Miller v. New York City Department of Education
MEMORANDUM & ORDER: Plaintiff's 2 request to proceed in forma pauperis ("IFP") is granted. The Complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of Plaintiff's < i>pro se status, the Court grants Plaintiff 30 days to amend the Complaint in Order to state a claim under the ADA. Plaintiff is reminded that an amended complaint completely replaces the original Complaint. The amended complaint must be capti oned, "Amended Complaint," and shall bear the same docket number as this order. No summons shall issue at this time, and all further proceedings shall be stayed for 30 days. 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 an appeal. SO ORDERED by Judge Margo K. Brodie, on 10/12/2016. C/mailed. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JAMES E. MILLER,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
NEW YORK CITY DEPARTMENT OF
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On September 19, 2016, Plaintiff James E. Miller, proceeding pro se, commenced the
above-captioned action against the New York City Department of Education (“DOE”), alleging
employment discrimination in violation of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq. (“ADA”). (Compl., Docket Entry No. 1.) Plaintiff attaches to the
Complaint, a letter from the Equal Employment Opportunity Commission (“EEOC”) dated
August 10, 2016, notifying him of his right to sue in federal court. (Compl. 8.) 1 Plaintiff’s
request to proceed in forma pauperis (“IFP”) is granted. For the reasons discussed below, the
Court dismisses the Complaint. Plaintiff is directed to file an amended complaint within thirty
(30) days of the date of this Memorandum and Order.
Plaintiff, a former senior lunchroom helper for the DOE, initiated this action via a form
complaint for discrimination claims. (Compl. at 1–7.) Plaintiff asserts discrimination claims for
Because the Complaint is not consecutively paginated, all citations to pages of the Complaint
refer to the Electronic Document Filing System (“ECF”) pagination.
unlawful termination of employment, failure to accommodate a disability, retaliation and unpaid
wages under the ADA. (Id.) Plaintiff alleges that between June 19, 2015, and November 21,
2015 the DOE violated the ADA because it discriminated against Plaintiff based on his
disabilities — a “torn ligament” and “spinal damage.” (Id. at 4–5.) Plaintiff did not submit any
additional facts about these allegations in the space provided on the form complaint to describe
the facts of the case. (Id. at 5.) In the relief section, Plaintiff requests that the Court “have any
and all reason(s) for being terminated recorded as medical and not abandoned,” reinstate lost
wages, and “have future wages of retirement given.” (Id. at 6.) Plaintiff also attaches an EEOC
right-to-sue letter dated August 10, 2016. (Id. at 8.)
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 is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting 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.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97,
104–105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”). 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.
§ 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
ADA discrimination claim
To establish a prima facie case of discrimination under the ADA, a plaintiff must show
that “(1) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of
the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the
essential functions of the job with or without reasonable accommodation; (4) she suffered an
adverse employment action; and (5) the adverse action was imposed because of her disability.”
Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d. Cir. 2015); see also Dooley v. Jet Blue
Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015) (quoting Davis, 804 F.3d at 235) (outlining
the requirements of a prima facie case under the ADA).
Although a plaintiff need not specifically plead each and every element of a prima facie
case of discrimination to survive a motion to dismiss, the standard provides a framework for
analyzing whether the plaintiff’s claims for relief are plausible. See Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 84-87 (2d Cir. 2015). At the pleading stage, to state a claim of
employment discrimination under the ADA, a plaintiff must plausibly allege that (1) her
employer took an adverse action against her, and (2) the disability or perceived disability was a
“motivating factor” in the decision. Id. at 87; see also Giambattista v. Am. Airlines, Inc., 584
F. App’x 23, 25 (2d Cir. 2014) (“To state a claim for discrimination under the ADA, a plaintiff
must allege facts which plausibly suggest, inter alia, that she ‘suffered [an] adverse employment
action because of [her] disability.’” (quoting Giordano v. City of New York, 274 F.3d 740, 747
(2d Cir. 2001))). “A plaintiff suffers an adverse employment action when she experiences a
materially adverse change in the terms and conditions of employment.” Dechberry v. N.Y.C. Fire
Dep’t, 124 F. Supp. 3d 131, 147 (E.D.N.Y. 2015) (citation and internal quotation marks omitted).
Employment actions “deemed sufficiently disadvantageous to constitute an adverse employment
action include a termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008) (alteration and internal quotation marks omitted); see also
Fahrenkrug v. Verizon Servs. Corp., ---F. App’x ---, ---, 2016 WL 3448300, at *2 (2d Cir. June
17, 2016) (citing Beyer, 524 F.3d at 163) (explaining what conduct constitutes an adverse
The Complaint fails to state a claim under the ADA. Plaintiff provides no facts in
support of his claim that he was discriminated against in his employment. (See Compl. 5.) The
Court therefore denies Plaintiff’s claims, as they are unsupported by any factual allegations. See
Vega, 801 F.3d at 87 (“[A] plaintiff must allege that the employer took adverse action against her
at least in part for a discriminatory reason, and she may do so by alleging facts that directly show
discrimination or facts that indirectly show discrimination by giving rise to a plausible inference
of discrimination.” (citing Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015)); see
also Biro v. Conde Nast, 807 F.3d 541, 546–47 (2d Cir. 2016) (affirming dismissal of a complaint
because the plaintiff’s allegations against the defendants were conclusory and insufficient);
Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 638 F. App’x 100, 103 (2d Cir.
2016) (affirming dismissal of a plaintiff’s claims because he failed to “include any factual
allegations to support” the claims). For these reasons, Plaintiff’s claim under the ADA is
dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
For the reasons set forth above, the Complaint is dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of Plaintiff’s pro se status, the Court grants
Plaintiff thirty (30) days to amend the Complaint in order to state a claim under the ADA.
Plaintiff is reminded that an amended complaint completely replaces the original Complaint.
The amended complaint must be captioned, “Amended Complaint,” and shall bear the same
docket number as this order. No summons shall issue at this time, and all further proceedings
shall be stayed for 30 days. 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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
MARGO K. BRODIE
United States District Judge
Dated: October 12, 2016
Brooklyn, New York
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