Lewis v. University Towers Apartment Corp. et al
MEMORANDUM & ORDER: The Court grants Plaintiff's 2 request to proceed in forma pauperis for the purpose of this Memorandum and Order. The Court dismisses Plaintiff's claims against the individual Defendants. The Court dism isses Plaintiff's Title VII claim for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff leave to file an amended complaint against University Towers within 30 days of the date of 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 purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 4/13/2017. C/mailed. (Parties: David Franque and Michael Urena terminated.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
UNIVERSITY TOWERS APARTMENT CORP.,
MICHAEL URENA and DAVID FRANQUE,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Gleason Lewis, proceeding pro se, commenced the above-captioned action on
February 17, 2017 against Defendants University Towers Apartment Corporation (“University
Towers”), Michael Urena and David Franque, for employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (Compl.,
Docket Entry No. 1.) The Court grants Plaintiff’s request to proceed in forma pauperis for the
purpose of this Memorandum and Order. For the reasons discussed below, the Court dismisses
the Complaint and grants Plaintiff thirty (30) days from the date of this Memorandum and Order
to file an amended complaint.
Plaintiff worked for University Towers as a porter for approximately five years.
(Compl. 6.) 1 On the form cover page accompanying the Complaint, Plaintiff checked boxes
corresponding to claims for failure to hire, termination of employment, failure to promote,
Because the Complaint is not consecutively paginated, the Court refers to the page
numbers assigned by the electronic document filing system (“ECF”).
unequal terms and conditions of employment and retaliation. (Id. at 4.) Plaintiff indicates that
Defendants discriminated against him because of his race, color and religion, elaborating with
regard to his religion that his “hair” is “rastor.” (Id. at 5.) In the statement of facts, Plaintiff
asserts that he is “one of the hardest worker[s]” and the “the only person on the job that [ha]s
been evaluated every year,” while “the other co-worker[s] get to do whatever.” (Id.) Plaintiff
also attaches to the Complaint a six-page letter addressed “To Whom It May Concern” and dated
September 8, 2016, outlining situations in which his supervisors, Defendants Urena and Franque,
reprimanded him for improper disposal of garbage and refusal to sign the employee handbook,
left him waiting for appointments, and allegedly accused him of being absent or tardy to work
when he was present or had a valid excuse for his absence. (Id. at 6–11.) Plaintiff was
terminated from his position but does not provide specific allegations about his termination
except to assert that “[t]he way [he] was terminated was completely orchestrated.” (Id. at 11.)
Plaintiff filed a charge with the Equal Employment Opportunity Commission (the
“EEOC”) on May 5, 2015, and received a notice of right-to-sue letter dated November 22, 2015
adopting “the findings of the state or local fair employment agency that investigated [Plaintiff’s]
charge.” (Id. at 12.)
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).
Plaintiff’s claim is time-barred
Plaintiff’s claim is untimely and is therefore dismissed.
In order to be timely, a claim under Title VII “must be filed in federal district court
within 90 days of the claimant’s receipt of a right-to-sue letter from the EEOC.” Tiberio v.
Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011) (per curiam) (citing
42 U.S.C. § 2000e-5(f)(1)); Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 598
(E.D.N.Y. 2013). “There is a presumption that a notice provided by a government agency was
mailed on the date shown on the notice,” and that “a mailed document is received three days
after its mailing.” Tiberio, 664 F.3d at 37 (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522,
526 (2d Cir. 1996)).
Here, the EEOC mailed Plaintiff a right-to-sue letter on November 22, 2015 and
indicated that a lawsuit based on the charge “must be filed within 90 days of . . . receipt.”
(Compl. 12 (emphasis omitted).) The governing mailing presumptions therefore apply to this
case, and the Court presumes that Plaintiff obtained the EEOC’s notice on November 26, 2015. 2
See Friedman v. Swiss Re Am. Holding Corp., 512 F. App’x 94, 96 (2d Cir. 2013) (noting that
the presumption that a mailed document is received three days after its mailing applies unless
sworn testimony suggests otherwise); Tiberio, 664 F.3d at 37 (same). Thus, Plaintiff must have
filed the Complaint no later than February 23, 2016 in order for it to have been timely.
Plaintiff commenced this action on February 17, 2017, almost a year after the February
23, 2016 deadline, (see Compl.), and has provided neither an explanation for the delay nor an
argument to toll the limitations period. See Haygood v. ACM Med. Lab., Inc., 642 F. App’x 27,
28 (2d Cir. 2016) (finding that district court did not err in determining that the plaintiff had not
met the “extraordinary” burden to invoke equitable tolling of the Title VII “90-day deadline”);
see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“[A] litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.”). As the Supreme Court
recently “reaffirm[ed],” “the second prong of the equitable tolling test is met only where the
circumstances that caused a litigant’s delay are both extraordinary and beyond its control.”
Menominee Indian Tribe of Wisc. v. United States, 577 U.S. ---, ---, 136 S. Ct. 750, 756 (2016).
Because Plaintiff has not provided facts to support equitable tolling of the limitations
period, the Court dismisses Plaintiff’s Title VII claim as untimely. However, Plaintiff is granted
leave to amend the Complaint to include facts that may support equitable tolling. Plaintiff
should include a copy of the charge of discrimination that he filed with the state or local
employment agency that investigated his allegations or a copy of the charge that he filed with the
November 22, 2015 was a Sunday.
Plaintiff fails to state a claim under Title VII
Plaintiff claims that Defendants failed to hire him, terminated his employment, failed to
promote him, retaliated against him and subjected him to unequal terms and conditions of
employment. (Compl. 4.) However, Plaintiff fails to plead sufficient factual allegations to
support his claims.
A plaintiff is required to “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” See Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Title VII provides that “[i]t shall be an unlawful employment practice for
an employer 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.” 42
U.S.C. § 2000e-2(a) (emphasis added); see also Brown v. City of Syracuse, 673 F.3d 141, 150
(2d Cir. 2012). To establish a prima facie case of discrimination, Plaintiff must show that: “(1)
he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) that the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory intent.” Littlejohn v. City of New
York, 795 F.3d 297, 307 (2d Cir. 2015); Brown, 673 F.3d at 150; see also Mills v. S. Conn. State
Univ., 519 F. App’x 73, 75 (2d. Cir. 2013).
Title VII also contains an anti-retaliation provision, prohibiting discrimination against an
employee “because he has opposed any . . . unlawful employment practice.” 42 U.S.C. § 2000e3(a); see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011)
(“Title VII . . . prohibits an employer from taking ‘materially adverse’ action against an
employee because the employee opposed conduct that Title VII forbids or the employee
otherwise engaged in protected activity.” (citations omitted)); Hicks v. Baines, 593 F.3d 159, 161
(2d Cir. 2010) (“Title VII’s anti-retaliation provision makes it unlawful ‘for an employer to
discriminate against any . . . employee . . . because [that employee] opposed any practice’ made
unlawful by Title VII.’” (alterations in original) (quoting 42 U.S.C. § 2000e-3(a))). To establish
a prima facie case of retaliation, a plaintiff must show: “(1) participation in a protected activity;
(2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a
causal connection between the protected activity and the adverse employment action.”
Littlejohn, 795 F.3d at 316 (quoting Hicks, 593 F.3d at 164).
Even liberally construing the Complaint, it fails to make out a prima facie case of
discrimination or retaliation. Plaintiff does not provide facts that connect an adverse
employment action — for example, his termination — to his protected status, nor does he
identify his race, color or religion in the Complaint. See Littlejohn, 795 F.3d at 311 (“The facts
required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate
question of whether the adverse employment action was attributable to discrimination. They
need only give plausible support to a minimal inference of discriminatory motivation.”); see also
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (“[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.”).
Nor does Plaintiff plead facts showing that his participation in a protected activity caused
Defendant to retaliate against him in a manner that adversely affected his employment. See
Littlejohn, 795 F.3d at 316.
Furthermore, Plaintiff names as Defendants two individual employees of University
Towers, but “Title VII does not provide for individual liability.” Raspardo v. Carlone, 770 F.3d
97, 113 (2d Cir. 2014). The Court accordingly dismisses Plaintiff’s claims against the individual
However, in light of Plaintiff’s pro se status, the Court grants Plaintiff leave to amend the
Complaint to plead facts that support an argument for equitable tolling and facts to show that his
race, color or religion was the reason for the alleged adverse employment action. Plaintiff may
also plead facts to show that he experienced an adverse employment action as a result of his
attempt to oppose a practice that is prohibited under Title VII. The amended complaint must
include a short, plain statement of facts sufficient to support a plausible claim that University
Towers discriminated or retaliated against him in violation of Title VII. Any amended complaint
must be filed within thirty (30) days of the date of this Memorandum and Order, must be
captioned “Amended Complaint” and must bear the same docket number as this Memorandum
and Order. No summons shall issue at this time, and all further proceedings shall be stayed for
thirty days. If Plaintiff fails to file an amended complaint within thirty days, the Court will
dismiss this action.
For the foregoing reasons, the Court dismisses Plaintiff’s Title VII claim for failure to
state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court
grants Plaintiff leave to file an amended complaint against University Towers within thirty (30)
days of the date of 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 purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
MARGO K. BRODIE
United States District Judge
Dated: April 13, 2017
Brooklyn, New York
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