McClarence v. International Union of Operating Engineers Locla Union 14-1413
MEMORANDUM AND ORDER: For the reasons set forth in the attached order, the complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). McClarence's claims related to his prior conviction are dismissed without prejudice to filing in state court. McClarence is granted leave to file an amended complaint to allege claims related to Title VII discrimination. No summons shall issue at this time, and all further proceedings shall be stayed for thirty days. Failu re to plead sufficient facts in the amended complaint to give rise to a claim will result in dismissal of this action, and if plaintiff fails to file an amended complaint within thirty days, judgment shall enter. The Court certifies pursuant to 28 U. S.C. § l 9 15(a)(3) that any appeal from this Order 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). The Clerk of Court is respectfully directed to send Rickey McClarence,pro se,a copy of this order together with a form complaint for employment discrimination actions, and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 9/5/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
16-CV-6614 (RRM) (LB)
- against INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL UNION 14-1413 ,
ROSL YNN R. MAUSKOPF, United States District Judge.
Plaintiff Rickey McClarence, proceedingpro se, brings this employment discrimination
action against a labor union. (Comp!. (Doc. No. 1).) He attaches the September 27, 2016 letter
from the Equal Employment Opportunity Commission ("EEOC") notifying him of his right to
sue in federal court. (Id) His request to proceed in Jonna pauperis is granted for the purpose of
this Order. For the reasons that follow, McClarence's comp laint is dismissed with leave to
amend within thirty (30) days of the entry of this Order.
On November 22, 2016, McC larence commenced this action by filing a form complaint
for employment discrimination actions and checking the box to initiate an action under Title VII
of the Civil Rights Act of 1964. (CompI. at 3.) 1 He checked the boxes on the form indicating
that he was discriminated against on the basis ofrace and co lor, but he did not specify his race or
color. (Id at 5.) He also checked the box fo r "disability or perceived disability" and specified
" my conviction record." (Id.) He checked the boxes indicating failure to hire and termination of
his employment. (Id. at 4.) In the space to describe the facts of hi s case, McClarence states
All citations to pages of the complaint refer to the Electronic Case Filing System (" ECF" ) pagination .
" [w]hen I completed my sentence from pri son the International U nion of Operating Engineers
Local Union 14- 14 13 would not let me continue to work thru the union." (Id. at 5.) He states
that he was informed that the exclusion was based on the results of a drug test in April, 2007,
"even tho I work thru the union until I went to prison in 2009 without discrim ination until I
finished my prison sentence and tryed [sic] to reconnect with the union." (Id.) He alleges that he
cannot support his pre-prison lifestyle and meet his child support obligations because he is
unable to get hi s union card and renew his work licenses and certificates. (Id. at 6.)
STANDARD OF REVIEW
A complaint fi led in forma pauperis may be dismissed "at any time" upon determination
that the actio n " (i) is frivo lous or malicious, (ii) fails to state a claim upon which relief m ay be
granted, or (iii) seeks m onetary relief from a defendant who is immune from such relief." 28
U .S. C. § l 9 15(e)(2)(B). In evaluating whether a pleading states a claim for relief, "a court must
accept as true all factual allegations contained in a complaint but need not accept legal
conclusions." Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U .S . 662, 678 (2009) (internal quotation marks omitted). "Threadbare recitals of the
elements of a cause of acti on, suppo rted by mere conclusory statements, do not suffice ." Iqbal,
556 U.S. at 678. Moreover, the " [fjactual allegations must be enough to raise a right to reli ef
above the specu lative level," and to nudge a plaintiffs claims "across the line from conceivable
to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Pro se complaints, like other pleadings, must contain sufficient factual allegations to
meet the plausibility standard. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However,
" [a] document fi led prose is ' to be liberally construed,' . . . and ' a pro se complaint, however
inartfull y pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers."' Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
I 06 ( 1976)). Thus, a court must read a prose complaint with "special so licitude," Ruotolo v.
I. R.S., 28 F.3d 6, 8 (2d Cir. 1994), and must interpret it to raise the strongest claims it suggests.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471 , 474-75 (2d Cir. 2006). Where a liberal
reading of the pleading "gives any indication that a valid claim might be stated," the court must
grant leave to amend it at least once. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(internal quotation marks omitted).
Title VII provides that " [i]t shall be an unlawful employment practice fo r a labor
organization to exclude or to expel from its membership, or otherwise to discriminate against,
any individual because of his race, color ... or national origin .... " 42 U.S.C.A. § 2000e-2. To
state a Title VII wrongful termination or exclusion claim against a labor organization, "a plaintiff
must demonstrate that the union I) discriminated against her because of her race, color, religion,
sex, or natio nal origin, 2) segregated or limited its membership, or classified its membership or
applicants for membership ' in any way which would deprive or tend to deprive any individual of
employment oppo1tunities, ' or 3) caused or attempted to cause an employer to discriminate
against an individual because of her race, color, religion, sex, or national origin." Daniels v.
Health Ins. Plan a/Greater NY, No. 02-CV-6054 (HB), 2007 WL 27115, at *7 (S .D.N.Y. Jan.
4, 2007) (quoting 42 U.S.C. § 2000e-2(c)(l)-(3)).
In this case, McClarence' s complaint fai ls to state a claim under Title VII. McClarence
has asserted a bare-bones claim that he was discriminated against on the basis ofrace or color,
but has not identified himself as a member of a protected class based on race, nor presented any
facts indicating that he was discriminated against on the basis of his membership in a protected
class. Indeed, the only explanations he provides for why he was terminated or failed to be
reinstated to union membership are the result of a drug test and a past criminal conviction.
(Compl. at 4-5.) Neither of these factors indicate membership in a suspect class that is protected
under federa l anti-discriminati on laws. Title VII and the Americans with Disabilities Act do not
protect against employment discrimination based upon a prior conviction. 2 See McCoy v. People
Care Inc., No. I 1-CV-2689 (RA) , 20 13 WL 5313433, at *5 (S.D.N.Y. Sept. 20, 20 13); Idlisan v.
N.YS. Dep't a/Taxation & Fin., No. 12-CV- 1787 (MAD) (CFH), 20 13 WL 2898050, at *4
(N.D.N.Y. June 13, 2013); Tubbs v. NYC. Parks Dep 't (JTP) Parks Opportunity Arsenal W,
No. 12-CV-3322 (CBA) (VMS), 2012 WL 4838439, at *1 (E.D.N.Y. Oct. 10, 2012); see also 42
U.S.C. §§ 12112-12117. Moreover, "courts consistently conclude that an employee's fai lure of a
drug test constitutes a legitimate nondiscriminatory reason for terminating the employee." Fahey
v. City ofN. Y, No . 10-CV-4609 (ILG) (MOO), 2012 WL 413990, at *9 (E.D.N.Y. Feb. 7, 20 12)
(collecting cases). As McClarence has not adequately alleged that he was discriminated against
on the basis of hi s membership in a suspect class, the complaint as filed fails to state a claim for
relief and must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
In light of McClarence ' s prose status, the Court grants leave to file an amended
complaint to state any possible claim for employment discrimination pursuant to Title VII. With
respect to any claim for racial discrimination, McClarence must identify his race and specify any
race-based discrimination or classification that he faced. McClarence may submit an amended
complaint within thirty (30) days from the date of this Order. The new complaint should be
New York State Human Rights Law§ 296( 15) and New York Ciry Human Rights Law do provide some protection
from employment discrimination on the basis of past criminal convictions. See N. Y.C. Admin. Code§ 8-107, et seq.;
N.Y. Exec. Law§ 290, et seq. Nothing in this order shall be construed to preclude McClarence from raising these
claims in state court.
captioned as an "Amended Complaint," and bear the same docket number as this Order. The
Amended Complaint shall completely replace the original complaint.
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). McClarence's claims related to his prior conviction are
dismissed without prejudice to filing in state court. McClarence is granted leave to file an
amended complaint to allege claims related to Title VII discrimination. No summons shall issue
at this time, and all further proceedings shall be stayed for thirty days. Failure to plead sufficient
facts in the amended complaint to give rise to a claim wi ll result in dismissal of this action, and if
plaintiff fails to file an amended complaint within thirty days, judgment shall enter.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore informa pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is respectfully requested to send Rickey McClarence, prose, a copy
of this Order, together with a form complaint for employment discrimination actions, and note
the mai ling on the docket.
Dated: Brooklyn, New York
~~ ~ ,20 17
s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge
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