Lewis v. New York State Homes and Community Renewal

Filing 4

MEMORANDUM DECISION AND ORDER granting plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The complaint is dismissed, and plaintiff is granted leave to file an amended complaint within 20 days of the date of this order. The Court ce rtifies 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. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962).( Ordered by Judge Brian M. Cogan on 9/28/2015 ) c/m (Guzzi, Roseann) (Main Document 4 replaced on 9/28/2015 with corrections) (Guzzi, Roseann).

UNITED STATES DISTRICT COURT
C/M
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
:
MONA LEWIS,
: MEMORANDUM DECISION AND
Plaintiff,
: ORDER
:
- against : 15 Civ. 5478 (BMC)(RLM)
NEW YORK STATE HOMES AND
:
COMMUNITY RENEWAL,
:
:
Defendant.
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COGAN, District Judge.
Plaintiff pro se brings this action under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634. She essentially alleges that she has been treated unfairly by
being yelled at by the manager of her agency. Plaintiff’s request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 is granted. For the reasons stated below, the complaint is
dismissed, and plaintiff is granted leave to file an amended complaint within twenty (20) days of
the date of this Order.
BACKGROUND
Plaintiff has worked as a Housing and Community Specialist 1 grade 18 since 1988,
having begun working for defendant in 1984 in its Public Information Unit. In April 2012, her
manager, Mr. Bruce Falbo, inquired as to her age. She told him she would soon be 60, to which
he replied, “Oh, you will still be with us for a while [sic].” Three months later, Mr. Falbo and
plaintiff’s supervisor, Mr. Jean Ceus, advised her that she was being transferred to the “Foil
Unit” (presumably the Freedom of Information Law unit) to process subpoenas. She inquired as
to the reason for her transfer, and Mr. Falbo told her he thought she would do a better job than
the person who was there.

It does not appear from plaintiff’s complaint that she is complaining about the transfer.
She introduces the facts set forth above by stating, “[b]efore I get to my complaint,” and after
relating the facts of her transfer, her assignment to working space there, and her lack of training
to process subpoenas, she states “[n]ow the reason for my complaint.” Her administrative
complaint with the New York State Division of Human Rights pertains solely to the post-transfer
incident that she describes in her complaint before me.
That incident occurred about two years after her transfer when her supervisor, Ms. Stacey
Payton, gave her an additional assignment beyond her regular work and told her to give it
priority over her regular work. Ms. Payton then contradicted herself by giving plaintiff regular
work, and yelled at plaintiff when plaintiff tried to remind Ms. Payton that Ms. Payton had told
her not to take regular work. In response to being yelled at, plaintiff requested a meeting with
Mr. Falbo and a Deputy Commissioner.
In the meeting with Mr. Falbo, he yelled at plaintiff for refusing to do her assigned work,
and threatened to remove her from the unit if she did not follow instructions. Plaintiff responded
by requesting reassignment back to the Public Information Unit, but Mr. Falbo told her she was
not good enough for that unit.
The NYSDHR denied plaintiff’s complaint, finding that there was “no evidence to
support that age was a factor in Respondent’s treatment of the Complainant’s employment.” It
noted that she had never complained about age discrimination during her meetings with her
supervisor and Mr. Falbo before filing her administrative complaint, and that she had not
suffered any “job detriment” in connection with her employment. The EEOC subsequently
issued a right to sue letter, adopting the conclusion of the NYSDHR.

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STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court is required to 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.” It is axiomatic that pro se complaints are held to less stringent
standards than pleadings drafted by attorneys and the Court is required to read the plaintiff's pro
se complaints liberally and interpret them raising the strongest arguments they suggest. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007); Sealed Plaintiff v. Sealed
Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
At the pleadings stage of the proceeding, the Court must assume the truth of “all wellpleaded, 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, 129 S.Ct. 1937,
1949–50 (2009)), aff’d, __ U.S. __, 133 S. Ct. 1659 (2013). However, a complaint must plead
sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1974 (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, 129 S. Ct. at 1949.
The plausibility standard does not “require[ ] a complaint to include specific evidence
[or] factual allegations in addition to those required by [Federal] Rule [of Civil Procedure] 8.”
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010). Nevertheless, the plausibility
standard does impose some burden to assert factual allegations supporting a claim for relief. As
the Iqbal Court explained, it “does not require detailed factual allegations, but it demands more

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than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. at 678, 129 S.
Ct. at 1949 (internal quotation marks omitted).
DISCUSSION
The ADEA establishes 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 or employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). In order to establish a prima facie case of age discrimination in violation of the
ADEA, a plaintiff must show: (1) that she was within the protected age group (more than 40
years old); (2) that she was qualified for her position; (3) that she experienced adverse
employment action; and (4) that such action occurred under circumstances giving rise to an
inference of discrimination. See Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 107 (2d Cir.
2010). In addition, it is the plaintiff’s burden to establish that age was the “but-for” cause of the
employer’s adverse action, that is, that the adverse employment action would not have occurred
except for her age. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351
(2009). Although a plaintiff need not allege all of the elements of a prima facie claim in her
complaint, she must allege enough facts to show that such a claim is plausible. “[W]hile a
discrimination complaint need not allege facts establishing each element of a prima facie case of
discrimination to survive a motion to dismiss . . . it must at a minimum assert nonconclusory
factual matter sufficient to nudge [its] claims . . . across the line from conceivable to plausible to
proceed . . ..” EEOC v. Port Auth. of New York and New Jersey, 768 F.3d 247, 254 (2d Cir.
2014) (citations and quotations omitted).
I do not see a plausible age discrimination claim within plaintiff’s complaint or her
submissions to the NYSDHR. At most, she alleges that after Mr. Falbo asked her how old she

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was, and appeared satisfied with her answer, Mr. Falbo and Ms. Payson, more than two years
later, acted unreasonably towards plaintiff by yelling at her for no good reason. Being yelled at
unreasonably is not an adverse employment action. See Katz v. Beth Israel Medical Center, No.
95 Civ. 183, 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001) (“Being yelled at, receiving unfair
criticism, receiving unfavorable schedules or work assignments, and being told to retire or work
part time . . . do not rise to the level of adverse employment actions.”). Nor has plaintiff alleged
any facts showing circumstances giving rise to an inference of discrimination. The question as to
her age is the only thing to which plaintiff refers, and it is disconnected from the incident about
which she complains both temporally and topically.
Alternatively, plaintiff may be attempting to allege a hostile work environment claim
based on her age. But I do not see that as a plausible claim either. To state a claim for hostile
work environment in violation of the ADEA, the plaintiff must plausibly allege that the
workplace is “permeated with discriminatory intimidation, ridicule and insult that is sufficiently
pervasive to alter the conditions of the victim’s employment.” Kassner v. 2nd Ave. Delicatessen
Inc., 496 F.3d 229, 240 (2d Cir. 2007) (citing Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318
(2d Cir. 1999)). A single incident of yelling is hardly, if ever, sufficiently pervasive to create an
“environment” of hostility. Plaintiff’s description of this one incident certainly does not rise to
the level of a hostile work environment.
As a pro se litigant, plaintiff may be under the misimpression that because she is over 40,
her employer has an obligation to treat her nicely. The law does not require employers to treat
employees nicely, or even fairly. An employer is entitled to be unfair if that is the way it wishes
to conduct its employee relations. The only action that federal law prohibits is action that which,
as a threshold matter, is based on an employee’s age or other protected characteristic. See, e.g.,

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Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) (“Everyone can be characterized by sex,
race, ethnicity, [age] or (real or perceived) disability; and many bosses are harsh, unjust, and
rude. It is therefore important in hostile work environment cases to exclude from consideration
personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.”);
Sanchez–Vazquez v. Rochester City Sch. Dist., No. 11 Civ. 6590, 2012 WL 2856824, at *3
(W.D.N.Y. July 11, 2012) (“[E]mployment discrimination statutes do not establish a general
civility code for the workplace.”). Just because plaintiff is displeased with the way she is being
treated does not give her a right to sue in federal court.
CONCLUSION
In light of plaintiff’s pro se status, she is granted twenty (20) days leave to file an
amended complaint. See Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). Should plaintiff have a
basis for a claim of age discrimination, she should provide facts in support of such claim.
Plaintiff is directed that her 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, 127 S. Ct. at 1974.
The amended complaint must be captioned as an “Amended Complaint” and bear the
same docket number. No summons shall issue at this time and all further proceedings shall be
stayed for twenty (20) days or until further order of the Court. If plaintiff fails to amend her
complaint within twenty (20) days of the date this Order is entered on the docket, the Court shall
dismiss this case.

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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. See
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962).

SO ORDERED.

Digitally signed by Brian M.
Cogan
U.S.D.J.

Dated: Brooklyn, New York
September 28, 2015

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