Donadelle v. Diamantis et al

Filing 11

MEMORANDUM DECISION AND ORDER dated 8/7/17 denying both 9 and 10 motions for an extension of time as moot; defendants' 8 Motion to Dismiss must be denied. ( Ordered by Judge Brian M. Cogan on 8/7/2017 ) c/m (Guzzi, Roseann)

C/M
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
MALIK DONADELLE,
:
:
Plaintiff,
:
: MEMORANDUM
- against : DECISION AND ORDER
:
COSTAS DIAMANTIS, RAY MORGAN,
:
17-cv-1689 (BMC) (RLM)
JUAN BERNAL, and D.C. 9 NY IUPAT,
:
LOCAL 1974 DRYWALL,
:
:
Defendants.
:
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COGAN, District Judge.
1.

Plaintiff pro se brings this action for employment discrimination under Title VII

of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to 2000e-17, (“Title VII”) and
corresponding provisions of local law, alleging that he was terminated from an apprenticeship
program based on racial (black) and religious (Muslim) discrimination. He has named as
defendants D.C. 9 NY IUPAT, Local 1974 Drywall (“DC9”), and three individuals who are
involved either in the program or work for DC9. DC9 has moved to dismiss the complaint under
Rule 12(b)(1) and Rule 12(b)(6). Plaintiff failed to timely oppose the motion, but has belatedly
sought an extension of time to oppose the motion. DC9 also seeks an additional extension to file
his reply. I deny both motions for an extension of time as moot because, as a pro se plaintiff, I
have to consider the strongest possible arguments he might have made anyway, see Wager v.
Littell, 549 F. App’x 32, 33 (2d Cir. 2014) (citing Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.
2006)), and when viewed in that light, defendants’ motion to dismiss must be denied.

2.

DC9 first contends that any claims against it for religious discrimination and

retaliation must be dismissed for lack of subject matter jurisdiction because plaintiff’s EEOC
claim mentioned only racial discrimination and retaliation for that discrimination. DC9 correctly
cites Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001), which stands for the general
proposition that a racial discrimination claim will not exhaust a religious discrimination claim
because the former does not fairly put the EEOC on notice to investigate the latter. See also
McCahill v. Schottenstein Corp., No. 03-cv-6476, 2005 WL 354486, at *2 (W.D.N.Y. Feb. 15,
2005) (age discrimination claim did not exhaust religious discrimination claim). However, there
are exceptions to this rule; for example, a national origin claim can sometimes exhaust racial or
religious discrimination if the unstated grounds for discrimination are “closely related” to
national origin. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (national origin can
encompass race); see also Sasannejad v. University, 329 F. Supp. 2d 385, 389-91 (W.D.N.Y.
2004) (national origin can encompass religion).
3.

But I have no facts before me that would permit finding the applicability or

inapplicability of that exception. DC9 has not provided a copy of the actual charge of
discrimination that plaintiff filed. It has given me only the EEOC’s form 131, which is the
notice to the employer that a charge has been filed. That notice has checkmarks only for “race”
and “retaliation” under the “circumstances of alleged discrimination,” but it is exceedingly
sparse. It contains no narrative except “Issues: Discharge, Terms/Conditions” and lists as
“Dates” only the date of plaintiff’s termination. There is nothing signed by plaintiff, and the
form, although it states “See the enclosed for additional information,” leaves the box for
“Enclosure: Copy of Charge,” unchecked. It is signed by the EEOC, but not by plaintiff. In the
checklist boxes for “our handling of this charge,” the EEOC checked “No action is required by

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you at this time,” which may explain why the charge contains no substantive information other
than the date of plaintiff’s termination and that he is pursuing race discrimination and racial
retaliation claims.
4.

The EEOC requires a signed statement or intake questionnaire in support of a

claim, see EEOC, How to File a Charge of Employment Discrimination,
https://www.eeoc.gov/employees/howtofile.cfm (last visited Aug. 7, 2017) (“Don’t forget to sign
your letter. If you don’t sign it, we cannot investigate it.”), and it provides an exemplary form
for a claim (EEOC Form 5), both of which allow for, if they do not require, much more detail
than is contained on the employer’s notice of claim that DC9 has provided here. There is a
strong likelihood that the EEOC had more information than that contained on the employer’s
notice, and since DC9 has only given me the employer’s notice, I deny its motion to limit
plaintiff’s claim based on the scope of this administrative filing.
5.

DC9 next contends that the claim against it should be dismissed for lack of

subject matter jurisdiction because plaintiff’s administrative claim before the EEOC named only
the Finishing Trades Institute (“FTI”), which runs the apprenticeship program, as a defendant,
and the EEOC’s right to sue letter similarly only references FTI. However, it is not at all clear
that FTI is even a juridical entity that can be sued. Its website explains that “The Finishing
Trades Institute (FTI) is the education department for the International Union of Painters and
Allied Trades and the Finishing Contractors Association.” Finishing Trades Institute, What is
FTI?, http://www.finishingtradesinstitute.org/what-is-fti/ (last visited Aug. 7, 2017).
6.

To the extent FTI is a mere “department” of DC9, it has no legal status and cannot

be sued, cf. Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991) (a plaintiff “no
more can proceed against the police department [of a city] alone than [he] could against the
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accounting department of a corporation”); Cooper v. Orange Cty., No. 15-cv-10075, 2017 WL
3309754, at *2 (S.D.N.Y. Aug. 2, 2017) (department of municipal corporation cannot be sued),
and the administrative claim against it is legally effective notice of the claim to DC9. If it is
instead some form of partnership or joint venture between DC9 and the contractors’ trade
association, which seems more likely, the website nevertheless shows that FTI has an
exceedingly close relationship with DC9, as the first hyperlink at the top and bottom of FTI’s
webpage is entitled “Our Union – IUPTA,” which describes DC9 and provides a link to its
website. On FTI’s letterhead, a copy of which is annexed to the complaint, the DC 9 logo and
website appears on the left side, that being a more prominent location than FTI’s own logo on the
right side. And named-defendant Costas Diamantis, who apparently runs the apprenticeship
program, lists his title as “Director of Apprenticeship and Training, DC9/FTI,” which also
suggests a very close connection.
7.

At the very least, there are factual issues as to the application of the “identity of

interest” exception to the general rule requiring that a claimant must name a defendant in an
administrative charge, an exception established by Johnson v. Palma, 931 F.2d 203 (2d Cir.
1991). See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995); Senecal
v. B.G. Lenders Serv. LLC, 976 F. Supp. 2d 199, 213-29 (N.D.N.Y. Sept. 30, 2013); Zhao v.
State Univ. of N.Y., 472 F. Supp. 2d 289, 305-06 (E.D.N.Y. 2007); Jackson v. N.Y. City Transit,
No. 05-cv-1763, 2005 WL 2664527, at *2 (E.D.N.Y. Oct. 19, 2005); Olvera-Morales v. Sterling
Onions, Inc., 322 F. Supp. 2d 211, 215-19 (N.D.N.Y. 2004); Parker v. City of N.Y., No. 04-cv2257, 2004 WL 2671634, at *3 (E.D.N.Y. Nov. 18, 2004); Dortz v. City of N.Y., 904 F. Supp.
127, 142-44 (S.D.N.Y. 1995). At least one district court has held that under the Johnson
framework, naming a partner in an EEOC claim can constitute adequate notice to the partnership,

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Schade v. Coty, Inc., No. 00-cv-1568, 2001 WL 709258, at *4-5 (S.D.N.Y. June 25, 2001), and
another has held that naming a partnership or joint venture can be adequate as against the
individual partners or joint venturers. Abdullajeva v. Club Quarters, Inc., No. 96-cv-0383, 1996
WL 4970209, at *3 (S.D.N.Y. Sept. 3, 1996).
8.

DC9 has provided no facts on which I could undertake a Johnson analysis. It has

not even submitted an affidavit saying that it lacked notice of plaintiff’s EEOC charge, which is
telling. In a represented case, I might charge the plaintiff with the failure to demonstrate that he
falls within the identity of interest exception. But as the cases cited above suggest, that would be
inappropriate in a pro se case.
9.

DC9 fares no better on its argument that the complaint fails to state a claim. It

makes the mistake of trying to saddle plaintiff with the prima facie showing required on a motion
for summary judgment under McDonnell-Douglas v. Green, 411 U.S. 792 (1973), relying on a
couple of older district court opinions that did the same thing. But the Second Circuit has more
recently made it clear that plaintiff has no such pleading burden.
10.

The Supreme Court had held in Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002), that a plaintiff in a discrimination case need not set forth sufficient facts to state a prima
facie case in a Title VII complaint. The question arose whether Swierkiewicz remained good
law after the Court’s subsequent tightening of pleading requirements in Ashcroft v. Iqbal, 556
U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), with district courts
coming out both ways on that issue. The Second Circuit settled the issue in EEOC v. Port
Authority of New York & New Jersey, 768 F.3d 247 (2d Cir. 2014), for cases under the Equal
Pay Act, and then extended that holding to Title VII claims in Vega v. Hempstead Union Free
School District, 801 F.3d 72 (2d Cir. 2015). These cases held that Swierkiewicz survived Iqbal
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and Twombly because, for one reason, the Supreme Court had cited Swierkiewicz with approval
in Twombly. “Twombly’s endorsement of Swierkiewicz mandates, at a minimum, that
Swierkiewicz’s rejection of a heightened pleading standard in discrimination cases remains
valid.” Vega, 801 F.3d at 84 (quoting, Port Authority, 768 F.3d at 254). Thus, when DC9 urges
dismissal in its motion because “[t]he Plaintiff has not established a prima facie case,” DC9 is
advancing the wrong standard.
11.

Moreover, as is the case with all in forma pauperis complaints, this Court

screened plaintiff’s complaint under 28 U.S.C. § 1915 when it was first filed to see if it stated a
plausible claim before it permitted the issuance of summonses. 1 The Court allowed the claim to
go forward because, under the proper plausibility standard from Iqbal and Twombly, plaintiff
may have a claim for racial or religious discrimination and retaliation. It takes a close review of
the complaint and its attachments to glean the factual allegations on which these claims might be
based, but the story ultimately emerges.
12.

The claim appears to have its genesis from an incident sometime in 2015, when

plaintiff was assigned in his apprenticeship capacity to a job for a company called Xtreme
Drywall LLC, which was in turn performing work for a school board. Plaintiff had a conflict
with the foreman that involved plaintiff’s race or religion. We are not told how it involved
plaintiff’s race or religion, just that it did. Plaintiff complained about the incident to the EEOC,
DC9, and the school board. In addition, he complained to the New York State or federal
Department of Labor, and his complaint reached a person named Kimmy Finping So. Ms.
Finping So advised plaintiff that she was going to be making a worksite visit to FTI at some
1

Counsel opposing pro se complaints filed in forma pauperis would do well to remember that in this district and
many others, such complaints, pursuant to the statute, are not allowed to proceed unless the Court believes, after a
sua sponte inquiry, that they state a claim. This should not deter a defendant from seeking dismissal under Rule
12(b)(6), but in making that motion, a defendant should be asking itself how to persuade the Court that its
determination to allow the case to proceed was too accommodating to the pro se plaintiff.
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point in the future. Plaintiff’s initial point, however, is that as a result of plaintiff’s complaints,
Xtreme determined to stop taking on apprentices from FTI, and plaintiff believes, although he
offers no specifics, that this was a topic of some conversation at FTI and/or DC9.
13.

Beginning in January or February 2016, plaintiff received no more work

assignments through the program. He continued to attend classes at FTI through July 2016, at
which time he asked defendant Juan Bernal, who is an instructor at FTI, for a leave of absence
due to a sudden family emergency. Bernal told him not to worry, that he (Bernal) would take
care of it, and, in answer to plaintiff’s inquiry, that there was no advance paperwork that plaintiff
needed to complete.
14.

However, on August 8, 2016, Bernal left plaintiff a voicemail, advising him that

plaintiff had to come in to discuss his “reinstatement.” This surprised plaintiff because he did
not know he had been removed as an apprentice. The voicemail said there would be a “first
meeting,” a reinstatement orientation for those in plaintiff’s position (i.e., former apprentices
who had been dropped from the program) on September 12, 2016. Although surprised, plaintiff
had no real choice but to proceed as directed.
15.

Plaintiff attended the September 12th orientation meeting and completed the

attendance form so stating. He was also given a class schedule assigning him to classes with his
name on it. He began to attend classes on September 26, 2016.
16.

On October 10, 2016, two things happened. One is that plaintiff met with Bernal

and filled out an apprenticeship reinstatement form, which stated that plaintiff’s reinstatement
would be effective as of September 26, 2016. It further stated that plaintiff would be receiving
13 months’ credit, although plaintiff thought he was entitled to more.

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17.

In addition, at the class on that date, participants were asked to orally share “four

categories from their personal lives” which were “1) Weaknesses, 2) Strengths, 3) Core Values
and 4) Personal challenges.” When plaintiff’s turn came, he stated “Family, Honesty, Loyalty,
My Faith/religion, and prayer.” Bernal asked plaintiff what his religion was, and why he called
himself “brother,” and although it is not specifically alleged, the inference is that plaintiff
disclosed that he was Muslim. Bernal then told everyone in the class that plaintiff had filed
complaints, apparently referring to the Xtreme complaints, alleging religious discrimination.
Bernal did not ask anybody else what religion they observed.
18.

In addition, during one of the other student’s “sharing” presentation, that student

stated he had been dropped from the apprenticeship program for disrespecting its rules, being
rude and disrespectful to the instructors, and not attending classes. That student expressed
“grat[itude] for being allowed to be reinstated into the program after all [that] he did [] wrong as
an apprentice.”
19.

Later, by letter dated October 18, 2016, plaintiff wrote to Diamantis, whose title,

it will be recalled, is “Director of Apprenticeship & Training, DC9/FTI,” to inquire, among other
things, why he was only receiving 13 months’ credit.
20.

On November 7, 2016, when plaintiff appeared to attend class, Bernal rudely

removed plaintiff from class and advised him that he was no longer an apprentice and had to
leave the building immediately. In fact, although plaintiff had not yet received it, Diamantis had
sent him a letter dated October 28, 2016, in response to plaintiff’s letter of October 18, 2017,
advising him to the same effect. The Diamantis letter stated that plaintiff had asked to be
dropped from the program as of March 29, 2016, but this was not true; rather, as noted above,
plaintiff had requested an emergency personal leave in July and had never asked to be dropped
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from the program. Finally, the letter stated that FTI had reviewed plaintiff’s work history and
absences and determined that based on that review, he would not be reinstated.
21.

To this picture, plaintiff adds one other factual allegation: Ms. Finping So from

the DOL was scheduled to make her worksite visit on November 7, 2016, the same day he was
unceremoniously removed from the building.
22.

All of these allegations must be accepted as true for purposes of a Rule 12(b)(6)

motion. Viewed in that manner, they adequately cross the Iqbal/Twombly line from possible to
plausible. Plaintiff’s basic point is that his termination for alleged non-attendance was
pretextual; it was actually in retaliation for his having undertaken protected activity – the making
of a discrimination complaint – against Xtreme for its foreman’s racially- or religiously-based
disparagement.
23.

The inference that plaintiff seeks to draw is that DC9 resented plaintiff having

made these complaints because they resulted in the loss of a placement opportunity for its
apprentices. That inference is supported by the facts that (1) plaintiff never received a warning
or notice that he had been dropped from the program until some over four months after it
occurred; (2) plaintiff denies having (or at least knowing about) any attendance problem; and (3)
during that period, FTI, through Bernal, continued to work with him as if he were still in the
program. Even in August, 2016, when Bernal finally told him that he had been dropped,
resulting in a punishment of no work for six months (although plaintiff did not know he was
being retaliated against), plaintiff was invited back in and attended classes as if he were going to
be reinstated. Thus, a plausible inference can be drawn of retaliation.
24.

An additional incident of discrimination or retaliation can be plausibly inferred

from the fact that after his “punishment” period, plaintiff was allowed to continue to attend class
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pending his reinstatement, and he was only barred when he disclosed, in response to Bernal’s
questions in class the following October, that he was an observant Muslim. There was no greater
attendance problem going on in October than there had been in August, when Bernal had invited
him to be reinstated. Rather, what had changed was plaintiff’s declaration of his religious
persuasion in response to being questioned publicly by Bernal. Plaintiff’s allegations
circumstantially support this conclusion because (1) no other member of the class was asked
about their religion; and (2) another member of the class, who not only actually had an
attendance problem but who had been dismissed from the program for being rude to FTI faculty,
was granted reinstatement. Liberally construing plaintiff’s complaint, this is an adequate
comparable for pleading purposes.
25.

Finally, the fact that Ms. Finping So was embarking on a site visit at FTI on the

same day that plaintiff was banned from the building further supports the inference that DC9 did
not want him communicating his past grievances to Ms. Finping So, particularly when, by that
point, DC9 had determined that plaintiff would not be reinstated.
26.

Instead of applying the fundamental principle that the facts have to be viewed in

the light most favorable to plaintiff, DC9’s motion reverses it. It asserts, for example, that “[t]he
reason Plaintiff had been dropped from the Apprentice Program on March 29, 2016 was because
he had four accrued absences.” Well, that’s the issue, isn’t it? If DC9 is correct, it raises
questions of why plaintiff was not warned; why he was not notified until August; and why
Bernal continued to work with him throughout the period from March through November as if
plaintiff was an apprentice. DC9 has simply ignored the factual allegations which give rise to an
inference of discrimination.

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27.

I am not saying that plaintiff’s claims will ultimately succeed. The facts

underlying his claims may be wrong, and the required inferences may fail when considered in
light of other facts adduced during discovery. But under the applicable standard, especially in
light of plaintiff’s unrepresented status, the complaint meets the test of plausibility.
28.

DC9’s last point is that plaintiff’s claim under Title 8 of the New York City

Administrative Code should be dismissed for the same reasons his Title VII claim should be
dismissed. Having rejected its challenge to the Title VII claims, this point is moot.
SO ORDERED.

Digitally signed by Brian M.
Cogan
____________________________________
U.S.D.J.
Dated: Brooklyn, New York
August 7, 2017

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