Parker v. BJs Wholesale Club, Inc.

Filing 5

MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED but his ADEA claim is sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim. If Plaintiff wishes to file an Amended Complaint he must do so by February 12, 2014. If Plaintiff does not timely file an Amended Complaint, his ADEA claim against Defendant will be dismissed with prejudice. Plaintiff's Title VII claims shall proceed, however no summons shall issue at this time. This action shall be ST AYED for 45 days, at the cvonclusion of which, if Plaintiff has not filed an Amended Complaint, the Clerk of the Court is directed to issue a Summons for BJ's and to forward the Summons, a copy of the Complaint, and a copy of this Order to the USMS for service. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for the purpose of any appeal. Ordered by Judge Joanna Seybert on 1/10/2014. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MARK L. PARKER,
Plaintiff,

MEMORANDUM & ORDER
13-CV-6065(JS)(WDW)

-againstBJ’S WHOLESALE CLUB, INC.,

Defendant.
----------------------------------X
APPEARANCES:
For Plaintiff:
Mark L. Parker, pro se
465 Howard Avenue
Apt. #2-B
Brooklyn, NY 11233
For Defendant:

No appearances.

SEYBERT, District Judge:
On

October

29,

2013,

pro

se

plaintiff

Mark

Parker

(“Plaintiff”) commenced the instant action against BJ’s Wholesale
Club (“BJ’s” or “Defendant”), asserting claims for employment
discrimination pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), as codified 42 U.S.C. § 2000e et seq., and
claims

for

employment

discrimination

pursuant

to

the

Age

Discrimination in Employment Act of 1967 (“ADEA”), as codified 29
U.S.C. § 621 et seq.

Plaintiff’s Complaint was accompanied by an

application to proceed in forma pauperis.
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request 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) and 1915A(b)(1).
BACKGROUND1
Plaintiff’s

Complaint

is

submitted

employment discrimination complaint form.

on

the

Court’s

Plaintiff alleges that

BJ’s employed him under unequal terms and conditions of employment,
terminated his employment, and retaliated against him by firing him
four days before his raise all because of his race, color, and age.
(Compl. at 3 and 5.)
One week before Plaintiff was fired, as Plaintiff made
coffee at work, Plaintiff told an unidentified person2 that “you
[sic] not a cowboy without a fast horse and a good cup of
coffee[.]” (Compl. at 5.)

The unidentified person “walk[ed] by 5

seconds later and [said you] also [need] a good rope[.]” (Compl. at
5.)
At 2:00 p.m. on March 1, 2013, Plaintiff arrived at work
and went to make coffee.

(Compl. at 4.)

Three minutes after

asking a manager about his 401K plan, Plaintiff was called to the
general manager’s office and informed that someone had smelled
alcohol on his breath.

(Compl. at 4)

Plaintiff informed the

1

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

It is unclear from the Complaint who this person was, but the
Complaint could be read to construe this unidentified person as
the same general manager alleged to have been involved in
Plaintiff’s firing.

general manager that he had family visiting from out of town, and
that he had drinks with them “on my off day I wasn[’]t on the clock
I had[n’t] started work yet[.]”

(Compl. at 4.)

The general

manager asked Plaintiff to choose between taking a drug test or
being terminated, so Plaintiff opted for the drug test. (Compl. at
4.) Plaintiff was escorted to his car by Eric, his senior manager,
who called Plaintiff a “thiller gorilla” and/or “gorilla monkey,”
which Plaintiff asserts were meant as “racist statement[s].”
(Compl. at 5.)
Plaintiff asserts that since he “felt racism” from both
the gorilla and rope remarks, he told his general manager that
“with my own eyes” he had seen other employees “smoke pot on the
job[,]” whereas Plaintiff consumed alcohol “not on [the] clock[.]”
(Compl. at 5.)

When the results of Plaintiff’s drug test showed

his alcohol level to be 0.6, Eric would not allow Plaintiff to
reenter the store.

(Compl. at 5.)

Plaintiff filed a charge of discrimination with the New
York State Division of Human Rights (“NYSDHR”) on May 22, 2013 and
with the Equal Employment Opportunity Commission (“EEOC”) on March
7, 2013.

(Compl. at 4.)

He

received a Notice of Right to Sue

from the EEOC dated July 31, 2013.3

3

(Compl. at 4, 6.)

Plaintiff has annexed to his Complaint a copy of the NYSDHR’s
Charge of Discrimination, dated May 22, 2013, and a copy of the
EEOC’s Dismissal and Notice of Rights, dated July 31, 2013.

DISCUSSION
I.

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

his application to proceed in forma pauperis, the Court finds that
he 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

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. See 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
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).
A.

Plaintiff’s ADEA Claims
Although Plaintiff indicated on his Complaint that he was

pursuing

this

action,

in

part,

based

on

the

ADEA

for

age

discrimination (Compl. at 1, 3), Plaintiff has failed to include
any allegations or information as to how his age played a factor in
his disparate treatment, firing, or retaliation.
provided

no

facts

regarding

his

allegation

As Plaintiff has
of

age-based

discrimination, this claim must be DISMISSED WITHOUT PREJUDICE for
failure to state a claim for relief.

Twombly, 550 U.S. at 555,

570; see also 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).

B.

Plaintiff’s Title VII Claims
Plaintiff’s Title VII claims against Defendant shall

proceed.

However, because, as explained below, Plaintiff may file

an Amended Complaint, no summons shall be issued at this time.
Rather, this case shall be stayed for forty-five (45) days so as to
allow Plaintiff to file his Amended Complaint.

If Plaintiff does

not timely file an Amended Complaint, the Clerk of the Court shall,
at the conclusion of the stay period, issue a Summons for BJ’s and
forward a copy of the Summons, Complaint, and this Memorandum and
Order to the United States Marshal Service for service upon
Defendant.
III. Leave to Replead
Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend the Complaint
“when justice so requires.”

Nevertheless, “[l]eave to amend,

though liberally granted, may properly be denied for: ‘undue delay,
bad faith or dilatory motive on the part of the movant, 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.’”

Ruotolo v. City of N.Y.,

514 F.3d 184, 191 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see also Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).
“[W]hen addressing a pro se 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) (internal quotation marks and citation omitted); see
also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
As Plaintiff may plausibly raise an ADEA claim, such
claim is DISMISSED WITHOUT PREJUDICE and with leave to replead. If
Plaintiff wishes to file an Amended Complaint, he must do so by
February 12, 2014.

The Amended Complaint must be titled “Amended

Complaint” and bear the same docket number as this Memorandum and
Order, No. 13-CV-6065 (JS)(WDW).

Plaintiff’s Amended Complaint

will supercede his original Complaint.

Therefore all claims and

allegations Plaintiff wishes to pursue should be included in his
Amended

Complaint.

If

Plaintiff

does

not

file

an

Amended

Complaint, his ADEA claim will be dismissed with prejudice.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to
proceed in forma pauperis is GRANTED, but his ADEA claim is sua
sponte DISMISSED WITHOUT PREJUDICE for failure to state a claim. If
Plaintiff wishes to file an Amended Complaint he must do so by
February 12, 2014.

If Plaintiff does not timely file an Amended

Complaint, his ADEA claim against Defendant will be dismissed with
prejudice.
Plaintiff’s Title VII claims shall proceed.

However, as

Plaintiff has an opportunity to file an Amended Complaint, no
summons shall issue at this time.

Rather, this action shall be

stayed for forty-five (45) days, at the conclusion of which, if
Plaintiff has not filed an Amended Complaint, the Clerk of the
Court is directed to issue a Summons for BJ’s and to forward the
Summons, a copy of the Complaint, and a copy of this Memorandum and
Order to the United States Marshal Service for service upon the
Defendant without prepayment of the filing fee.
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 Court is directed to mail a copy of this
Order to the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

January
10 , 2014
Central Islip, New York