supp. 2d 539, 541–42 (E.D.N.Y.
Jan. 11, 1999) (dismissing pro se complaint for lack of subject matter jurisdiction). Subject
matter jurisdiction exists in federal court only when the (1) complaint presents a federal question,
28 U.S.C. § 1331, or (2) plaintiff and defendant are of diverse citizenship and the amount in
controversy exceeds $75,000.00, id. § 1332. “[S]ubject-matter jurisdiction, because it involves
the court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535
U.S. 625, 630 (2002).
A plaintiff must also plead “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); see Fed. R. Civ. P. 12(b)(6). A
claim has “facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The determination of whether “a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
The Court construes a pro se plaintiff’s allegations liberally, to raise the strongest
arguments that they suggest. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006). However, 28 U.S.C. § 1915(e)(2)(B) requires a court to dismiss an in forma pauperis
action that (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted,
or (3) seeks monetary relief against a defendant immune from such relief. A plaintiff’s pro se
status “does not exempt a party from compliance with relevant rules of procedural and
substantive law.” Rene, 32 F. Supp. 2d at 541 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
The Amended Complaint Must Be Dismissed
The amended complaint suffers from the same infirmities as the original complaint and
must, therefore, be dismissed. As the Court explained in the August 9, 2013 Order, the
sovereign immunity protections of the Eleventh Amendment bar Barroso’s claims. (See Aug. 9,
2013 Order at 4–7 (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54–56 (1996);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97–100 (1984); McGinty v. State of
New York, 251 F.3d 84, 95 (2d Cir. 2001); Clissuras v. City Univ. of New York, 359 F.3d 79, 81
& n. 2 (2d Cir. 2004); Sacay v. Research Found. of City Univ. of New York, 193 F. Supp. 2d 611,
625 (E.D.N.Y. 2002); Schwartz v. York College, No. 06 CV 6754, 2009 WL 3259379, at *2 n.8
(E.D.N.Y. Mar. 31, 2009); Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir.
1999); Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988)). In fact, Barroso does not contest this;
rather, he complains that defendants are “hid[ing] behind the Eleventh Amendment.” (Pl.’s
Mem. of L. Opp’n Second Mot. to Dism. (“Opp’n Br.”) (Doc. No. 22) at 3).) Accordingly, for
the reasons the Court explained in the August 9, 2013 Order, Barroso’s claims must be
dismissed, pursuant to Fed. R. Civ. P. 12(b)(1), as barred by the Eleventh Amendment.
Moreover, the amended complaint, like the original complaint, also fails because
Barroso’s allegations are unexhausted and fail to state a claim. As noted above, the only claim
Barroso raised in his EEOC Charge concerned an alleged interview with Plevritis. Barroso’s
allegations in the amended complaint are neither part of that EEOC Charge nor reasonably
related to it. (See Aug. 9, 2013 Order at 7–8 (citing Legnani v. Alitalia Linee Aeree Italiane,
S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d
229, 237–38 (2d Cir. 2007); Amtrak v. Morgan, 536 U.S. 101, 113 (2002); Williams v. NYC
Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam); see Guerrero v. FJC Sec. Servs.
Inc., No. 10 CV 9027, 2012 WL 2053535, at *5 (S.D.N.Y. June 5, 2012)). Barroso does not
make any allegations in the amended complaint that overcome this procedural bar. Apparently
aware of this deficiency, Barroso makes a vague assertion in his opposition papers that a pattern
of discrimination “is more fully discernible when viewed over the course of the Plaintiff’s entire
career,” and argues that even if his claims are time-barred, this “does not mitigate the fact that
the Defendant discriminated against him.” (Opp’n Br. at 2.) This response reiterates Barroso’s
belief that defendants subjected him to a pattern of discrimination but does not address his failure
to exhaust the claims, demonstrate that he could still timely raise any of the claims before the
EEOC, or establish that any of his claims is reasonably related to the claim in the EEOC Charge.
Accordingly, the claims in the amended complaint are procedurally barred.
Finally, even if the new allegations in the amended complaint were not otherwise barred,
Barroso fails to state a claim for relief. To state a claim for age discrimination in violation of the
ADEA, a plaintiff must allege that (1) he was within the protected age group, (2) he was
qualified for the position, (3) he was subject to an adverse employment action, and (4) the action
occurred under circumstances giving rise to an inference of discrimination. Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 106–07 (2d Cir. 2010). “A plaintiff sustains an adverse
employment action if he . . . endures a materially adverse change in the terms and conditions of
employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)
(internal quotation marks and citations omitted). The change in working conditions must be
“more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. Such a
change “might be indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.” Id.
Barroso does not even mention age, discrimination, or the ADEA in his amended
complaint. Even when coupled with his original complaint, and even when all allegations are
taken as true and construed to raise the strongest possible arguments, Barroso’s amended
complaint does not state facts to support a reasonable inference that CUNY subjected him to an
adverse employment action because of his age or some other protected characteristic. See Iqbal,
556 U.S. at 678; see also, Fleming v. Doe, No. 07 CV 5428, 2008 WL 141930, at *1 (E.D.N.Y.
Jan. 14, 2008) (“[B]ecause plaintiff is proceeding pro se, the court must liberally construe his
pleadings, and must interpret his complaint to raise the strongest arguments it suggests.”)
Barroso’s first new allegation – that Hunter practices favoritism and nepotism in its
hiring practices – is a conclusory characterization devoid of any details or context to support an
inference of unlawful discrimination. See Tappe v. Alliance Capital Mgmt. L.P., 177 F. Supp. 2d
176, 185 n.9 (S.D.N.Y. 2001) (“An employer can fire an employee for any reason as long as the
reason is non-discriminatory even if based on reasons that are ‘unbecoming or small-minded,
such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or
personal hostility.’”) (quoting Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997)).
Barroso’s second new allegation – that he received conflicting information concerning whether
Hunter’s Central Office plays a role in hiring – does not state that Barroso suffered an adverse
employment action or plead “any facts sufficient to create a reasonable inference that age
discrimination was a determining factor” in his receiving this conflicting information. Chacko v.
Woodhull Med. Ctr., No. 13 CV 289, 2013 WL 527688, at *2 (E.D.N.Y. Feb. 11, 2013)
(dismissing complaint for failure to state claim); see Ongsiako v. City of New York, 199 F. Supp.
2d 180, 186 (S.D.N.Y. 2002) (“While there is no bright-line rule as to what constitutes an
adverse employment action, the Second Circuit emphasizes that ‘not every unpleasant matter
short of [discharge or demotion] creates a cause of action.’”) (quoting Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 466 (2d Cir.1997)). Finally, Barroso’s third new allegation – that the
union delegate told him the union could not assist him because “‘Hunter does what it wants to
do’” – conveys the union delegate’s proffered explanation for failing to assist Barroso but no
facts concerning Hunter’s conduct. (Id. ¶ 9.)1 In light of these deficiencies, Barroso fails to state
a claim in the amended complaint.
Barroso, moreover, does not name the union as a defendant or allege that the union breached its duty of fair
representation. See, e.g., Velasquez v. Metro Fuel Oil Corp., No. 12 CV 1548, 2014 WL 1343128, at *9 (E.D.N.Y.
Mar. 31, 2014) (“In order to establish a violation of . . . the ADEA by a labor organization, a plaintiff would have to
show, at a minimum, that the union breached its duty of fair representation and that its actions were motivated by
discriminatory animus.”) (internal quotation marks and alterations omitted).
For all the foregoing reasons, the amended complaint cannot withstand defendants’
motion to dismiss.
Defendants’ motion to dismiss the amended complaint is granted.
The Clerk of Court is directed to close this case in accordance with the accompanying
Judgment, mail a copy of this Memorandum and Order and the Judgment to Barroso at the
address the docket lists for him, and note the mailing on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith, and therefore, in forma pauperis status is denied for the purpose of any appeal.
See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Roslynn R. Mauskopf
Dated: Brooklyn, New York
September 22, 2014
ROSLYNN R. MAUSKOPF
United States District Judge
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