Kerr v. American Airlines Inc.

Filing 5

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND BY OCTOBER 6, 2016 -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, pro se plaintiff is granted in forma pauperis ("IFP") statu s for purposes of this Order only and the complaint is dismissed without prejudice. Plaintiff is granted leave to file an amended complaint NO LATER THAN OOCTOBER 6, 2016, that is in compliance with the Attached Memorandum and Order. Plaintiff is ad vised further that the amended complaint will completely replace the original complaint and must be captioned, Amended Complaint. It also must bear the same docket number as this Order. For the convenience of pro se Plaintiff, Instructions on How t o Amend a Complaint are attached. If Plaintiff fails to comply with this Order by October 6, 2016, this action will be dismissed with prejudice. No summons shall issue at this time and all further proceedings shall be stayed until October 6, 2016. 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 purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk o f the Court is directed to mail a copy of this Electronic Order, and the Attached Memorandum and Order and Instructions on How to Amend a Complaint to pro se plaintiff. Closure of this case is held in abeyance pending plaintiff's decision as to whether he will amend the complaint. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/6/2016. (Attachments: # 1 Appendix) (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TREVOR A. KERR, pro se,
:
:
Plaintiff,
:
:
-against:
:
AMERICAN AIRLINES, INC.,
:
:
Defendant.
:
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DORA L. IRIZARRY, Chief Judge:

MEMORANDUM & ORDER
15-CV-4850 (DLI)(ST)

Plaintiff Trevor A. Kerr (“Plaintiff”), proceeding pro se, brings this action against his
former employer, American Airlines, Inc. (“Defendant”), alleging that he was terminated in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).
Plaintiff’s request to proceed in forma pauperis is granted for the limited purpose of this Order.
For the reasons set forth below, the complaint is dismissed without prejudice and Plaintiff is
granted leave to amend the complaint NO LATER THAN October 6, 2016.
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 “(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). Pro se complaints are held to less stringent standards than
pleadings drafted by attorneys and the Court is required to construe the plaintiff’s pro se complaint
broadly and interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551
U.S. 89 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). At
the pleading stage of the proceeding, the Court must also 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to “state a claim to relief that is plausible on its
face.” Bell Atlantic 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.” Iqbal, 556 U.S. at 678 (citations omitted). The
plausibility standard does not impose an across the board, heightened fact pleading standard.
Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008). The plausibility standard does not “require[]
a complaint to include specific evidence [or] factual allegations in addition to those required by
Rule 8.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010). However, the
plausibility standard does impose some burden to make factual allegations supporting a claim for
relief.
BACKGROUND
On August 18, 2015, Plaintiff filed a complaint alleging that Defendant violated Title VII
by terminating his employment and creating unequal terms and conditions of his employment.
(Complaint (“Compl.”) at ¶ 4, Dkt. Entry No. 1.) Plaintiff identified race and color in the complaint
as the bases upon which Defendant discriminated against him but provides little else by way of
support of his discrimination claim. (Id. at ¶ 7.) In the facts section of the complaint, Plaintiff
stated that:
I was instructed by my manager Robert Needham to clock in Mr. Archibol. Both
Mr. Archibol and I was [sic] terminated. However [sic] Mr. Archibol was giving
[sic] his job back – Mr. Needham was only suspended [sic] but I was not giving
[sic] my job back.
(Id. at ¶ 8.) Plaintiff was terminated from his position on July 28, 2014, and filed a charge with
the Equal Employment Opportunity Commission (“EEOC”) on May 17, 2015. (Id. at ¶¶ 5, 10.)

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However, the EEOC determined that Plaintiff failed to file timely his claim of discrimination with
the agency and, therefore, dismissed his charge. (See EEOC Dismissal and Notice of Rights, Dkt.
Entry No. 1.)
DISCUSSION
I.

Timeliness
Under Title VII, a New York plaintiff is required to file a charge of discrimination with the

EEOC or state agency and receive a right to sue notice before bringing a claim in federal court.
42 U.S.C. § 2000e-5(e). The administrative claim must be filed with the EEOC or the state agency
within 300 days of the discriminatory conduct. 42 U.S. § 2000e-5(e); see 29 U.S.C. §§ 626(d),
633(b); Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007); Flaherty v.
Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000) (“To sustain a claim for unlawful
discrimination under Title VII and/or the ADEA, a plaintiff must file administrative charges with
the EEOC within 300 days of the alleged discriminatory acts.”) This statutory requirement
effectively acts as a statute of limitations. Title VII claims in federal court are barred by the failure
to file timely an administrative charge. Cherry v. City of New York, 381 F. App’x 57, 58 (2d Cir.
2010) (timely filing of a charge with the EEOC and corresponding state agencies is “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” and the “statute of limitations for filing a claim with the EEOC is 300
days” in New York). The statute of limitations for each discriminatory and retaliatory act begins
to run when that act occurs. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002).
Notwithstanding the EEOC’s dismissal of Plaintiff’s charges as untimely, Plaintiff may
still be allowed to adjudicate this action if he can show that he is entitled to equitable tolling. Long

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v. Frank, 22 F.3d 54, 58 (2d Cir. 1994) (holding that “[u]nder the doctrine of equitable tolling, a
complainant may be allowed to file his or her claim outside the applicable limitations period if,
because of some action on the defendant’s part, the complainant was unaware that the cause of
action existed”).
In order to apply equitable tolling to the 300-day filing period, Plaintiff has the burden of
demonstrating that exceptional circumstances prevented him from timely filing the discrimination
charges. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). “When determining whether equitable
tolling is applicable, a district court must consider whether the person seeking application of the
equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks
to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine
should apply.” Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80-81 (2d Cir.
2003) (internal quotation marks and citation omitted). Here, Plaintiff fails to suggest any reason
for the delay in filing his discrimination charge with the EEOC. Accordingly, Plaintiff may not
benefit from the doctrine of equitable tolling and the untimely filing of administrative charges with
the EEOC prohibits his filing of this Title VII action.
II.

Title VII Claims
Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, Plaintiff must provide a short

and plain statement of the claims against Defendant so that Defendant has adequate notice of the
claims against it. Iqbal, 556 U.S. at 678 (“[Rule 8] demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). Moreover, a plaintiff must provide facts sufficient
to allow each named defendant to have a fair understanding of what the plaintiff is complaining
about and to know whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555 (Rule

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8 requires that the plaintiff’s pleading “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests”) (citation omitted).
Title VII provides that “[i]t shall be an unlawful employment practice for an employer to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his 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).
Even under the most liberal interpretation of Plaintiff’s allegations, he provides no facts that could
possibly connect any adverse employment action to a protected status based on his race or color.
See Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (“The facts required by Iqbal
to be alleged in the complaint need not give plausible support to the ultimate question of whether
the adverse employment action was attributable to discrimination. They need only give plausible
support to a minimal inference of discriminatory motivation.”).
CONCLUSION
For the reasons set forth above, the complaint is dismissed without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B). In light of Plaintiff’s pro se status, he is granted leave to file an
amended complaint NO LATER THAN October 6, 2016. See Cruz v. Gomez, 202 F.3d 593 (2d
Cir. 2000) (vacating the judgment of the district court that dismissed a pro se plaintiff’s complaint
without affording the plaintiff an opportunity to amend his complaint to cure the deficiencies in
his due process claim). If Plaintiff files an amended complaint, he must allege any grounds he has
for tolling the 300-day period following the alleged discriminatory action, and must comply with
Rule 8(a) of the Federal Rules of Civil Procedure. Plaintiff must set forth the factual allegations
on which he bases his federal claims against Defendant and provide all relevant dates. Plaintiff

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also should include a copy of the charge he filed with the EEOC, or any other agency, with his
amended complaint, if available.
If Plaintiff elects to file an amended complaint, he must do so NO LATER THAN October
6, 2016. Plaintiff is advised further that the amended complaint will completely replace the
original complaint and must be captioned, “Amended Complaint.” It also must bear the same
docket number as this Memorandum and Order.

For the convenience of pro se Plaintiff,

“Instructions on How to Amend a Complaint” are attached. If Plaintiff fails to comply with this
Order by October 6, 2016, this action will be dismissed with prejudice. No summons shall issue
at this time and all further proceedings shall be stayed until October 6, 2016. 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 purpose of any appeal. Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
September 6, 2016
______________/s/
DORA L. IRIZARRY
Chief Judge

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