Sacks v. Shop Rite Supermarkets

Filing 5

MEMORANDUM & ORDER: The Court grants Plaintiff's Motion for Leave to Proceed in forma pauperis 2 and denies Plaintiff's Motion for the appointment of pro bono counsel 3 . For the reasons set forth in the attached Order, Plaintiff 's ADEA claim is dismissed and Plaintiff is directed to file an affirmation within thirty (30) days of the date of this Order as to why his Title VII discrimination claims should not be dismissed as time-barred. 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 is denied for purpose of an appeal. Ordered by Judge Pamela K. Chen on 5/21/2015. (Attachments: # 1 Affidavit Form for Plaintiff's Affirmation) (Chiang, May)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AARON DAVID SACKS,
Plaintiff,

NOT FOR PUBLICATION

- against MEMORANDUM & ORDER
SHOPRITE SUPERMARKETS,
Case No. 15 CV 2469 (PKC)
Defendants.
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PAMELA K. CHEN, United States District Judge:
On April 28, 2015, Plaintiff Aaron David Sacks, appearing pro se, filed this action,
pursuant to Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment
Act of 1967, against his former employer, ShopRite Supermarkets. The Court grants plaintiff’s
request to proceed in forma pauperis. As set forth below, the complaint is dismissed in part, and
Plaintiff is directed to show by written affirmation, filed within 30 days from the date of this
order, why the Title VII claim should not be dismissed as time-barred.
BACKGROUND
Plaintiff alleges that he was “forced to resign” based on bigotry and anti-Semitism.
Plaintiff alleges that the discriminatory act occurred on May 30, 2011 and that he filed charges
with the Equal Employment Opportunity Commission (“EEOC”) on November 8, 2014.
(Compl. at 3-4; Pl. Unmarked Exhibit, EEOC Intake Questionnaire at ECF 28–31). 1 On April 3,
2015, the EEOC issued a “Dismissal and Notice of Rights” informing plaintiff that his charge
“was not timely filed with EEOC . . . .” (Compl., Pl. Unmarked Exhibit at ECF 45–46).

1

“ECF” refers to the pagination generated by the Court’s electronic docketing system and
not the document’s internal pagination.
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STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] 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). At the pleading stage of the proceeding, the Court must assume
the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v.
Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 678).
Although all allegations contained in the complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In addition, a pro se complaint is
“to be liberally construed,” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), and interpreted
“to raise the strongest arguments that they suggest,” Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996). The Court should generally not dismiss a pro se complaint without granting the
plaintiff leave to amend if a valid claim could be stated. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000).
However, under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), the Court is
required to dismiss a complaint, filed in forma pauperis, if the complaint “(i) is frivolous or
malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary
relief from a defendant who is immune from such relief.” An action is frivolous as a matter of
law when, inter alia, it is based on an “indisputably meritless legal theory”—that is, when it
“lacks an arguable basis in law . . . , or [when] a dispositive defense clearly exists on the face of
the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

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DISCUSSION
A.

Age Discrimination in Employment Act (“ADEA”)

The ADEA provides that it is “unlawful for an employer . . . to discharge any individual
or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). A plaintiff must be “at least 40 years of age” to receive the protections of the statute.
Id. at § 631(a). “It is well established that the burden-shifting framework set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to claims
brought under the ADEA.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014)
(citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)). In order to
establish a prima facie case of age discrimination, the plaintiff must show that he was (1) within
the protected age group; (2) qualified for the position; and (3) suffered a materially adverse
employment action; (4) under circumstances giving rise to an inference of discrimination.
Carlton v. Mystic Transp. Inc., 202 F.3d 129, 134 (2d Cir. 2000) (citations omitted). Here,
Plaintiff’s date of birth is September 24, 1980, which would have made him 30 years old at the
time the discriminatory conduct occurred. Because Plaintiff is not within the protected age
group, he fails to establish a prima facie case of age discrimination. Therefore, Plaintiff’s ADEA
claim is dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B).
B.

Title VII

Under Title VII, a New York plaintiff must file an administrative claim with the Equal
Employment Opportunity Commission (“EEOC”) within 300 days of the discriminatory conduct.
42 U.S.C. § 2000e-5(e)(1); see also Cetina v. Longworth, 583 F. App’x 1, 2 (2d Cir. 2014) cert.
denied sub nom. Cetina v. Westchester Cnty., 135 S. Ct. 1531 (2015); Hansen v. Danish Tourist

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Bd., 147 F. Supp. 2d 142, 154–55 (E.D.N.Y. 2001) (citation omitted)). This statutory
requirement effectively acts as a statute of limitations, and bars Title VII claims that are not
timely filed with the EEOC. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.
1996); see also Cherry v. City of New York, 381 F. App’x 57, 58 (2d Cir. 2010); see Hansen, 147
F. Supp. 2d at 155 (dismissing claims of discrimination as untimely where alleged acts occurred
more than 300 days before plaintiff filed EEOC charge). The statute of limitations begins to run
when each discriminatory act occurs. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113–14 (2002).
The Second Circuit has recognized that the time limits established by Title VII are
“subject to waiver, estoppel, and equitable tolling.” Downey v. Runyon, 160 F.3d 139, 145 (2d
Cir. 1998) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Equitable
tolling may, in exceptional circumstances, excuse a failure to follow the filing requirements of
Title VII. See Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985).
However, plaintiff has the burden to show that exceptional circumstances prevented him from
filing the EEOC discrimination charge in order to apply equitable tolling to the 300-day filing
period. See id.; see also Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
Here, Plaintiff alleges that the discriminatory conduct occurred on May 30, 2011 and that
he was forced to resign on June 2, 2011. (See Compl. at 3 and ¶ 5; Exhibit 2 at ECF 18).
According to Plaintiff, he filed a charge of discrimination with the EEOC on August 8, 2014.
(Compl. at 4). Therefore, Plaintiff’s discrimination charge filed on August 4, 2014, based on
discriminatory conduct that occurred on May 30, 2011 or June 2, 2011, is time-barred because

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the charge was filed well beyond the 300-day period. 2 However, while Plaintiff’s claims clearly
fall outside the timely filing requirement, this deficit does not necessarily preclude adjudication
of this suit if Plaintiff can show that he is entitled to equitable tolling. At present, Plaintiff
provides no basis for equitable tolling of the 300-day filing period. Thus, the Court directs
Plaintiff to show cause within 30 days of the date of this Order, by written affirmation, why his
Title VII claims should not be dismissed as time-barred.
CONCLUSION
Accordingly, Plaintiff’s complaint, filed in forma pauperis, is dismissed in part with
respect to his claim alleging age discrimination, for failure to state a claim. 28 U.S.C. §
1915(e)(2)(B).
As to Plaintiff’s Title VII claims, he is hereby directed to show cause why the complaint
should not be dismissed as time-barred by filing a written affirmation within 30 days of this
Order (form attached hereto). No summons shall issue at this time and all further proceedings
shall be stayed for 30 days or until Plaintiff has complied with this Order. If Plaintiff fails to
comply with this Order within the time allowed, the complaint shall be dismissed in its entirety
as set forth in this Order, and judgment shall enter. Plaintiff’s affirmation shall be reviewed for
substantive sufficiency pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiff’s request for pro bono counsel is denied without prejudice.
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 the purpose
of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

2

Even if the Court considers the 300-day period to run from his filing of a discrimination
charge with the New York State Division of Human Rights on November 16, 2012 (see Compl.
at ECF 11–14), the charge was still filed outside of the 300-day filing period.
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SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 21, 2015
Brooklyn, New York

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