Ninying v. Fire Department, City of New York

Filing 15

MEMORANDUM AND ORDER: As set forth in the Court's October 11, 2017 Memorandum and Order, the complaint is dismissed for failure to state a claim. Plaintiff is granted thirty (30) days' leave to file an amended complaint. See attached Memo randum and Order for details. The Clerk of the Court is respectfully requested to serve this Memorandum and Order on the pro se Plaintiff and to include a form complaint for employment discrimination. Ordered by Judge LaShann DeArcy Hall on 10/11/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GEORGE FUL NINYING,

MEMORANDUM AND ORDER
17 CV 688 (LDH)

Plaintiff,
-vFIRE DEPARTMENT, CITY OF NEW YORK,
Defendant.
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LASHANN DEARCY HALL, United States District Judge.

On January 30, 2017, pro se Plaintiff George Ful Ninying filed the instant action in the
United States District Court for the Southern District of New York, alleging violations of the Age
Discrimination in Employment Act of 1967 (“ADEA”) and the New York State Human Rights
Law (“NYSHRL”). (Compl. 1-3, ECF No. 2.) The complaint was transferred to this Court on
February 7, 2017. (Feb. 7, 2017 Order, ECF No. 4.) By Order dated June 16, 2016, this Court
denied Plaintiff’s application to proceed in forma pauperis (“IFP”) based on Plaintiff’s
incomplete financial declaration. (June 16, 2017 Order, ECF No. 6.) On June 30, 2017, Plaintiff
paid the $400.00 filing fee to initiate this action. (ECF No. 8.) For the reasons stated below, the
complaint fails to state a claim for which relief may be granted. Plaintiff is granted leave to file
an amended complaint within thirty (30) days of the date of this Memorandum and Order.
BACKGROUND
On January 30, 2017, Plaintiff filed an employment discrimination form complaint.
Therein, Plaintiff indicated, by checking the requisite boxes, that the bases for his claim was age
discrimination. (Compl. 3.) Plaintiff further noted that he is fifty-seven years old. (Id.) Plaintiff
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also checked boxes indicating that he was discriminated against based on his gender, national
origin, and color. (Id.) Although such claims are cognizable under Title VII of the Civil Rights
Act of 1964 (“Title VII”), Plaintiff did not check the box to indicate that he brings this action
under that statute. (Id.) Plaintiff’s complaint alleges no facts whatsoever in support of his
claims. On October 31, 2016, the Equal Employment Opportunity Commission (“EEOC”)
issued a Dismissal and Notice of Rights indicating that “[b]ased upon its investigation, the EEOC
is unable to conclude that the information obtained established violations of the statutes.”
(Compl. 6).
DISCUSSION
I. Standard of Review
A complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.
Ed. 2d 868 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1955,
167 L.Ed.2d 929 (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. Id. The plausibility standard “is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In reviewing
a complaint, the Court must assume the factual allegations therein to be true and draw all
reasonable inferences in the Plaintiff’s favor. Id.
At this stage, the Court “must merely determine whether the complaint itself is legally
sufficient.” Morris v. Northrop Grumman Corp., 37 F. Supp. 556, 565 (E.D.N.Y. 1999) (internal
citation omitted). It is not the Court’s function to weigh the evidence that might be presented at
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trial. Id. The issue before the Court at this stage “is not whether a plaintiff will ultimately
prevail, but whether the claimant is entitled to offer evidence to support the claims.” Id. (citing
Villager Pond Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S.
808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996)).
Where, as here, the plaintiff is proceeding pro se, courts are “obliged to construe the
plaintiff’s pleadings liberally.” Giannone v. Bank of Am., N.A., 812 F. Supp. 2d 219-20
(E.D.N.Y. 2011). Because pro se litigants are entitled to a liberal construction of their pleadings,
their complaints should be read to raise the strongest arguments that they suggest. Sykes v. Bank
of America, 723 F.3d 399, 403 (2d Cir. 2013). A pro se complaint, “however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers.” Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 183, 191-92 (2d Cir. 2008) (quoting Erickson v. Pardus,
551 U.S. 89, 127 S.Ct 2197, 2200, 167 L.Ed.2d 1081 (2007)). This rule is “particularly so when
the pro se plaintiff alleges that [his] civil rights have been violated.” Id. (citing McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Accordingly, the dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most unsustainable of cases. Rios v. Third
Precinct Bay Shore, No. 08-cv-4641, 2009 WL 2601303, at *2 (E.D.N.Y. Aug. 20, 2009).
II. The FDNY is not a Suable Entity
As an initial matter, Plaintiff has sued the wrong entity. As a municipal agency, the
FDNY cannot be subject to suit. Fahey v. City of New York, No. 10 Civ. 4609, 2012 WL
413990, at *5 (E.D.N.Y. Feb. 7, 2012). Rather, under the New York City Charter, “all actions
and proceedings for the recovery of penalties for the violation of any law shall be brought in the

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name of the City of New York and not in that of any agency, except where otherwise provided by
law.” Id. (quoting N.Y. City Charter Ch. 17 § 396). As such, the FDNY is not a suable entity,
and the claims against it are dismissed. Plaintiff will be permitted to amend his complaint to
bring this action against the proper Defendant, the City of New York.
III. Plaintiff’s Discrimination Claims
The instant complaint is devoid of any facts that would support an employment
discrimination claim. In support of his age discrimination claims, for example, Plaintiff simply
checks the box for age discrimination on his form complaint. There are no allegations suggesting
that Defendant acted in a discriminatory manner based on Plaintiff’s age. At a minimum, an
ADEA claimant must inform the court and the defendant why he believes age discrimination
existed. See Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 399 (2d Cir. 1985) (“While a
claim made under the ADEA need not contain every supporting detail, it must at least inform the
court and the defendant generally of the reasons the plaintiff believes age discrimination has been
practiced.”). The same is required for Plaintiff’s claims under the NYSHRL. See
Dimitracopoulos v. City of New York, 26 F. Supp. 3d 200, 216 (E.D.N.Y. 2014) (“Discrimination
claims brought under the NYSHRL are analyzed under the same standard as those governing the
ADEA.”) Here, Plaintiff simply asserts, without further elaboration, that he is more than forty
years of age, but he provides no detail as to any discriminatory acts taken by Defendant. This is
simply insufficient to plead a violation of the ADEA or the NYSHRL, and these claims are
therefore dismissed without prejudice.

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The Court construes Plaintiff’s claims of discrimination on the basis of gender, national
origin, and color, as alleging a violation of Title VII. As with Plaintiff’s age discrimination
claims, Plaintiff provides no facts that could possibly connect any adverse employment action to
a protected status, as is required to state a claim under Title VII. See Vega v. Hempstead Union
School Dist., 801 F.3d 72, 86-87 (2d Cir. 2015) (a plaintiff asserting a Title VII discrimination
claim must allege facts showing that “(1) the employer took adverse action against him and (2)
his race, color, religion, sex, or national origin was a motivating factor in the employment
decision,” which can be shown “by alleging facts that directly show discrimination or facts that
indirectly show discrimination by giving rise to a plausible inference of discrimination.”). Here,
to the extent that Plaintiff seeks to assert a Title VII claim, he fails to plead any facts in support
of this claim, and this claim is therefore dismissed for failure to state a claim.
CONCLUSION
Plaintiff’s employment discrimination claims are dismissed without prejudice. Plaintiff is
granted thirty (30) days’ leave to file an amended complaint. See Cruz v. Gomez, 202 F.3d 593,
596-97 (2d Cir. 2000). Should Plaintiff have a basis for a claim of employment discrimination,
he should provide facts in support of such claim. Plaintiff is reminded that his amended
complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure and “plead
enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. If
available, Plaintiff should include a copy of the charge of discrimination that he filed with the
EEOC. Plaintiff shall name the City of New York as the proper Defendant.

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The Clerk of Court is respectfully requested to serve this Memorandum and Order on the
pro se Plaintiff and to include a form complaint for employment discrimination. The amended
complaint must be captioned as an “Amended Complaint” and bear the same docket number as
this Memorandum and Order. 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).
SO ORDERED.
Dated: Brooklyn, New York
October 11, 2017

_/s/LDH___________________
LASHANN DEARCY HALL
United States District Judge

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