Anderson v. Royal Realty Corp.

Filing 4

MEMORANDUM & ORDER: The Court grants Plaintiff's 2 request to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915. Plaintiff's Title VII claim based on race discrimination may proceed. However, Plainti ff is ordered to show cause within 30 days of the date of filing of this Order why his ADA claim for disability discrimination, ADEA claim for age discrimination, and Title VII claim for gender discrimination, should not be dismissed with prejudic e for failure (i) to exhaust administrative remedies, and (ii) to allege facts in support of the claim. To show cause, Plaintiff must file an affidavit with this docket number containing facts in support of the claim and proof that he has exhauste d his administrative remedies for each claim that he wishes to allege. The Court has attached an affidavit form that Plaintiff may use in preparing his response. No summons shall issue at this time and all further proceedings shall be stayed unt il Plaintiff has complied with this Order. If Plaintiff fails to file an affidavit as directed within 30 days, the action shall be dismissed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore IFP status is denied for the purpose of any appeal. SO ORDERED by Judge Margo K. Brodie, on 12/8/2014. C/mailed. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------KEVIN ANDERSON,
Plaintiff,

MEMORANDUM &ORDER
14-CV-6797 (MKB)

v.
ROYAL REALTY CORP., d/b/a
ONE BRYANT PARK,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Kevin Anderson, proceeding pro se, commenced the above-captioned action on
November 18, 2014, against Defendant Royal Realty Corporation, doing business as One Bryant
Park. Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000 et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-34 (“ADEA”) and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et
seq. ( “ADA”). The Court grants Plaintiff’s request to proceed in forma pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915. For the reasons stated below, Plaintiff is ordered to show cause by
written affidavit within 30 days from the date of filing of this Order why the Court should not
dismiss his ADA and ADEA claims and his Title VII claim alleging discrimination on the basis
of his gender. Plaintiff’s Title VII claim alleging discrimination on the basis of race may
proceed.
I. Background
The following facts are taken from the Complaint and the attached Equal Employment
Opportunity Commission (“EEOC”) Notice of Right to Sue (“Right-to-Sue letter”) and Intake

Questionnaire (“EEOC Charge”). Plaintiff was employed as a porter by Defendant, a cleaning
company, from July 2000 until December 27, 2012. (Docket Entry No. 1 at 8.) Plaintiff claims
that he was subject to discriminatory treatment, including failure to promote, retaliation, and
termination, beginning in 2010. (Id. at 3.) Plaintiff was terminated on December 27, 2012. (Id.
at 9.)
On March 12, 2013, Plaintiff filed an EEOC Charge against Defendant alleging race
discrimination and retaliation. (Id. at 9.) Plaintiff alleged that he was the “only AfricanAmerican on this job that such extreme action was take[n] that lead to my termination.” (Id.)
While the EEOC Charge is not clear as to why Plaintiff was terminated, Plaintiff alleges that
other employees of other races were not terminated for “numerous incidents,” including one
“incident that was caught on tape.” (Id.) On October 31, 2014, the EEOC issued Plaintiff a
Right-to-Sue letter upon his request because more than 180 days had passed since the filing of
the charge and no action had been taken by the EEOC. (Id. at 6.)
On November 18, 2014, Plaintiff initiated this action. The precise nature of Plaintiff’s
discrimination claims is unclear. Plaintiff filed his Complaint using a complaint form, and
inconsistently refers to the basis for this action.1 For the purposes of this Order, the Court
presumes that Plaintiff brings this action pursuant to Title VII, the ADA and the ADEA, because
Plaintiff refers to each of the three statutes in the narrative portion of his Complaint. (Id. at 4.)
Plaintiff complains that Defendant terminated him, failed to promote him and retaliated against

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On the first page, the form prompts Plaintiff with “[t]his action is brought for
discrimination in employment pursuant to (check only those that apply)[.]” (Docket Entry No. 1,
at 1.) Plaintiff checked Title VII and the ADA. (Id.) On the third page, when prompted to list
that “Defendant(s) discriminated against me based on my:” Plaintiff included his demographic
information including his race, color, gender, national origin, and age. (Id. at 3.) In the narrative
section on the fourth page of the form, Plaintiff notes he was “discriminated against because of
[his] race,” under Title VII. (Id. at 4.) Also on page 4, Plaintiff cites the ADEA and ADA. (Id.)
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him. (Id. at 3.) He alleges that he “was discriminated against because of [his] race.” (Id. at 4.)
While Plaintiff does not provide any facts in support of any other basis for discrimination, he
completes portions of paragraph seven of the complaint form identifying his race (“African
American”), color (“Black”), gender (“Male”), national origin (“U.S.A.”) and age (“born in 1962
. . . more than 40 years old.”). (Id. at 3.)
II. Discussion
a. Standard of review
A complaint must 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). “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). Although all allegations contained in the complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Id. In reviewing a pro se complaint, the court must be
mindful that the Plaintiff’s pleadings should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the
court “remain[s] obligated to construe a pro se complaint liberally”). If a liberal reading of the
complaint “gives any indication that a valid claim might be stated,” the Court must grant leave to
amend the Complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Nevertheless,
the Court is required to dismiss sua sponte an in forma pauperis action, if the Court determines it
“(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); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

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b. Plaintiff fails to state an ADA or ADEA claim
Plaintiff fails to state a claim for age discrimination or discrimination based upon
disability for two reasons. First, Plaintiff has not administratively exhausted either claim, and
second, he fails to allege sufficient facts to support these claims.
i. Failure to Exhaust
Under both the ADA and the ADEA, a claimant may bring suit in federal court only if he
has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See Legnani v.
Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001) (“Exhaustion of
administrative remedies through the EEOC is ‘an essential element’ of the Title VII and ADEA
statutory schemes and, as such, a precondition to bringing such claims in federal court.”); Stalter
v. Board of Co-op. Educ. Servs. of Rockland Cnty., 235 F. Supp. 2d 323, 332 (S.D.N.Y. 2002)
(“Before bringing a claim under the ADA, a plaintiff is required to file a timely EEOC charge.”
(citing Harris v. City of New York, 186 F.3d 243, 247 (2d.Cir. 1999))). However, “claims that
were not asserted before the EEOC may be pursued in a subsequent federal court action if they
are ‘reasonably related’ to those that were filed with the agency.” Legnani, 274 F.3d at 686
(quoting Shah v. N.Y. State Dep’t of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999)). “Reasonably
related” claims are recognized in three situations: (1) the alleged discriminatory conduct “would
fall within the ‘scope of the EEOC investigation which can reasonably be expected to grow out
of the charge of discrimination;’” (2) the claim is one of “retaliation by an employer against an
employee for filing an EEOC charge;” and (3) the plaintiff “alleges further incidents of
discrimination carried out in precisely the same manner alleged in the EEOC charge.” Terry v.
Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quoting Butts v. City of N.Y. Dep’t of Hous. Pres. &
Dev., 990 F.2d 1397, 1402–03 (2d Cir. 1993) (superseded on other grounds)).

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The Complaint, as currently filed, and the attached EEOC Charge, demonstrate that
Plaintiff has not filed a charge with the EEOC or obtained a right-to-sue letter concerning his
allegations of discrimination on the basis of his age or disability. Furthermore, such claims do
not appear, on their face, to fit any of the three situations in which the Court could find they are
“reasonably related” to the race discrimination claim Plaintiff raised in the EEOC Charge.
Plaintiff has not demonstrated that he has exhausted his administrative remedies under these
statutes, and therefore fails to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii); Morales v. City of N.Y. Dep’t of Juvenile Justice, No. 10-CV-829, 2012 WL
180879, at *3 (S.D.N.Y. Jan. 23, 2012) (“Exhaustion of administrative remedies . . . is a
requirement under Title VII, the ADA, and the ADEA, and claims that were not raised in the
administrative proceeding . . . are barred.” ); Terry, 336 F.3d at 151 (ADEA); Szuszkiewicz v.
JPMorgan Chase Bank, 12 F. Supp. 3d 330, 338 (E.D.N.Y. 2014) (ADA).
ii. Failure to State a Claim
Even if Plaintiff’s claims for age and disability discrimination were not procedurally
barred, they would nevertheless be dismissed because Plaintiff has not stated a claim for age or
disability discrimination. To establish a prima facie claim of age discrimination under the
ADEA, a plaintiff must demonstrate 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 adverse
action occurred under “circumstances giving rise to an inference of discrimination.” See Roge v.
NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Similarly, to establish a prima facie case
of discrimination under the ADA, a plaintiff must allege that “(1) the defendant is covered by the
ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning
of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or

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without reasonable accommodation; and (4) plaintiff suffered an adverse employment action
because of his disability or perceived disability.” Kinneary v. City of New York, 601 F.3d 151,
155–56 (2d Cir. 2010) (citations omitted); see also Brady v. Wal Mart Stores, Inc., 531 F.3d 127,
134 (2d Cir. 2008) (outlining disability prima facie test).
Plaintiff fails to allege any facts in support of a claim of age or disability discrimination.
See Ruston v. Town Board of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“Under Iqbal, factual
allegations must be sufficient to support necessary legal conclusions” and must “plausibly
suggest an entitlement to relief”); Arista Records LLC v. Doe 3, 604 F.3d 110, 120–21 (2d Cir.
2010) (although Twombly and Iqbal do not impose a heightened pleading standard in
employment discrimination cases, a plaintiff must still plead enough facts to make his claim
plausible). Such a failure provides a separate basis for dismissal of Plaintiff’s ADA and ADEA
claims.
Plaintiff’s ADA and ADEA claims are dismissed without prejudice.2 Should Plaintiff
wish to pursue an ADA or ADEA claim, he should inform the Court in his affidavit and provide
facts in support of age and/or disability discrimination and demonstrate that he has exhausted his
administrative remedies on these claims.

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Plaintiff cannot now exhaust his administrative remedies for his ADA and ADEA
claims. An employee alleging discrimination under the ADA or ADEA in New York must file
his administrative claim no later than 300 days after she experienced discrimination. See Cherry
v. City of New York, 381 F. App’x 57, 58 (2d Cir. 2010) (“A litigant must have filed a timely
charge . . . with the [EEOC] and corresponding state agencies as a condition precedent to the
filing of an action in federal court pursuant to the [ADEA], the [ADA] or Title VII of the Civil
Rights Act. . . . In New York . . . the statute of limitations for filing a claim with the EEOC is
300 days.”). It is too late for Plaintiff to pursue his unexhausted claims because he was
terminated on December 27, 2012, well beyond 300 days ago. (Compl. 9.) Therefore, if
Plaintiff fails to show cause why his claims should not be dismissed, any unexhausted claims
against Defendant will be dismissed with prejudice.
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c. Plaintiff fails to state a Title VII gender discrimination claim
Similarly, Plaintiff fails to allege any facts in support of a gender discrimination claim
under Title VII, and has not shown that he has exhausted his administrative remedies on this
claim. See Legnani, 274 F.3d at 686 (“Exhaustion of administrative remedies through the EEOC
is “an essential element” of the Title VII . . . statutory scheme[] and, as such, a precondition to
bringing such claims in federal court.”); Hewitt v. N.Y.C. Dep’t of Health & Mental Hygiene, 535
F. App’x 44, 45 (2d Cir. 2013) (affirming district court finding that plaintiff “failed to
administratively exhaust her Title VII retaliation claim by failing to include that claim in her
administrative complaint”); Canty v. Wackenhut Corr. Corp., 255 F. Supp. 2d 113, 117
(E.D.N.Y. 2003) (“[W]hile the complaint alleges that a grievance was filed with the EEOC, it
does not state that Canty obtained a right-to-sue letter. Thus, she has not demonstrated that she
has exhausted her administrative remedies.”). Thus, Plaintiff’s Title VII claim based on gender
discrimination is dismissed for failure to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii). Should Plaintiff wish to pursue such a claim, he should inform the Court in
his affidavit, provide facts in support of a gender discrimination claim, and demonstrate that he
has exhausted his administrative remedies on this claim. 42 U.S.C. § 2000e-5(e)(1); McPherson
v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 213–14 (2d Cir. 2006).
III. Conclusion
Plaintiff’s Title VII claim based on race discrimination may proceed. However, Plaintiff
is ordered to show cause within thirty (30) days of the date of filing of this Order why his ADA
claim for disability discrimination, ADEA claim for age discrimination, and Title VII claim for
gender discrimination, should not be dismissed with prejudice for failure (i) to exhaust
administrative remedies, and (ii) to allege facts in support of the claim. To show cause, Plaintiff

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must file an affidavit with this docket number containing facts in support of the claim and proof
that he has exhausted his administrative remedies for each claim that he wishes to allege. The
Court has attached an affidavit form that Plaintiff may use in preparing his response. Plaintiff’s
response will be reviewed for compliance with this Order and 28 U.S.C. § 1915(e)(2)(B).
If Plaintiff fails to respond to this Order within thirty (30) days, only his race
discrimination claim under Title VII will proceed under this docket number and the Court will
direct service on Defendant only as to Plaintiff’s Title VII race discrimination claim. In other
words, if Plaintiff does nothing, the Court will direct service on Defendant as to Plaintiff’s Title
VII race discrimination claim when Plaintiff’s time to show cause expires. Plaintiff’s other
claims will be dismissed with prejudice.
No summons shall issue at this time and all further proceedings shall be stayed until
Plaintiff has complied with this Order. If Plaintiff fails to file an affidavit as directed within 30
days, the action shall be dismissed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore IFP status is denied for the purpose of
any appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: December 8, 2014
Brooklyn, New York

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------KEVIN ANDERSON,
Plaintiff,

PLAINTIFF’S AFFIRMATION
14-CV-6797 (MKB)

v.
ROYAL REALTY CORP., DBA,
ONE BRYANT PARK,
Defendant.
--------------------------------------------------------------STATE OF NEW YORK
COUNTY OF __________

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I, Kevin Anderson, make the following affirmation under the penalties of perjury:
1.

I am the plaintiff in this action and I respectfully submit this affirmation in response to

the Court’s order dated _____________, 2014 directing me to show cause why the Court should
not dismiss my ADA and ADEA claims and my Title VII claim of gender discrimination. These
claim(s) should not be dismissed because ___________________________________________
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[YOU MAY ATTACH ADDITIONAL

PAGES, IF NECESSARY]
2.

In view of the foregoing, it is respectfully submitted that my claims alleging

__________________________________________ should be permitted to proceed.
Dated: ______________

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Signature
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Address
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City, State & ZIP