Troccoli v. Target Store # 1108
Filing
5
ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, plaintiff's complaint is sua sponte dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief. Plaintiff is granted leave to amend his complaint to cure the pleading deficiencies noted herein provided that any such amended complaint is filed on or before June 17, 2013, or the complaint will be deemed dismissed with prejudice and ju dgment shall enter in favor of defendant. 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 Sandra J. Feuerstein on 5/13/2013. C/M (Valle, Christine)
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
----------------------------------------------------)(
*
JARED TROCCOLI,
MAY 132013
*
LONG ISLAND OFFICE
Plaintiff,
ORDER
13-CV-00627 (SJF)(WDW)
-againstTARGET STORE# 1108,
Defendant.
----------------------------------------------------)(
FEUERSTEIN, District Judge:
On January 29, 2013,pro se plaintiff Jared Troccoli ("plaintiff') filed a complaint against
his former employer, Target Store # 1108 ("defendant"), alleging employment discrimination and
retaliation, accompanied by an application to proceed in forma pauperis. Since plaintiffs financial
status, as set forth in his declaration in support of his application to proceed in forma pauperis,
qualifies him to commence this action without prepayment of the filing fees, see 28 U.S.C. §
1915(a)(l), his application to proceed informapauperis is granted. However, for the reasons set
forth below, plaintiffs complaint is sua sponte dismissed with leave to amend.
I.
Background
Plaintiff filed the instant complaint on the Court's employment discrimination complaint
form, but he does not indicate the nature of the alleged employment discrimination or the statute
allegedly violated by defendant. (See Compl. at 1). Plaintiff alleges only that he suffered
retaliation and was "accused of sexual harrassment [sic]," but he fails to plead facts supporting any
inference that such conduct by the defendant was based on a protected characteristic, i.e., race,
color, gender, religion, national origin, age or disability. (See Compl.
at~~
7-8). The only factual
allegations in the complaint are that plaintiff was "accused of stealing $243.00 from [defendant]
against false allegations" and that he was "accused of sexual harassment ... because [he] made
music CDs for [the] Human Resources Manager[] and [he] wrote 'Love Jared' at the bottom of the
letter .... " (Camp!.,
II.
at~
8).
Discussion
A.
Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action
where it is satisfied that the action "(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." An action is "frivolous" when either:(!) "the 'factual contentions are clearly baseless,'
such as when allegations are the product of delusion or fantasy"; or (2) "the
claim is 'based on an indisputably meritless legal theory."' Livingston v. Adirondack Beverage
Co., 141 F.3d 434,437 (2d Cir. 1998) (internal citation omitted). It is axiomatic that prose
complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is
required to read the plaintiffs prose complaint liberally and interpret it raising the strongest
arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed.2d 1081
(2007) (citations omitted); Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), cert. denied, 133
S. Ct. 466, 184 L. Ed. 2d 261 (2012).
At the pleadings stage of the proceeding, the Court must assume the truth of"all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d Ill, 123 (2d Cir. 2010), affd, 133 S. Ct. 1659 (Apr. 17, 2013) (citing Ashcroft v.
Iqbal. 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed.2d 868 (2009)). A complaint must
plead sufficient facts to "state a claim to relief that is plausible on its face." Bell At!. Coro. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed.2d 929 (2007). "A claim has facial
2
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." Iqbal, 556 U.S. at 678, 129 S. Ct.
at 1949 (citations omitted).
The plausibility standard does not impose an across-the-board, heightened fact pleading
standard, Twombly, 550 U.S. at 570, 127 S. Ct. 1955, nor does it "require[] a complaint to include
specific evidence [or] factual allegations in addition to those required by Rule 8." Arista Records,
LLC v. Doe 3. 604 F.3d 110, 119 (2d Cir. 2010). As the Iqbal court explained, the plausibility
standard "does not require detailed factual allegations, but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; see
also Pension Benefit Guarantv Com. ex rei. St. Vincent Catholic Medical Centers Retirement Plan
v. Morgan Stanley Investment Management Inc., 712 F.3d 705 (2d Cir. 2013) (accord).
B.
Employment Discrimination Statutes
I.
Discrimination
Title VII of the Civil Rights Act of 1964 ("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)(l). The Age Discrimination in Employment Act ("ADEA'')
prohibits an employer from discriminating against any individual with respect to "compensation,
terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. §
623(a)(l). The Americans with Disabilities Act ("ADA") prohibits an employer from
discriminating against "a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement or discharge of employees, employee compensation, job
3
training and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a).
"The sine qua non of a *
* * discriminatory action claim under Title VII [or the ADEA or
ADA] is that the discrimination must be because of[a protected characteristic]." Patane v. Clark,
508 F.3d 106, 112 (2d Cir. 2007) (emphasis in original) (quotations and citation omitted); see also
Ricci v. DeStefano, 557 U.S. 557,577, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009) ("A disparatetreatment plaintiff must establish that the defendant had a discriminatory intent or motive for taking
a job related action." (quotations and citation omitted)); Kentucky Retirement Systems v. EEOC,
554 U.S. 135, 141, 128 S. Ct. 2361, 171 L. Ed. 2d 322 (2008)("[W]here •
age-related 'disparate treatment'
* * a plaintiff claims
* * * the plaintiff must prove that age actually motivated the
employer's decision." (emphasis in original) (quotations and citation omitted)); McElwee v.
County of Orange, 700 F.3d 635, 640 (2d Cir. 2012) ("To assert a claim under Title II of the ADA
* * *, a plaintiff must demonstrate that * *
* he was * * * discriminated against by the defendant
because ofhis disability." (emphasis added)). "It is axiomatic that mistreatment at work ... is
actionable under Title VII [or the ADEA or ADA] only when it occurs because of an employee's *
**protected characteristic." Patane, 508 F.3d at 112 (quoting Brown v. Henderson, 257 F.3d 246,
252 (2d Cir. 2001)); see also Rivera v. Rochester Genesee Regional Transp. Authority, 702 F.3d
685, 694 (2d Cir. 2012) (accord); Baur v. Rosenberg, Mine, Falkoff & Wolff, No. 07 Civ. 8835,
2008 WL 5110976, at* 5 (S.D.N.Y. Dec. 2, 2008) ("The ADEA is not violated simply because an
employer misjudges the quality of its employee or an employee feels misunderstood.") Although
plaintiff is not required "to plead specific facts to show a prima facie case of discrimination * * *
dismissal is nevertheless appropriate where the plaintiff failed to allege even the basic elements of
a discriminatory action claim." Maldonado v. George Weston Bakeries, 441 Fed. Appx. 808, 80809 (2d Cir. Dec. 19, 2011) (summary order); see also Patane, 508 F.3d at 112 n. 3 (affirming
4
dismissal where the plaintiff "failed to allege even the basic elements of a discriminatory action
claim."); Jackson v. NYS Dept. ofLabor, 709 F. Supp. 2d 218,229 (S.D.N.Y. 2010), appeal
dismissed, 431 Fed. Appx. 21 (2d Cir. June 15, 20 II) (holding that although the plaintiff"need not
allege each element of a prima facie claim to survive a motion to dismiss,
* * * the facts alleged at
the very least must indicate the possibility that she was discriminated against on the basis of [a
protected characteristic].")
Since, inter alia, plaintiff fails to plead any facts that would create an inference that any of
the challenged conduct by defendant, i.e., the leveling of accusations of theft and sexual harassment
against plaintiff, was based upon a protected characteristic, the complaint fails to state a
discrimination claim under any of the employment discrimination statutes. Accordingly, plaintiff's
discrimination claims are sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to
state a claim for relief.
2.
Retaliation
All three (3) employment discrimination statutes also prohibit an employer from
discriminating against any individual because such individual has opposed any act or practice made
unlawful by the respective statute, i.e., because such individual has opposed an act or practice of
discrimination based upon race, color, religion, sex, national origin, age or disability, or because
such individual has made a charge, testified, assisted or participated in any manner in an
investigation, proceeding or hearing under the respective statute. 42 U.S.C. §§ 2000e-3 (Title VII)
and 12203(a) (ADA) and 29 U.S.C. § 623(d) (ADEA).
"To make out a prima facie case of retaliation, a plaintiff must demonstrate that (I) []he
participated in protected activity; (2) the employer was aware of that activity; (3) the employee
5
suffered a materially adverse action; and (4) there was a causal connection between the protected
activity and that adverse action." Kelly v. Howard I. Shapiro & Associates Consulting Engineers.
P.C.,- F.3d - , 2013 WL 1776646, at* 3 (2d Cir. Apr. 26, 2013) (quotations and citation
omitted); see also Drumm v. SUNY Geneseo College, 486 Fed. Appx. 912,914 (2d Cir. June 29,
20 12) (summary order). "While [plaintiff] need not specifically plead every element of a prima
facie case to survive a motion to dismiss* * * [he] must nevertheless plead facts sufficient to
render [his] retaliation claims plausible." Reid v. lngerman Smith LLP, 876 F. Supp. 2d 176, 187
(E.D.N.Y. 2012); see also James v. Countrvwide Financial Com., 849 F. Supp. 2d 296,311
(E.D.N.Y. 2012) (accord).
"An employee's complaint may qualifY as protected activity, satisfYing the first element of
this test, so long as the employee has* **a good faith, reasonable belief that [he] was opposing an
employment practice made unlawful by Title VII [or the ADEA or ADA]." Kelly,- F.3d - ,
2013 WL 1776646, at* 3 (quotations and citation omitted); see also Kessler v. Westchester County
Department of Social Services, 461 F.3d 199, 210 (2d Cir. 2006) (Title VII and ADEA); Muller v.
Costello, 187 F.3d 298,311 (2d Cir. 1999) (ADA).
Plaintiff's complaint fails to state a claim for retaliation under any of the employment
discrimination statutes because, inter alia, he fails to allege any facts that permit the inference that
he had a good faith, reasonable belief that he challenged conduct that constituted discrimination
based upon a protected characteristic. See Drumm, 486 Fed. Appx. at 914. There are no factual
allegations in plaintiff's complaint from which it may be inferred: (I) that a protected characteristic
played any role, no less a substantial role, in the conduct of which plaintiff complains, i.e., that he
was accused of stealing money and/or of sexually harassing another employee because of his race,
color, religion, sex, national origin, age or disability; or (2) that plaintiff ever opposed an
6
employment practice made unlawful under any of the employment discrimination statutes or
participated in any proceeding under those statutes. Indeed, the complaint contains no allegation
that plaintiff took any action in response to the accusations against him. Absent any allegation that
plaintiff engaged in a protected activity, i.e., opposed any discriminatory act or practice made
unlawful under the employment discrimination statutes, the complaint fails to state a claim for
retaliation under any of the employment discrimination statutes.
See,~
Brown v. City ofNew
York, No. 10 Civ. 6491,2011 WL 2693677, at* 7 (S.D.N.Y. July II, 2011) (dismissing the
plaintiffs federal retaliation claims where the complaint "wholly fail[ed] to identify any
discrimination or sexual harassment-related complaint or other 'protected activity' on the part of
[the] plaintiff.") Accordingly, plaintiffs retaliation claims are sua sponte dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief
C.
Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given
leave to amend "when justice so requires." Although, "[!]eave to amend []may be properly
denied for: 'undue delay, bad faith or dilatory motive on the part of the [plaintiff], repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc.,"' Rutolo v. City of New York,
514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 229,9 L.
Ed. 2d 222 (1962)); see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.
2008), "when addressing a prose complaint, a district court should not dismiss without granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated." Thompson v. Carter, 284 F.3d 411,416 (2d Cir. 2002) (quotations
7
and citation omitted); see also Shomo v. Citv of New York, 579 F .3d 176, 183 (2d Cir. 2009).
Accordingly, plaintiff is granted leave to amend his complaint to cure the pleading deficiencies
noted herein provided that any such amended complaint is filed on or before June 17, 2013,
or the complaint will be deemed dismissed with prejudice and judgment shall enter in favor
of defendant. The amended complaint shall be clearly entitled "amended complaint" and bear the
same docket number as this Order. No summons shall issue at this time.
III.
Conclusion
For the reasons set forth above, plaintiff's complaint is sua sponte dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief. Plaintiff is
granted leave to amend his complaint to cure the pleading deficiencies noted herein provided that
any such amended complaint is filed on or before June 17, 2013, or the complaint will be
deemed dismissed with prejudice and judgment shall enter in favor of defendant.
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. Coppedge
v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d 21 (1962).
SO ORDERED.
Sanora J. t4l.l'erstein
United States District Judge
Dated: May 13, 20 13
Central Islip, New York
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?