Stegner v. US Equal Employment Opportunity Commission et al

Filing 5

MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED but the Complaint is sua sponte DISMISSED WITH PREJUDICE as against the EEOC. Party US Equal Employment Opportunity Commission is TERMINATED from this action. The Cle rk of the Court is directed to forward copies of the Summons, Complaint, and this Order to the U.S. Marshal Service for service upon the USPS forthwith. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis is DENIED for the purpose of any appeal. Ordered by Judge Joanna Seybert on 11/12/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JESSICA STENGER,
Plaintiff,
-against-

MEMORANDUM & ORDER
13-CV-4112(JS)(ARL)

US EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, UNITED POSTAL SERVICE,

Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Jessica Stenger, pro se
24 Surrey Road
Massapequa, NY 11758
For Defendants:

No appearances.

SEYBERT, District Judge:
Before the Court is the Complaint of pro se plaintiff
Jessica Stegner (“Plaintiff”) filed pursuant to the Americans with
Disabilities Act of 1990 (“ADA") against the U.S. Equal Employment
Opportunity
Service

Commission

(“USPS”)

(“EEOC”)

(together,

and

the

United

“Defendants”),

application to proceed in forma pauperis.

States

accompanied

Postal
by

an

Upon review of the

Plaintiff’s declaration in support of her application, the Court
finds that her financial status qualifies her to proceed without
prepayment of the filing fee. Accordingly, Plaintiff’s request for
permission to proceed in forma pauperis is GRANTED.

However, for

the reasons that follow, Plaintiff’s Complaint is sua sponte
DISMISSED IN PART pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii).

BACKGROUND1
Plaintiff’s brief Complaint, submitted on the Court’s
employment discrimination complaint form, alleges that the USPS
failed to accommodate Plaintiff’s disability.

(Compl. ¶ 4.)

Plaintiff describes that she suffered a “nervous breakdown” for
which she was hospitalized and was “put on several medications.”
(Id. ¶¶ 7-8.)

According to the Complaint, the work schedule to

which Plaintiff was assigned “was not working for me because of the
medication I was taking and as a result I lost my job.” (Id. ¶ 8.)
Plaintiff alleges that she filed a charge of discrimination with
the EEOC in January 2011 and received a Notice of Right to Sue on
April 26, 2013.2

(Id. ¶¶ 10-11.)
DISCUSSION

I.

Application to Proceed In Forma Pauperis
Having reviewed Plaintiff’s declarations in support of

her application to proceed in forma pauperis, the Court finds that
she is qualified to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s
request for permission to proceed in forma pauperis is GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

1

All allegations in Plaintiff’s Complaint are presumed to be
true for the purposes of this Memorandum and Order.
2

Plaintiff has annexed to her Complaint a copy of the EEOC’s
Dismissal and Notice of Rights, dated April 26, 2013.
2

dismiss an in forma pauperis complaint if the action 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

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

The Court is required to dismiss the action as soon as

it makes such a determination.

See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally.

Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

Moreover, at the pleadings stage of the

proceeding, the Court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” in the complaint.

Kiobel v.

Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949–50, 173 L.
Ed. 2d 868 (2009), aff’d,

--- U.S. ----, 133 S. Ct. 1659, --- L.

Ed. 2d ---- (Apr. 17, 2013)).
However, a complaint must plead sufficient facts to
“state a claim to relief that is plausible on its face.”

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007).

“A claim has facial 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 (citations omitted).

The plausibility

standard requires “more than a sheer possibility that defendant has
3

acted unlawfully.” Id., 556 at 678; accord Wilson v. Merrill Lynch
& Co., 671 F.3d 120, 128 (2d Cir. 2011).

While “‘detailed factual

allegations’” are not required, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).
Here, because it is clear that Plaintiff was not employed
by the EEOC, but, rather, is apparently dissatisfied with the
outcome of her administrative charge, Plaintiff has failed to
allege a plausible disability discrimination claim against the
EEOC.

Moreover, Plaintiff’s claim against the EEOC is dismissed

for the additional reason that the Court lacks subject matter
jurisdiction to adjudicate it.

Sovereign immunity clearly bars

Plaintiff’s ADA claim against the EEOC.

See Burton v. US Equal

Employment Opportunity Commission, No. 11-CV-4074, 2011 WL 4344154,
at

*2-3

(E.D.N.Y.

Sept.

12,

2011)

(sua

sponte

dismissing

discrimination claim against the EEOC pursuant to 28 U.S.C. §
1915(e)(2)(B) because it was barred by sovereign immunity); McKoy
v. Potter, No. 08-CV-9428, 2009 WL 1110692, at * 5 (S.D.N.Y. Apr.
21, 2009) (“Courts have repeatedly held that the United States has
not waived sovereign immunity for suits against the EEOC based on
the EEOC’s handling of an employment discrimination charge.”)
(citing cases); see also Stone v. NYC Transit, No. 04-CV-4141, 2005
WL 1593524, at *1 (E.D.N.Y. July 7, 2005) (“[N]either the ADA nor
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Title VII grants a waiver of sovereign immunity . . . .).
Accordingly, Plaintiff’s ADA claim against the EEOC is DISMISSED
WITH PREJUDICE.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, but the Complaint is sua
sponte DISMISSED WITH PREJUDICE as against the EEOC. The Complaint
shall proceed against the USPS and the Clerk of the Court is
directed to forward copies of the Summons, Complaint, and this
Order to the United States Marshal Service for service upon the
USPS forthwith.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Memorandum & Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

November
12 , 2013
Central Islip, New York

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