Merisier v. Kings County Hospital

Filing 4

MEMORANDUM AND ORDER: Plaintiff's request to proceed in forma pauperis is granted solely for the purpose of this Order. For the reasons set forth in the attached order, the complaint is dismissed for failure to state a claim pursuant to 2 8 U.S.C. § 1915(e)(2)(B). Merisier is granted leave to file an amended complaint within 30 days from the date of this Order. The new complaint should be captioned as an Amended Complaint, and bear the same docket number as this Order. Any amende d complaint completely replaces the original complaint. No summons shall issue at this time, and all further proceedings shall be stayed for 30 days. Failure to plead sufficient facts in the amended complaint to give rise to a claim will result in di smissal of this action, and, if Merisier fails to file an amended complaint within 30 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 in forma p auperis 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 Merisier 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 10/25/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARIE MERISIER,
Plaintiff,
MEMORANDUM AND
ORDER
16-CV-7088 (RRM) (RML)

- against KINGS COUNTY HOSPITAL,
Defendant.
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ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Marie Merisier, proceeding pro se, brings this employment discrimination action
against her employer, Kings County Hospital. (See Compl. (Doc. No. 1).) Her request to
proceed in forma pauperis is granted solely for the purpose of this Order. For the reasons stated
below, Merisier’s complaint is dismissed with leave to replead within 30 days of the date of
entry of this Order.
BACKGROUND
Merisier 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. (Compl. at 3.) 1 Merisier checked the boxes indicating discriminatory
conduct consisting of unequal terms and conditions of employment and retaliation. (Compl. at
4.) In the section to allege discrimination, she neither
checks any of the boxes nor specifies any basis for discrimination. (Compl. at 5.) In the space to
describe the facts of her case, Merisier states: “Since my employment at this agency I have been
treated differently from my peers.” (Compl. at 6.) She does not indicate how long she was

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For ease of reference, all pages refer to the Electronic Filing System (“ECF”) pagination.

employed with her current employer. She states that she was assaulted by an employee on
September 23, 2015, but that the administration penalized her instead of the other employee.
(Id.) She states: “Administration has continuously . . . tried to defame my character by trying to
make me out to be a violent person with these false allegations where there is video footage of
everything that has taken place but refuse to provide it because it will show that I’m continuously
being bullied/harassed and now assaulted.” (Id.) Merisier alleges that she filed a complaint with
the Division of Human Rights, but that the investigator told her that a decision had been made
“based on lack of evidence in support of my claims.” (Id.) She does not allege that the
harassment or disciplinary action were based on her race, color, sex, religion, or national origin.
DISCUSSION
A complaint filed in forma pauperis may be dismissed “at any time” upon determination
that the action “(i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be
granted, or (iii) seeks monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915(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 action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, the “[f]actual allegations must be enough to raise a right to relief
above the speculative level,” and to nudge a plaintiff’s 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,

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“[a] document filed pro se is ‘to be liberally construed,’ . . . and ‘a pro se complaint, however
inartfully 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,
106 (1976)). Thus, a court must read a pro se complaint with “special solicitude,” 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)
(quotation marks omitted).
Title VII provides in relevant part:
It shall be an unlawful employment practice for an employer—
(1) 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; or
(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex, or
national origin
42 U.S.C.A. § 2000e-2(a). In order to state a claim under Title VII, Merisier must establish (1)
that she is a member of the protected class, (2) that she was qualified for the position, (3) that she
was subject to an adverse employment decision, and (4) that the adverse employment decision
was made under circumstances giving rise to an inference of unlawful discrimination. Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). To state a cause of action for
hostile work environment under Title VII, abusive conduct in the workplace must also be related
to the plaintiff’s membership in a protected class. Brennan v. Metro. Opera Ass’n, 192 F.3d 310,
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318 (2d Cir. 1999). “Disrespectful, harsh, and unfair treatment in the workplace alone does not
state a claim for violation of federal employment law.” Rissman v. Chertoff, No. 08-CV-7352
(DC), 2008 WL 5191394, at *2 (S.D.N.Y. Dec. 12, 2008).
Merisier’s complaint fails to state a claim under Title VII. In the instant complaint,
Merisier has not identified herself as a member of a protected class, nor has she presented any
facts indicating that she was discriminated against on that basis. The only potentially abusive
behavior she reports is that an unidentified employee shoved her and that she faced disciplinary
action as a result of the incident. She has not alleged that this treatment was based on her
membership in a protected class.
Nothing in Merisier’s complaint, as submitted, suggests that the different treatment she
has experienced in her employment was related to her membership in a protected class or that
she was discriminated against on the basis of such membership. As Merisier has not adequately
alleged that she was discriminated against on the basis of her membership in a protected 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 Merisier’s pro se status, the Court grants leave to file an amended complaint.
In order to state a claim for employment discrimination pursuant to Title VII, she must allege
that she is a member of a protected class and present facts that would support her claim that the
harassment she faced was because of membership in that group. Because Merisier already has a
complaint alleging racial discrimination in employment that remains pending, any claims
asserted in a possible amended complaint in the instant action must not overlap with or duplicate
the claims she asserted in her prior complaint.

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CONCLUSION
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). Merisier is granted leave to file an amended complaint
within 30 days from the date of this Order. The new complaint should be captioned as an
“Amended Complaint,” and bear the same docket number as this Order. Any amended
complaint completely replaces the original complaint. No summons shall issue at this time, and
all further proceedings shall be stayed for 30 days. Failure to plead sufficient facts in the
amended complaint to give rise to a claim will result in dismissal of this action, and, if Merisier
fails to file an amended complaint within 30 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 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 Merisier a copy of this order, together
with a form complaint for employment discrimination actions, and note the mailing on the
docket.
SO ORDERED.

Dated: Brooklyn, New York
October 25, 2017

Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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