Alarcon v. Parks Recreation and Museums

Filing 8

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis and DISMISSING COMPLAINT WITH LEAVE TO AMEND: For the reasons stated in the attached Memorandum and Order, The complaint fails to state a claim under Title VII, the ADA or the ADEA - that is, any of the three federal statutes under which Plaintiff could have filed this action. However, in light of this Courts duty to liberally construe pro se complaints, Plaintiff is given thirty (30) days from the date of this Me morandum and Order to file an amended complaint. No summons shall issue at this time and all further proceedings shall be stayed for thirty (30) days or until further order of the Court. If Plaintiff fails to amend his complaint within thirty (30 ) days of the date this Order is entered on the docket, the Court shall dismiss this complaint for failure to state a claim on which relief may be granted and judgment shall enter. The Clerk of Court is respectfully requested to mail a copy of the Memorandum and Order to plaintiff pro se and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 8/16/2015. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
MICHAEL P. ALARCON,
Plaintiff,
MEMORANDUM & ORDER
15-CV-339 (RRM)(GRB)

- against PARKS, RECREATION & MUSEUMS,
Defendant.
X
ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff pro se Michael P. Alarcon commenced this action on January 15, 2015, against
his former employer. 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”).1 The Court grants Plaintiff’s request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) solely for the purpose of this Order and directs Plaintiff to
submit an amended complaint within 30 days of the date this Order is entered on the docket.
BACKGROUND
This is Plaintiff’s fifth employment discrimination action in this Court concerning his
employment with the Nassau County Parks Department (“Parks Department”). In 2006, he filed

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Plaintiff also filed a letter seeking this court’s disqualification on the basis of a lawsuit filed against the
undersigned as a result of Plaintiff’s dissatisfaction with the dismissal of a prior employment discrimination action.
(See Letter (Doc. No. 7); Alarcon v. Mauskopf, No. 10-cv-1695 (JBW)(JMA) (E.D.N.Y. April 8, 2010.) That
lawsuit was dismissed on the basis of absolute immunity. (See id. Mem. & Judgment (Doc. No. 6).) A judge is not
disqualified just because a litigant sues or threatens to sue him. United States v. Grismore, 564 F.2d 929, 933 (10th
Cir. 1977), cert. denied, 435 U.S. 954 (1978). See United States v. Whitesel, 543 F.2d 1176, 1181 (6th Cir. 1976),
cert. denied, 431 U.S. 967 (1977). Obviously a litigant should not be enabled to judge-shop merely by making
written attacks upon or filing a complaint against the assigned judge. United States v. Bray, 546 F.2d 851, 857–58
(10th Cir. 1976); Martin-Trigona, supra, at 1243. Plaintiff alleges no other grounds to suggest bias, prejudice, or
any other reason for disqualification, and this court knows of no such reasons.

an action against Defendant2 alleging that his working conditions as a seasonal or part-time park
worker were unsafe. His claims under Title VII, ADA, ADEA, 42 U.S.C. § 1983, and other
federal and state labor laws were dismissed for failure to state a claim.3 His next action, against
his union, CSEA Local 1000.830, was dismissed for failure to state a claim after the court
afforded Plaintiff an opportunity to amend his complaint. See Alarcon v. CSEA Local 1000.830,
No. 09-CV-1740 (DLI)(LB). Plaintiff’s next employment discrimination action against the
Parks Department, filed in 2012, was dismissed for failure to exhaust his administrative remedies
or allege facts in support of his claims. See Alarcon v. Nassau County Parks, No. 12-CV-5922
(RRM)(ETB). Plaintiff withdrew his most recent employment discrimination complaint against
the Parks Department. See Alarcon v. Nassau Cnty. Parks & Recreation Museums, No. 13-CV651 (RRM)(GRB).
BACKGROUND
Plaintiff initiated this action on January 15, 2015. The following facts are taken from the
complaint and the appended November 24, 2014 Equal Employment Opportunity Commission
(“EEOC”) Notice of Right to Sue (“EEOC Right-to-Sue letter”), the allegations of which are
presumed to be true for purposes of this Memorandum and Order.
The gravamen of Plaintiff’s lawsuit is that he was terminated on June 12, 2012 in
retaliation for “a complaint of difficulty breathing” at the “sewer plant building in bay park.”
(Compl. at 6.) He states he filed a “complaint Oct 29, 2012 Case # 10154896” because his
termination violated the “C.B.A. [collective bargaining agreement].” (Id.) He filed a charge

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The full name of the defendant is Nassau County, Department of Parks, Recreation and Museums. (See Compl.
(Doc. No. 1) at 7 (ECF Pagination).)
3
Though the defendant in that case stated that Plaintiff was employed by the Parks Department rather than the
Department of Public Works (“DPW”), as the Court previously stated, “Plaintiff’s claims as pled are equally
unavailing whether they are directed at Defendant DPW or the Parks Department.” See Alarcon v. Nassau County
Public Works, No. 06-CV-5187 (RRM)(ETB) (Doc. No. 31).

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with the EEOC regarding defendant’s alleged discriminatory conduct on September 13, 2014.
(Id.).
Given the paucity of relevant facts alleged, the precise nature of Plaintiff’s discrimination
claims is unclear. Plaintiff used a complaint form to file this action, and within it he
inconsistently refers to the bases for this action. For purposes of this Order, the Court presumes
that Plaintiff brings this action pursuant to Title VII, the ADA, and the ADEA because he
chooses all three federal statutes on the first page of the form complaint. (Id. at 1.) The only
reference to any type of discrimination in the statement of facts, however, is “retaliation for a
complaint of difficulty breathing” (id. at 6); he alleges no facts regarding his membership in a
protected class or circumstances giving rise to an inference of discrimination. Plaintiff merely
selects race and gender as the bases of discrimination and completes two portions of paragraph
seven of the complaint form identifying his age (“born in 1961 . . . more than 40 years old.”) and
disability (“obstructive lung disease”). (Id. at 3.) Pages four and five of the complaint deal
solely with the collective bargaining agreement and worker’s compensation benefits – they do
not refer in any way to a federal employment discrimination claim. (Id. at 4–5.)
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 presumed to be true, the same
presumption does not apply to legal conclusions. Id. In reviewing a pro se complaint, the Court
will hold it “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v.
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Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); Harris v. Mills, 582 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 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).
DISCUSSION
Plaintiff fails to state a claim for employment discrimination because he fails to allege
facts to support a claim under the ADA, ADEA, or Title VII.
To establish a prima facie discrimination case 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 without reasonable accommodation; and (4) plaintiff
suffered an adverse employment action because of his disability or perceived disability.”
Kinnery 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).
Similarly, establishing a prima facie claim of age discrimination under the ADEA
requires that a claimant demonstrate (1) he was within the protected age group i.e, over the age
of 40 at the time of the alleged discriminatory conduct, 29 U.S.C. § 623(a)(1); (2) he was
qualified for the position; (3) he was subject to an adverse employment action; and (4) the
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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).
Lastly, Title VII prohibits an employer from discriminating against any individual with
respect to “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). To
establish a prima facie case of Title VII discrimination, a plaintiff must show that: (1) he is a
member of a protected class, (2) was qualified for the position he held, and (3) suffered an
adverse employment action, (4) under circumstances giving rise to an inference of
discrimination. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir.
2012); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
To the extent Plaintiff may wish to raise an ADA claim, the fact that he had “difficulty
breathing” at some point during his employment with the Parks Department is not sufficient to
state a claim. Plaintiff has not established any of the elements of an ADA claim – he does not
alleged that he is covered by the ADA, that he suffers from a disability within the meaning of the
ADA, that he was qualified to perform his job, or that there was any connection between an
adverse employment action and his disability or perceived disability. Likewise, if he wishes to
allege a retaliation claim, he must set forth facts in support of it and cannot simply conclude that
his employer retaliated against him.
Plaintiff alleges no facts in support of any potential discrimination claims under Title VII
or the ADEA. He alleges no facts regarding his membership in a protected class, nor any
circumstances that could give rise to an inference of discrimination. See Ruston v. Town Bd. 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.”);
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Arista Records LLC v. Doe 3, 604 F.3d 110, 120–21 (2d Cir. 2010) (stating that 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).
The complaint, therefore, lacks “facial plausibility,” as Plaintiff has failed to plead
“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. Therefore, Plaintiff’s employment
discrimination claims are dismissed for failure to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii). Should he still wish to pursue an employment discrimination
claim, Plaintiff may submit an amended complaint within thirty (30) days of the date this Order
is entered on the docket and provide facts in support of his claim or claims. Ruston, 610 F.3d at
59; Arista Records LLC, 604 F.3d at 120–21.
CONCLUSION
The complaint fails to state a claim under Title VII, the ADA or the ADEA – that is, any
of the three federal statutes under which Plaintiff could have filed this action. However, in light
of this Court’s duty to liberally construe pro se complaints, Plaintiff is given thirty (30) days
from the date of this Memorandum and Order to file an amended complaint. Cruz v. Gomez, 202
F.3d 593 (2d Cir. 2000). Should Plaintiff have a basis for a claim of employment discrimination,
he should provide facts in support of such claim(s) and demonstrate that he has exhausted his
administrative remedies on this claim or other claims in his amended complaint. Plaintiff is
directed that his amended complaint must comply with Rule 8(a) of the Federal Rules of Civil
Procedure and it must “plead enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Plaintiff is advised that the amended complaint will completely
replace the complaint.
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The amended complaint must be captioned “Amended Complaint” and bear the same
docket number as this Order. No summons shall issue at this time and all further proceedings
shall be stayed for thirty (30) days or until further order of the Court.
If Plaintiff fails to amend his complaint within thirty (30) days of the date this Order is
entered on the docket, the Court shall dismiss this complaint for failure to state a claim on which
relief may be granted and judgment shall enter. If submitted, the amended complaint will be
reviewed for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B).
The Clerk of Court is respectfully requested to mail a copy of the Memorandum and
Order to plaintiff pro se 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.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
Roslynn R. Mauskopf
_______________________
ROSLYNN R. MAUSKOPF
United States District Judge

Dated: Brooklyn, New York
August 16, 2015

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