Smith v. New York City Health and Hospitals et al

Filing 4

MEMORANDUM AND ORDER: For the reasons stated in the attached Memorandum and Order, the Court dismisses Plaintiff's Complaint, filed in forma pauperis, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of Pl aintiff's pro se status, the Court grants Plaintiff until April 7, 2025, to file an amended complaint against her former employer, New York City Health and Hospitals. The amended complaint must include a short and plain statement o f facts sufficient to support a plausible claim that her employer discriminated against her in violation of Title VII. If Plaintiff elects to file an amended complaint, it must be captioned "Amended Complaint" and bear the same docket numbe r as this Memorandum and Order, No. 25-CV-1040 (PKC) (TAM). The amended complaint shall replace the original complaint. That is, the amended complaint must stand on its own without reference to the original complaint, and the EEOC Determination and N otice of Rights letter must again be attached to the amended complaint. If Plaintiff fails to file an amended complaint within the time allowed or show good cause for an extension of time, the Clerk of Court shall be directed to enter judgment and cl ose this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v . United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order along with an employment discrimination complaint form to the pro se Plaintiff and note service on the docket. < p>Plaintiff may seek free, confidential, limited scope legal assistance from the Federal Pro Se Legal Assistance Project offered by the City Bar Justice Center by calling [phone] or online at https://www.citybarjusticecenter.org/projects/federal-pro-se-legal-assistance-project . The Court notes that the Federal Pro Se Legal Assistance Project is not part of, or affiliated with, the United States District Court. Ordered by Judge Pamela K. Chen on 3/6/2025. (NS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SEREKIE S. SMITH,
Plaintiff,
MEMORANDUM & ORDER
25-CV-1040 (PKC) (TAM)

- against NEW YORK CITY HEALTH AND
HOSPITALS, SHWEZIN OO, and TIMOTHY
O’LEARY,
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

On February 20, 2025, pro se Plaintiff Serekie Smith filed this action against Defendants,
alleging employment discrimination pursuant to Title VII of the Civil Rights Act. (Dkt. 1
(“Compl.”) at ECF1 1–13.) Plaintiff seeks damages and injunctive relief. (Id. at ECF 11.) The
Court grants Plaintiff’s application to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). For the reasons set forth below, the Court dismisses the Complaint with leave to amend
by April 7, 2025.
BACKGROUND
Plaintiff was employed by Defendant New York City Health and Hospitals between July
1, 2024 and November 4, 2024. (Compl. at ECF 8–9.) Plaintiff alleges that she was subjected to
wrongful discrimination, termination, and retaliation based on her race and color. (Id. at ECF 4,
5, 9, 11.) In support of her claims, Plaintiff describes several incidents that occurred with her
supervisor ShweZin Oo (“Oo”), where Oo allegedly failed to provide support to Plaintiff, assigned
tasks verbally instead of in written form, and criticized Plaintiff’s work performance. (Id. at ECF

Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
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8.) On February 3, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued a
right-to-sue letter. (Id. at ECF 12–13 (EEOC “Determination and Notice of Rights” letter).)
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss an IFP action if the
complaint “is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
To avoid dismissal, “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, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addressing the sufficiency of a
complaint, a court “accept[s] as true all factual allegations and draw[s] from them all reasonable
inferences; but [it is] not required to credit conclusory allegations or legal conclusions couched as
factual allegations.” Hamilton v. Westchester Cnty., 3 F.4th 86, 90–91 (2d Cir. 2021). Courts
“liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to
raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154,
156 (2d Cir. 2017). In addition, the Court should generally not dismiss a pro se complaint without
granting the plaintiff leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
DISCUSSION
Title VII prohibits an employer from discriminating against any individual with respect to
“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)(1). To establish a Title VII
discrimination claim, a plaintiff must show that she is a member of a protected class, she was
qualified for the position she held, and that she suffered an adverse employment action under
circumstances giving rise to an inference of discrimination. Ruiz v. County of Rockland, 609 F.3d
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486, 492 (2d Cir. 2010). “[A]t the initial stage of the litigation . . . the plaintiff does not need
substantial evidence of discriminatory intent,” and need only “sustain a minimal burden of showing
facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of New York, 795
F.3d 297, 311 (2d Cir. 2015) (emphasis in original); see also Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 84 (2d Cir. 2015) (“[A] plaintiff need only give plausible support to a minimal
inference of discriminatory motivation.” (citations omitted)). Nevertheless, “a discrimination
complaint . . . must [still] at a minimum assert nonconclusory factual matter sufficient to nudge its
claims across the line from conceivable to plausible to proceed.” EEOC v. Port Auth. of N.Y. and
N.J., 768 F.3d 247, 254 (2d Cir. 2014) (alterations and internal quotation marks omitted).
To establish a retaliation claim under Title VII, a plaintiff must show that (1) the plaintiff
participated in a protected activity; (2) the employer knew of the plaintiff’s participation in the
protected activity; (3) the employer subjected the plaintiff to an adverse employment action after
the plaintiff participated in the protected activity; and (4) there was a causal connection between
the protected activity and the adverse employment action. Littlejohn, 795 F.3d at 316.
Even under a liberal interpretation, Plaintiff fails to provide facts to support a violation of
Title VII. For example, Plaintiff does not identify her race or color or allege specific instances or
facts suggesting that her former employer took adverse action against her because of her race or
color. Rather, Plaintiff sets forth workplace disputes over job duties, schedules, and work
performance. “Hostility or unfairness in the workplace that is not the result of discrimination
against a protected characteristic is simply not actionable” in federal court. Nakis v. Potter, No. 01CV-10047 (HBP), 2004 WL 2903718, at *20 (S.D.N.Y. Dec. 15, 2004) (citing Brennan v. Metro.
Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)). “Disrespectful, harsh, and unfair treatment in the
workplace alone does not state a claim for violation of federal employment law.”
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Rissman v. Chertoff, No. 08-CV-7352 (DC), 2008 WL 5191394, at *2 (S.D.N.Y. Dec. 12, 2008).
In addition, Plaintiff’s “mere subjective belief that [s]he was discriminated against . . . does not
sustain a . . . discrimination claim.” Sethi v. Narod, 12 F. Supp. 3d 505, 536 (E.D.N.Y. 2014)
(internal citation omitted).

Therefore, Plaintiff’s allegation that she “feel[s] [her

termination] . . . was because of [her] race and color of [her] skin,” (Compl. at ECF 9), is
insufficient to suggest or support the inference that her former employer discriminated against her
in violation of Title VII. Finally, with respect to Plaintiff’s retaliation claim, she has failed to
identify any protected activity in which she participated or any adverse action by Defendant that
was causally connected to Plaintiff’s participation in protected activity.
Plaintiff’s Title VII claims therefore cannot proceed against Defendant New York City
Health and Hospitals as currently alleged for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B). In addition, Title VII does not provide for individual liability; rather, only the
employer may be named. Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004).
Therefore, Plaintiff’s Title VII claims cannot proceed against the two individuals named as
defendants, ShweZin Oo and Timothy O’Leary, for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
CONCLUSION
For the reasons stated above, the Court dismisses Plaintiff’s Complaint, filed in forma
pauperis, 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 until April 7, 2025, to file an amended complaint against
her former employer, New York City Health and Hospitals. The amended complaint must include
a short and plain statement of facts sufficient to support a plausible claim that her employer
discriminated against her in violation of Title VII. If Plaintiff elects to file an amended complaint,
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it must be captioned “Amended Complaint” and bear the same docket number as this
Memorandum and Order, No. 25-CV-1040 (PKC) (TAM). The amended complaint shall replace
the original complaint. That is, the amended complaint must stand on its own without reference
to the original complaint, and the EEOC Determination and Notice of Rights letter must again be
attached to the amended complaint.
If Plaintiff fails to file an amended complaint within the time allowed or show good cause
for an extension of time, the Clerk of Court shall be directed to enter judgment and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore in forma pauperis status
is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order along
with an employment discrimination complaint form to the pro se Plaintiff and note service on the
docket.
Plaintiff may seek free, confidential, limited scope legal assistance from the Federal Pro
Se Legal Assistance Project offered by the City Bar Justice Center by calling [phone] or
online at https://www.citybarjusticecenter.org/projects/federal-pro-se-legal-assistance-project.
The Court notes that the Federal Pro Se Legal Assistance Project is not part of, or affiliated with,
the United States District Court.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 6, 2025
Brooklyn, New York

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