Davis et al v. New York City Department of Corrections et al

Filing 6

MEMORANDUM & ORDER: Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this decision. For the reasons discussed in the attached Memorandum and Order, the Complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of Plaintiff's pro se status, the Court grants Plaintiff thirty (30) days to amend the Complaint in order to state a claim upon which relie f can be granted against the City of New York. Plaintiff is reminded that an amended complaint completely replaces the original Complaint. The amended complaint must be captioned, "Amended Complaint," and shall bear the same docket numb er as this order. Plaintiff should also attach to any amended complaint a copy of the EEOC charge. No summons shall issue at this time, and all further proceedings shall be stayed for thirty (30) days. SO ORDERED by Judge Margo K. Brodie, on 11/22/2017. (Copy of this Order and the attached copies of all unreported cases cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------KEVIN DAVIS,
Plaintiff,
v.

MEMORANDUM & ORDER
17-CV-3863 (MKB)

NEW YORK CITY DEPARTMENT OF
CORRECTIONS, NEW YORK CITY
DEPARTMENT OF INVESTIGATION,
CORRECTION OFFICERS BENEVOLENT
ASSOCIATION, INC., DINA SIMONS, First
Deputy Commissioner, GREGORY KUCZINSKI,
Deputy Commissioner of Investigation, HEIDI
GROSSMAN, Deputy Commissioner for Legal
Matters/General Counsel, BECKY SCOTTFEASTER, Warden – Commanding Officer of
E.M.T.C. Facility, JONELLE SHIVRAJ, Deputy
Warden of Security, RAJIN SHIVRAJ, Correction
Officer Investigator, MALIA GREATHOUSE,
Correction Investigator, and YOMAIRA KELLEY,
Correction Officer Investigator,
Defendants.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Kevin Davis, proceeding pro se, filed the above-captioned action on June 23,
2017 against Defendants the New York City Department of Corrections, New York City
Department of Investigation, Correction Officers Benevolent Association, Inc., Dina Simons,
Gregory Kuczinski, Heidi Grossman, Becky Scott-Feaster, Jonelle Shivraj, Rajin Shivraj, Malia
Greathouse and Yomaira Kelley. Plaintiff alleges violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. (“ADEA”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq. (“ADA”), in connection with the termination of his employment at the New York City
Department of Corrections (“DOC”). (Compl., Docket Entry No. 1.) Plaintiff attaches to the
Complaint a letter from the Equal Employment Opportunity Commission (“EEOC”) dated June
16, 2017, notifying him of his right to sue in federal court. (Compl. at 28.) 1 Plaintiff’s request to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this
decision. For the reasons discussed below, the Court dismisses the Complaint. Plaintiff is
directed to file an amended complaint within thirty (30) days of the date of this Memorandum
and Order.
I.

Background
The Court assumes the truth of the factual allegations in the Complaint for the purpose of

this Memorandum and Order. Plaintiff has post-traumatic stress disorder (“PTSD”). (Compl. at
6.) Plaintiff was employed as a corrections officer with DOC for approximately one year and
two months, and previously served in the military. (Id. at 7.) Plaintiff alleges that while at DOC,
he was “sexually abused, hazed, and assaulted by correction staff.” (Id. at 17.) DOC staff would
“rub up against” Plaintiff, make inappropriate sexual comments and jokes, and “walk by [him]
and touch [his] private areas.” (Id. at 24.) In one incident, co-workers approached Plaintiff
while he was changing in the locker room, pulled his underwear down and “grabbed” him. (Id.)
Plaintiff also alleges that during his employment with DOC, his assigned locker “kept getting
defaced,” and in one instance, other officers wrote “GET OUT BITCH” on his locker. (Id. at 11,
19.) Plaintiff made requests to be reassigned from certain areas of the facility after he was
“splashed . . . assaulted [and] . . . repeatedly threatened” by inmates. (Id. at 19.) However, upon

1

Because the Complaint is not consecutively paginated, the Court refers to the electronic
document filing system (“ECF”) pagination.
2

making such requests, the supervising “control room Captain” “would laugh and say [to
Plaintiff] I didn’t receive that memo you’re going there anyway go report it like you report
everything else.” (Id.) Plaintiff claims that he endured a “toxic work environment,” (id. at 20),
and due to his “refus[al] to get with the program” and “hop on board the corruption train,” “both
the inmates and officers . . . set out to . . . ‘run [him] out of the jail by any means necessary,’”
(id. at 24.)
On October 6, 2016, after Plaintiff returned from military leave and vacation, Deputy
Warden of Administration Anastasia Henderson-Blackmon informed Plaintiff that his
employment with DOC was being terminated. (Id. at 7.) Plaintiff requested details from various
personnel at DOC regarding the basis of his termination, but was not provided any further
information. (Id.) Plaintiff alleges that the Department of Labor (“DOL”) 2 told him that the
basis for his termination was alleged “sexual abuse” of an inmate and failure to disclose a
“domestic incident” that took place while Plaintiff was a student and NYPD Auxiliary Officer at
the State University of New York at Oswego (“SUNY Oswego”). (Id. at 11.) Plaintiff denies
both allegations. (Id.) Plaintiff asserts that “DOC acted in bad faith without reason justifying the
termination,” that DOC is “conducting illegal and unfair labor practices,” (id. at 8), and that he
was “framed,” (id. at 15). Plaintiff seeks an order reinstating his employment, and also seeks
back-pay, as well as damages for pain and suffering. (Id. at 26.)
II.

Discussion
a. 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
2

Plaintiff does not specify when the DOL told him of the alleged basis for his
termination.
3

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)); see also Pension Ben. Guar. Corp.
ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d
705, 717–18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed
true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” 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).
b. Plaintiff cannot assert claims against the New York City Department of
Corrections and Department of Investigation
As an initial matter, Plaintiff may not assert claims against the New York City
Department of Corrections and Department of Investigation, because such claims must be
brought against the City of New York. Section 396 of the New York City Charter provides that
“[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be
brought in the name of the City of New York and not in that of any agency, except where
otherwise provided by law.” N.Y. City Charter, chap. 17 § 396. This provision “has been
4

construed to mean that New York City departments, as distinct from the City itself, lack the
capacity to be sued.” Ximines v. George Wingate High Sch., 516 F.3d 156, 159–60 (2d Cir.
2008) (per curiam); see also Gordon v. City of New York, No. 09-CV-3908, 2009 WL 3878241,
at *2 (E.D.N.Y. Nov. 18, 2009) (“To the extent plaintiff seeks to sue the New York City
Department of Corrections, that claim also fails. As an agency of the City of New York, the
New York City Department of Corrections cannot be sued independently.” (first citing Lauro v.
Charles, 219 F.3d 202, 205 n.2 (2d Cir. 2000); and then citing Bailey v. N.Y.C. Police Dep’t, 910
F. Supp. 116, 117 (E.D.N.Y. 1996); and then citing N.Y.C. Chapter, Ch. 17, § 396)); Artec
Constr. and Dev. Corp. v. New York City Dep’t of Hous. Pres. and Dev., No. 15-CV-9494, 2017
WL 782911, at *4 (S.D.N.Y. Feb. 27, 2017) (finding that the New York City Department of
Investigation is an agency that cannot be sued); Morris v. Katz, No. 11-CV-3556, 2011 WL
3918965, at *5–6 (E.D.N.Y. Sept. 4, 2011) (same).
c.

Title VII, the ADA and the ADEA do not impose liability against individual
defendants

The Complaint names as defendants various individuals who appear to be employed with
New York City’s Department of Corrections or Department of Investigation. However, Title
VII, the ADA and the ADEA do not provide for the liability of individual defendants. 3

3

The Second Circuit has recognized that plaintiffs may assert discrimination claims
pursuant to section 1983 against individuals for violations of the Fourteenth Amendment’s equal
protection clause. See Demoret v. Zegarelli, 451 F.3d 140, 150 (2d Cir. 2006) (“[Section] 1983
and the Equal Protection Clause protect public employees from various forms of discrimination,
including hostile work environment and disparate treatment, on the basis of gender. Once action
under color of state law is established, the analysis for such claims is similar to that used for
employment discrimination claims brought under Title VII, the difference being that a [section]
1983 claim, unlike a Title VII claim, can be brought against individuals.” (citations omitted));
see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 81–82 (2d Cir. 2015) (holding
that plaintiffs may assert claims under section 1983 for acts of retaliation for complaints of
discrimination). Plaintiff may therefore be able to assert claims against the individual defendants
5

Mussallihattillah v. McGinnis, 684 F. App’x 43, 47 (2d Cir. 2017) (holding that the plaintiff’s
Title VII claims “against the individual defendants fail as a matter of law” (citing Patterson v.
Cty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004))); Cayemittes v. City of N.Y. Dep’t of Hous.
Pres. and Dev., 641 F. App’x 60, 61–62 (2d Cir. 2016) (“Title VII does not provide for
individual liability.”); see also Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011) (holding that
there is no individual liability under the ADEA); see also Spiegel v. Schulmann, 604 F.3d 72,
79–80 (2d Cir. 2010) (holding that the retaliation provision of the ADA does not provide for
individual liability). 4 Therefore, Plaintiff fails to allege claims against Defendants Simons,

under section 1983 for the same allegations that form the basis of his Title VII claim. However,
even if the Court were to liberally construe Plaintiff’s claim against the individual defendants as
one brought under section 1983, it would fail for the same reasons that Plaintiff fails to state a
claim under Title VII, discussed further below. See Feingold v. New York, 366 F.3d 138, 159
(2d Cir. 2004) (“The elements of [an equal protection claim brought under section 1983] are
generally the same as the elements of [a Title VII claim] and the two must stand or fall together.”
(first citing Annis v. Cty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); and then citing
Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996))); but see Patterson v. Cty. of Oneida, N.Y.,
375 F.3d 206, 225 (2d Cir. 2004) (discussing differences between discrimination claims brought
under Title VII and section 1983). In addition, as section 1983 does not permit the imposition of
liability premised on the theory of respondeat superior, Plaintiff would need to allege that each
individual defendant was personally involved in the violation of his federal rights, and the
Complaint contains no such allegations. See id. at 226 (citations omitted).
4

Although the Second Circuit has held that there is no individual liability for the ADA’s
retaliation provision, Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per curiam), it has
not reached the question with respect to other provisions of the ADA pertaining to employment
discrimination. However, many district courts in this Circuit have determined that other ADA
claims alleging employment discrimination likewise do not provide for individual liability.
Therefore, with the exception of claims brought under Title II of the ADA for prospective
injunctive relief, see Harris v. Mills, 572 F.3d 66, 72–73 (2d Cir. 2009), courts have held that
plaintiffs may not assert ADA claims against individual defendants. Castro v. City of New York,
24 F. Supp. 3d 250, 259 (E.D.N.Y. 2014) (collecting cases); see also Gomez v. N.Y.C. Police
Dep’t, No. 15-CV-4036, 2016 WL 3212108, at *7 (S.D.N.Y. June 7, 2016) (“[T]here is no
individual liability under the ADA.” (citing Lane v. Maryhaven Ctr. of Hope, 944 F. Supp. 158,
162 (E.D.N.Y. 1996))); Pierce v. Fordham Univ., Inc., No. 15-CV-4589, 2016 WL 3093994, at
*6 (S.D.N.Y. June 1, 2016) (noting that “[i]t is well established that there is no individual
6

Kuczinski, Grossman, Scott-Feaster, Jonelle Shivraj, Rajin Shivraj, Greathouse and Kelley.
d. Plaintiff fails to state a claim under Title VII
Liberally construing Plaintiff’s Complaint, the Court understands Plaintiff to be
asserting claims under Title VII for discrimination, hostile work environment and retaliation. 5
See Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding that courts must liberally
construe papers submitted by pro se litigants “to make the strongest arguments they suggest”).
For the reasons discussed below, Plaintiff has failed to state a claim under all three theories.
i.

Discrimination

Title VII requires that “a plaintiff must first establish a prima facie case of discrimination
by showing that: ‘(1) []he is a member of a protected class; (2) []he is qualified for h[is] position;
(3) []he suffered an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d
Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)). At the
pleading stage, a plaintiff must allege facts that plausibly support a finding that he suffered an

liability under the ADA” (alteration in original) (quoting Nelson v. City of New York, No. 11CV-2732, 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013))).
5

While Plaintiff attached the right-to-sue letter issued by the EEOC to the Complaint, he
did not attach the initial charge filed with the EEOC, and the Court is therefore unable to
determine which claims were included in his EEOC charge. See Holtz v. Rockefeller & Co., Inc.,
258 F.3d 62, 82–83 (2d Cir. 2001) (“[A] plaintiff typically may raise in a district court complaint
only those claims that either were included in or are ‘reasonably related to’ the allegations
contained in her EEOC charge.” (citing, inter alia, Butts v. City of New York Dep’t of Hous.
Pres. and Dev., 990 F.2d 1397, 1401–02 (2d Cir. 1993))). Nevertheless, the Court will address
the merits of Plaintiff’s claims, because “the weight of precedent demonstrates that
administrative exhaustion is not a jurisdictional requirement; rather, it is merely a precondition
of suit and, accordingly, it is subject to equitable defenses.” Fowlkes v. Ironworkers Local 40,
790 F.3d 378, 385 (2d Cir. 2015) (emphasis in original) (holding that, while the question of
whether the plaintiff properly exhausted his claims was “not free from uncertainty,” “this
ambiguity has no bearing on the subject matter jurisdiction of the District Court.” (citations
omitted)).
7

adverse employment action and provide “at least minimal support for the proposition that the
employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297,
311 (2d Cir. 2015); see Luka v. Bard Coll., --- F. Supp. 3d ---, ---, 2017 WL 2839641, at *4
(S.D.N.Y. June 29, 2017).
Here, Plaintiff fails to state a claim of discrimination under Title VII because the
Complaint is devoid of any facts suggesting that Plaintiff’s termination was motivated in any
way by discriminatory intent. Plaintiff has indicated on the court form provided to pro se
litigants the various bases upon which he alleges discrimination, including his race, color, gender
or sex, religion, national origin, age and PTSD disability. (Compl. at 6.) However, the
substance of Plaintiff’s allegations characterize the bases for his termination as “lies,” (id. at 11),
“game [] playing,” (id. at 17) and “false narrative,” (id. at 18). The Complaint fails to allege
facts suggesting that Plaintiff’s termination was motivated by an intent to discriminate based
upon his membership within a class protected by Title VII. See Vega, 801 F.3d at 84–86.
Without any such allegations, the Complaint fails to state a claim of discrimination under Title
VII.
ii. Hostile work environment
To state a hostile work environment claim, a plaintiff must “show that ‘the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Shultz v. Shearith, 867 F.3d 298, 309 (2d Cir. 2017) (quoting Rivera v.
Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014)); Littlejohn, 795 F.3d at
320–21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “This standard has both
objective and subjective components: the conduct complained of must be severe or pervasive

8

enough that a reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Littlejohn, 795 F.3d at 321 (quoting
Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014)). “It is axiomatic that mistreatment at
work . . . through subjection to a hostile environment . . . is actionable under Title VII only when
it occurs because of an employee’s sex, or other protected characteristic.” Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
79–80 (1998)).
As with Plaintiff’s discrimination claim, Plaintiff’s hostile work environment claim fails
because the Complaint does not allege that the conduct creating the hostile work environment
was motivated by any discriminatory intent. Plaintiff alleges that he was subject to mistreatment
by other correction staff, who defaced his locker, and “sexually abused, hazed and assaulted”
him. (Compl. at 11, 17, 19, 20, 24.) Assuming that such facts are sufficient to allege a hostile
work environment, Plaintiff fails to allege any relationship between such conduct and his status
as a member of a protected class. See Tiffany v. Dzwonczyk, 696 F. App’x 7, 9 (2d Cir. 2017)
(affirming dismissal of hostile work environment claim where the plaintiff “fail[ed] to allege any
facts suggesting a relationship between the adverse actions and his membership in a Title VII
protected class”); see also Gordon v. City of New York, 612 F. App’x 629, 632 (2d Cir. 2015)
(same). Therefore, Plaintiff has not stated a hostile work environment claim under Title VII.
iii. Retaliation
Title VII prohibits retaliation against an employee who “has opposed any practice [that
is] made an unlawful employment practice” under Title VII. 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;

9

and (4) a causal connection between the protected activity and the adverse employment action.”
Littlejohn, 795 F.3d at 316 (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). As with
other claims analyzed under the framework announced in McDonnell Douglas Corporation v.
Green, at the pleading stage, the allegations need only give “plausible support to the reduced
prima facie requirements.” Id. “[F]or a retaliation claim to survive . . . a motion to dismiss, the
plaintiff must plausibly allege that: (1) [the] defendants discriminated — or took an adverse
employment action — against [him], (2) ‘because’ [he] has opposed any unlawful employment
practice.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271 (2d Cir. 2016) (quoting
Vega, 801 F.3d at 90).
Plaintiff has not met his burden to state a claim of retaliation under Title VII. Plaintiff
alleges that he was “run . . . out of the jail” by other corrections officers and inmates after he
“refused to get with the program” and “hop on board the corruption train.” (Compl. at 24.)
However, Plaintiff has not alleged that he engaged in any protected activity, nor has he provided
facts suggesting that his employment was terminated because he engaged in such activity. 6

6

To the extent Plaintiff alleges that other allegations in the Complaint form the basis of
his retaliation claim, these allegations similarly fail to state a claim. Plaintiff alleges that “the
control room Captain” refused to reassign him to a separate area of the facility after he was
“splashed . . . assaulted [and] . . . repeatedly threatened.” (Compl. at 19.) Plaintiff further
alleges that, upon making such requests, the Captain “would laugh and say I didn’t receive that
memo you’re going there anyway go report it like you report everything else.” (Id.) A refusal to
grant a transfer or reassignment request may in some instances constitute an adverse employment
action for purposes of a Title VII retaliation claim if there is “objective indicia that the transfer
denial created a materially significant disadvantage in the working conditions of the aggrieved
employee.” Beyer v. Cty. of Nassau, 524 F.3d 160, 164 (2d Cir. 2008). However, the Complaint
does not contain sufficient details regarding such reports, including what Plaintiff reported, when
he reported it, to whom it was reported, and when any adverse action occurred. Therefore, even
construing these allegations as the basis of Plaintiff’s retaliation claim, Plaintiff has not pled
facts alleging that he was retaliated against “because he opposed any unlawful employment
practice.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271 (2d Cir. 2016) (quoting
Vega, 801 F.3d at 90).
10

Plaintiff therefore fails to state a claim of retaliation under Title VII. See Vega, 801 F.3d at 90;
Littlejohn, 795 F.3d at 319; Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001); see also Lovell
v. Consol. Edison of N.Y., Inc., No. 14-CV-7592, 2015 WL 2250374, at *4 (E.D.N.Y. May 11,
2015) (dismissing a complaint where the plaintiff made “only bald assertions that he was
retaliated against, without providing any factual allegations indicating that there was a causal
connection between a protected activity and the adverse action,” and observing that the “plaintiff
has not alleged that he engaged in any protected activity” (citations omitted)).
e.

Plaintiff fails to state a claim under the ADA

To establish a prima facie case of discrimination under the ADA, a plaintiff must show
that “(1) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of
the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the
essential functions of the job with or without reasonable accommodation; (4) she suffered an
adverse employment action; and (5) the adverse action was imposed because of her disability.”
Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d. Cir. 2015); see also Dooley v. Jet Blue
Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015) (quoting Davis, 804 F.3d at 235) (outlining
the requirements of a prima facie case under the ADA). The ADA defines “disability” as “(A) a
physical or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Major life activities include standing, lifting, bending,
speaking, and working. Id. § 12102(2)(A); see also Dooley, 636 F. App’x at 21; Parada v.
Banco Industrial De Venezuela, C.A., 753 F.3d 62, 66 (2d Cir. 2014).
Although a plaintiff need not specifically plead each and every element of a prima facie
case of discrimination to survive a motion to dismiss, the standard provides a framework for
analyzing whether the plaintiff’s claims for relief are plausible. See Vega, 801 F.3d at 84–87. At
11

the pleading stage, to state a claim of employment discrimination under the ADA, a plaintiff
must plausibly allege that (1) her employer took an adverse action against her, and (2) the
disability or perceived disability was a “motivating factor” in the decision. Id. at 87; see also
Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (“To state a claim for
discrimination under the ADA, a plaintiff must allege facts which plausibly suggest, inter alia,
that she ‘suffered [an] adverse employment action because of [her] disability.’” (quoting
Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001))). “A plaintiff suffers an
adverse employment action when she experiences a materially adverse change in the terms and
conditions of employment.” Dechberry v. N.Y.C. Fire Dep’t, 124 F. Supp. 3d 131, 147
(E.D.N.Y. 2015) (citation and internal quotation marks omitted). Employment actions “deemed
sufficiently disadvantageous to constitute an adverse employment action include a termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material responsibilities, or other indices
unique to a particular situation.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)
(alteration and internal quotation marks omitted); see also Fahrenkrug v. Verizon Servs. Corp.,
652 F. App’x 54, 56 (2d Cir. 2016) (citing Beyer, 524 F.3d at 163) (explaining what conduct
constitutes an adverse employment action).
Plaintiff fails to state a claim under the ADA. “[T]he [C]omplaint alleges no facts
indicating that [Plaintiff’s] PTSD . . . impaired any life activities,” Soules v. Town of Oxford, 669
F. App’x 54, 56 (2d Cir. 2016), nor does it contain any allegation that Plaintiff was terminated
because of his alleged disability or perceived disability, see Giambattista, 584 F. App’x at 25
(affirming dismissal of ADA discrimination claim where “the complaint did not plausibly allege
that the [employer] discriminated against [the plaintiff] because of a perceived mental

12

impairment, ‘nor did it set forth any factual circumstances from which a disability-based
motivation for such an action might be inferred.’” (alterations omitted) (quoting Patane v. Clark,
508 F.3d 106, 112 (2d Cir. 2007))); see also Vega, 801 F.3d at 87 (“[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.” (citing Littlejohn, 795
F.3d at 310); see also Biro v. Conde Nast, 807 F.3d 541, 546–47 (2d Cir. 2016) (affirming
dismissal of a complaint because the plaintiff’s allegations against the defendants were
conclusory and insufficient); Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 638
F. App’x 100, 103 (2d Cir. 2016) (affirming dismissal of a plaintiff’s claims because he failed to
“include any factual allegations to support” the claims). For these reasons, Plaintiff has not
stated a claim under the ADA.
f.

Plaintiff fails to state a claim under the ADEA

Under the ADEA, an employer may not “fail or refuse to hire or . . . discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1); see also Chapotkat v. Cty. of Rockland, 605 F. App’x 24, 25 (2d Cir. 2015) (citing
29 U.S.C. § 623(a)(1)). Discrimination claims under the ADEA are subject to the three-stage
McDonnell Douglas burden-shifting framework. Chapotkat, 605 F. App’x at 26 (citing
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (applying McDonnell
Douglas framework to ADEA age discrimination claim)). To establish a prima facie case of age
discrimination under the ADEA, a plaintiff must demonstrate: “(1) that she was within the
protected age group, (2) that she was qualified for the position, (3) that she experienced adverse
employment action, and (4) that such action occurred under circumstances giving rise to an
13

inference of discrimination.” Gorzynski, 596 F.3d at 107 (citation omitted); see also Bucalo v.
Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (stating elements of an
ADEA discrimination claim). To be within the age group protected by the ADEA, a plaintiff
must have been over forty years old at the time that the relevant discriminatory conduct took
place. See 29 U.S.C. § 631(a); see also Feldman v. Nassau Cty., 434 F.3d 177, 180 (2d Cir.
2006) (“The ADEA generally protects individuals over forty from age discrimination in
employment.” (citations omitted)).
Plaintiff fails to state a claim under the ADEA because he is not within the age group
protected under the statute. Plaintiff indicates that he was born in 1994. (Compl. at 6).
Therefore, Plaintiff was under forty years old at the time the relevant alleged conduct occurred,
and his allegations thus do not state a claim under the ADEA. See 29 U.S.C. § 631(a); see also
Spain v. Ball, 928 F.2d 61, 62–63 (2d Cir. 1991) (per curiam).
g. Plaintiff fails to state a claim under the Uniformed Services Employment and
Reemployment Rights Act
To the extent Plaintiff alleges that his employment was terminated based upon his
military status, the Court will liberally construe his claim as arising under the Uniformed
Services Employment and Reemployment Rights Act (“USERRA”). 38 U.S.C. § 4311(a); 7 see
also Lovell, 2015 WL 2250374 at *4–5 (construing a complaint as asserting claims under the

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Title 38 U.S.C. § 4311(a) states:
(a) A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an obligation to
perform service in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of that
membership, application for membership, performance of service,
application for service, or obligation.
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USERRA in light of a pro se plaintiff’s military status). The USERRA prohibits employment
discrimination on the basis of an employee’s membership and service in the uniform services of
the United States and establishes certain reemployment rights following such service. “The
purpose of USERRA is to encourage military service ‘by eliminating or minimizing the
disadvantages to civilian careers’; ‘to minimize the disruption to the lives’ of service members
and their employers ‘by providing for the prompt reemployment’ of service members; and ‘to
prohibit discrimination’ against service members.” Serricchio v. Wachovia Sec. LLC, 658 F.3d
169, 174 (2d Cir. 2011) (quoting 38 U.S.C. § 4301(a)).
To state a claim under the USERRA, a plaintiff must plead “facts upon which it could
plausibly be inferred that his military service or any protected activity was a ‘substantial or
motivating factor’” in the adverse employment action taken against him. Hunt v. Klein, 476 F.
App’x 889, 891 (2d Cir. 2012) (quoting NLRB v. Transp. Mgmt., 462 U.S. 393, 401 (1983)).
Plaintiff fails to state a claim under the USERRA because the Complaint contains no
allegations from which it could plausibly be inferred that his military status was considered in
the decision to terminate his employment. Plaintiff makes no mention of his military status aside
from stating that he was informed of his termination upon returning to work from military leave
and vacation. (Compl. at 7–8.) The Court recognizes that courts have considered proximity in
time between military activity and the adverse employment action as one factor in evaluating
claims of discriminatory motivation. See, e.g., Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1014
(Fed. Cir. 2001) (discussing proximity in time as one of many factors from which discriminatory
motivation may be reasonably inferred); see also Woodward v. N.Y. Health and Hosp. Corp., 554
F. Supp. 2d 329, 348–49 (E.D.N.Y. 2009) (discussing factors mentioned in Sheehan). However,
nowhere in the Complaint does Plaintiff make even a conclusory allegation that he was

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terminated because of his military status, much less plead facts supporting a plausible inference
of discriminatory motivation. Therefore, Plaintiff has not adequately pled a claim of
discrimination under the USERRA. 8 See Hunt v. Klein, 2011 WL 651876, at *1, 3 (S.D.N.Y.
Feb. 10, 2011) (dismissing a complaint because the plaintiff “merely describe[d] various
disciplinary actions taken against him, and note[d] that Plaintiff is a military service member,” but
did not allege facts suggesting that he was disciplined because of his military status), aff’d, 476 F.
App’x 889 (2d Cir. 2012).
III.

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). In light of Plaintiff’s pro se status, the Court grants
Plaintiff thirty (30) days to amend the Complaint in order to state a claim upon which relief can
be granted against the City of New York. Plaintiff is reminded that an amended complaint
completely replaces the original Complaint. The amended complaint must be captioned,
“Amended Complaint,” and shall bear the same docket number as this order. Plaintiff should
also attach to any amended complaint a copy of the EEOC charge. No summons shall issue at
this time, and all further proceedings shall be stayed for thirty (30) days.

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In addition to acts of discrimination, the “USERRA further prohibits an employer from
taking an adverse employment action against any person in retaliation for enforcing his
USERRA rights.” Caines v. City of New York, No. 13-CV-676, 2015 WL 13021892, at *4
(S.D.N.Y. July 8, 2015) (citing 38 U.S.C. § 4311(b)), aff’d, 649 F. App’x 74 (2d Cir. 2016).
However, like retaliation claims under Title VII, such claims must include allegations suggesting
that the plaintiff was engaged in a protected activity, and that there was some causal connection
between the protected activity and the adverse employment action. See Kassel v. City of
Middletown, --- F. Supp. 3d. ---, ---, 2017 WL 4350281, at *13 (S.D.N.Y. Sept. 28, 2017);
Lapaix v. City of New York, No. 13-CV-7306, 2014 WL 3950905, at *5–6 (S.D.N.Y. Aug. 12,
2014); Fink v. City of New York, 129 F. Supp. 2d 511, 527 (E.D.N.Y. 2001). Therefore, to the
extent that Plaintiff’s allegations could be construed as asserting a retaliation claim under the
USERRA, such a claim would fail for the same reasons as Plaintiff’s Title VII retaliation claim.
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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).

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: November 22, 2017
Brooklyn, New York

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