Auguste v. Homes for the Homeless et al
MEMORANDUM DECISION AND ORDER: The Court grants Plaintiff's 2 Motion for Leave to Proceed in forma pauperis, but dismisses the complaint with leave to amend within 20 days. So Ordered by Judge Brian M. Cogan on 8/31/2016. (c/m) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JEAN CLAUDE AUGUSTE,
16 Civ. 4776 (BMC)(LB)
- against HOMES FOR THE HOMELESS; UNITED
SERVICE WORKER’S UNION,
COGAN, United States District Judge:
Plaintiff, proceeding pro se, commenced this action against his employer, Homes for the
Homeless, and his union. The Court grants plaintiff’s request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) but dismisses the complaint with leave to amend within 20 days.
The following facts are taken from the complaint and the appended June 10, 2016 1 Equal
Employment Opportunity Commission (“EEOC”) Notice of Right to Sue (“EEOC Right-to-Sue
letter”), the allegations of which are assumed to be true for purposes of this Memorandum and
Plaintiff was employed at Homes for the Homeless as a porter. His complaint is largely
incomprehensible and, to the degree it is understandable, only contains allegations regarding
disagreements over his work performance and assignments. He describes an incident in 2009
where shoveling snow and mopping made him feel unwell and he went to the doctor; as well as
an undated incident where he was sent back and forth between his employer’s locations because,
The date on the letter is a very faint date stamp which seems to read June 10, 2016. For purposes of this order, the
Court assumes it states: June 10, 2016, making the filing timely.
plaintiff alleges, defendant was trying to find a reason to fire him. There is no reference to any
type of discrimination in the statement of facts. Nor has plaintiff alleged any facts regarding his
membership in a protected class or circumstances giving rise to an inference of discrimination
Against his union, he concludes that it “discriminated” against him because three other
porters still work, but he was laid off. He does not allege any circumstances giving rise to an
inference of discrimination or that his termination was based on his membership in a protected
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.” See 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 plaintiff’s pleadings should be held “to less stringent standards than formal pleadings drafted
by lawyers.” See Erickson v. Pardus, 551 U.S. 89 (2007). 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. 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. §
Plaintiff may be suffering from a misunderstanding of his rights under federal law. He
has no right under federal law to be treated fairly in the workplace. His employer is free to treat
him unfairly, unreasonably, and unwisely. This Court does not supply a grievance process
whereby an employee can complain because he would like to be treated better. The only thing
that federal law prohibits is discrimination against plaintiff on the basis of immutable
characteristics, such as his race, his national origin, his gender, his age, or, additionally, his
Because of this, although the pleading threshold is low, plaintiff has not stated a claim
under any conceivable federal statute. Plaintiff filed a charge with the EEOC, received an EEOC
Right-to-Sue letter, and checked each of the three types of federal employment discrimination
actions offered in the form employment discrimination complaint, that is Title VII, Age
Discrimination, and the Americans with Disabilities Act, but he has not alleged any facts to
support any federal employment discrimination claim, nor selected from the list on the form
complaint any basis on which defendant discriminated against him, e.g., color, race, or age. The
complaint is devoid of facts regarding his membership in a protected class or circumstances
giving rise to an inference of discrimination. Arista Records LLC v. Doe 3, 604 F.3d 110, 12021 (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
The complaint does not have “facial plausibility” because 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 complaint is dismissed for failure to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii).
Should he wish to pursue such an employment discrimination claim against his employer,
plaintiff may submit an amended complaint and provide facts in support of his claim or claims
within 20 days. Arista Records LLC, 604 F.3d at 120-21. To aid him in this task, and to
provide guidance on what information is needed in order to proceed on an employment
discrimination claim, the Clerk of Court is asked to provide a copy of an employment
discrimination form complaint to plaintiff with this Order.
Plaintiff has also named his union as a defendant in his employment discrimination
complaint. The sum total of his allegations against the United Service Workers Union, however,
is that it “did . . . nothing to help me” and “they discriminated against me; that the other three
porters “still work” but he was laid off. Plaintiff does not provide a right to sue letter against this
defendant and the complaint is devoid of facts regarding his membership in a protected class or
circumstances giving rise to an inference of discrimination. Arista Records LLC v. Doe 3, 604
F.3d at 120-21. Thus, the complaint against United Service Workers Local Union 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 have a claim against his union under federal discrimination laws or for a
violation of its duty of fair representation he may file an amended complaint within 20 days.
The complaint is dismissed for failure to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff is given 20 days leave to file an amended complaint.
Should plaintiff have a basis for a claim of employment discrimination or a violation of the duty
of fair representation, he should provide facts in support of such claim(s). In addition to the
EEOC Right-to-Sue letter, plaintiff may include the charge he filed with the EEOC regarding
defendants’ allegedly discriminatory conduct. 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 his first
complaint. The amended complaint must be captioned as an “Amended Complaint” and bear the
same docket number as this Order. The Clerk of Court is respectfully requested to provide
plaintiff with an employment discrimination complaint form. No summons shall issue at this
time and all further proceedings shall be stayed for 20 days or until further order of the Court. If
plaintiff fails to amend his complaint within 20 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 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).
Digitally signed by Brian
Dated: Brooklyn, New York
August 31, 2016
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