McMahon v. Napolitano et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis and Dismissing certain individual defendants. For the reasons set forth in the attached Order, plaintiff's motion to proceed in forma pauperis is granted. Also as set for th in the within Order, plaintiff's claims against defendants W. Daniel Baldwin, Cynthia Covell, Teresa Halpin, James T. Madden, Rachelle Lewis, and Geraldine Munsayac are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). No summons sha ll issue as to these defendants. Plaintiff's complaint against the remaining defendant, Secretary Janet Napolitano, may proceed. The Clerk of the Court is directed to issue a summons for this defendant and the United States Marshals Service is directed to serve the complaint and this Order on this defendant without prepayment of fees. The case is also respectfully referred to the Honorable Robert M. Levy, United States Magistrate Judge, for pretrial supervision. The Court certifies pursua nt to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The clerk of court is also respectfully requested to serve a copy of the within Order on the pro se plaintiff and to note service of the same on the docket. Ordered by Judge Kiyo A. Matsumoto on 4/8/2013. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOYCE A. McMAHON,
Plaintiff,

ORDER
13-CV-1404 (KAM)(RML)

- against JANET NAPOLITANO, Secretary U.S.
Department of Homeland Security, et al.,
Defendants.
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MATSUMOTO, United States District Judge:
On March 13, 2013, pro se plaintiff Joyce A. McMahon filed this complaint alleging
employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 and the Age Discrimination and Employment Act (“ADEA”) of 1967, 29 U.S.C. §§ 621634.1 Plaintiff’s application to proceed in forma pauperis under 28 U.S.C. § 1915 is hereby
granted. Plaintiff’s claims against the six individual defendants she has named in the body of her
complaint are hereby dismissed.

Plaintiff’s claims against defendant Janet Napolitano shall

proceed as set forth below.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action
where it is satisfied that the action is “(i) 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.” However, a court must construe a pro se litigant’s pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights

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The Court notes that plaintiff has a pending employment discrimination action before this Court. See
McMahon v. Napolitano, No. 12-CV-5878 (KAM)(RML).

violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1,
537 F.3d 185, 191-93 (2d Cir. 2008).
DISCUSSION
Janet Napolitano, Secretary of the Department of Homeland Security, is properly named in
the caption of plaintiff’s complaint as a defendant to this action because she is the head of the
United States Department at which plaintiff was employed. Plaintiff also attaches a list to the form
complaint that names six individual defendants in addition to defendant Napolitano.
Title VII and the ADEA, under which plaintiff has brought this action, do not provide for
individual liability; rather, only the employer may be named. Patterson v. Cnty. of Oneida, 375
F.3d 206, 221 (2d Cir. 2004) (“[W]e note that individuals are not subject to liability under Title
VII.”) (internal quotation marks omitted); Cherry v. Toussaint, 50 F. App’x 476, 477 (2d Cir. 2002)
(“[T]he ADEA precludes individual liability.”); Rozenfeld v. Dep’t of Design and Const. of City of
New York, 875 F. Supp. 2d 189, 201 (S.D.N.Y. 2012) (noting that neither Title VII nor the ADEA
provides for individual liability); Garibaldi v. Anixter, Inc., 407 F. Supp. 2d 449, 451 (W.D.N.Y.
2006) (“[T]here is no individual liability under any of the federal anti-discrimination statutes,
including Title VII, the ADA, and the ADEA.”).
Alternatively, in the case of a federal agency or department, only the official Agency or
Department head may be named. 42 U.S.C. § 2000e-16(c); Boos v. Runyon, 201 F.3d 178, 183 (2d
Cir. 2000); Ellis v. U.S. Postal Svc., 784 F.2d 835, 838 (7th Cir. 1986) (holding that Title VII’s rule
that “the only proper defendant is the head of the agency” should also apply to actions under the
ADEA); Healy v. U.S. Postal Svc., 677 F. Supp. 1284, 1289 (E.D.N.Y. 1987) (“Since both [Title
VII and the ADEA] should be construed consistently, this court holds that the only proper party
defendant in a suit against the Postal Service under the ADEA is the Postmaster General of the
United States.”); cf. Bornholdt v. Brady, 869 F.2d 57, 65 (2d Cir. 1989) (noting that because ADEA
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§ 633 was patterned after Title VII’s provisions, “[w]e have analogized the ADEA to Title VII in
formulating burden-of-proof and order-of-proof standards for ADEA suits, and other circuits have
been guided by parallel provisions in Title VII in interpreting § 633a [with regard to the] proper
party defendant” (citing Ellis, 784 F.2d at 838)). Therefore, the court dismisses plaintiff’s claims
against W. Daniel Baldwin, Cynthia Covell, Teresa Halpin, James T. Madden, Rachelle Lewis, and
Geraldine Munsayac, the individual defendants she named in the complaint.

28 U.S.C. §

1915(e)(2)(B)(ii).
CONCLUSION
For the reasons discussed above, plaintiff’s claims against defendants W. Daniel Baldwin,
Cynthia Covell, Teresa Halpin, James T. Madden, Rachelle Lewis, and Geraldine Munsayac are
dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii). No summons shall issue as to these defendants.
Plaintiff’s complaint against the remaining defendant, Secretary Janet Napolitano, may
proceed. The Clerk of the Court is directed to issue a summons for this defendant and the United
States Marshals Service is directed to serve the complaint and this Order on this defendant without
prepayment of fees.
The case is referred to the Honorable Robert M. Levy, United States Magistrate Judge, for
pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order would not be taken in good faith and therefore in forma pauperis status is denied for
purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
__/s/________________________
Kiyo A. Matsumoto
United States District Judge

Dated: April 8, 2013
Brooklyn, New York

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