Bailey v. Sunrise Senior Living Management Inc.

Filing 6

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however Plaintiff's Complaint is sua sponte DISMISSED WITHOU T PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT in accordance with the guidance set forth above within thirty (30) days from the date of this Memorandum & Order. 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. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff at his last known address. So Ordered by Judge Joanna Seybert on 5/31/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JULIUS C. BAILEY,
Plaintiff,

MEMORANDUM & ORDER
16-CV-7184(JS)(GRB)

-againstSUNRISE SENIOR LIVING MANAGEMENT,
INC.,

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Julius C. Bailey, pro se
120 Columbia Street
Huntington Station, NY 11746-1220
For Defendant:

No appearance.

SEYBERT, District Judge:
On December 27, 2016, pro se plaintiff Julius C. Bailey
(“Plaintiff”) filed a Complaint in this Court pursuant to Title VII
of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to
2000e-17 (“Title VII”) against Sunrise Senior Living Management,
Inc. (“Defendant”), accompanied by an application to proceed in
forma pauperis.
Upon review of the declaration in support of Plaintiff’s
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of

the

filing

fee.

See

28

U.S.C.

§§

1914(a);

1915(a)(1).

Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.

However, for the reasons that follow, Plaintiff’s claims

are sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).

BACKGROUND1
Plaintiff’s

Complaint

is

submitted

on

the

Court’s

employment discrimination complaint form and seeks to recover
monetary damages pursuant to Title VII for the alleged illegal
termination,
Defendant.

inter

alia,

of

Plaintiff’s

employment

with

the

Although Plaintiff has checked the boxes on the

Complaint to allege that Defendant discriminated him based on his
national origin and religion (Compl. ¶ 7), he does not identify his
national origin or religion and has left blank the spaces that call
for Plaintiff’s national origin and religion.

(Id.)

Plaintiff alleges the following facts:2
I have been discriminated against by the above named
respondent based on my national origin and religion.
During the course of my employment with respondent, I
made numerous complaints regarding the hostile work
environment
created
by
several
Haitian
servers,
specifically regarding their lack of respect for my
religious beliefs. As a result of my many complaints, on
August 11, 2016, I had a meeting with Patrice Johns of
HR, John Hudson the Executive Director and Ryan Monahan,
my supervisor.
During the meeting, I explained my
position and the hostile work environment created by
Haitian women. At one point during the meeting Ms. Johns
state “you are not a Christian”, which made me very
uncomfortable.
She then told me to return to work.
About an hour later, Ryan informed me that Ms. Johns said
1

All material allegations in the Complaint and are presumed to
be true for the purpose of this Memorandum and Order. Rogers v.
City of Troy, N.Y., 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing
a pro se complaint for sua sponte dismissal, a court is required
to accept the material allegations in the complaint as true).
2

Excerpts from the Complaint are reproduced here exactly as they
appear in the original. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
2

I should go home and they would pay me for the day. The
next day I received a call from John Hudson who said
Patrice Johns said not to come back on the property. I
have not been scheduled to work since. At no time did
anyone tell me I was terminated or why I couldn’t return
to work.
By subjecting me to disparate treatment &
harassment, Respondent has violated Title VII of the
Civil Rights Act of 1964, as amended and all applicable
state & local statutes.
(Compl. ¶ 8, and at 5.)
DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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.
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 upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from such 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.
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,
3

200 (2d Cir. 2004).

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,
1974, 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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id. 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).
III.

Plaintiff’s Employment Discrimination Claims
Title VII prohibits an employer from discriminating

against any individual regarding “compensation, terms, conditions,
or privileges of employment, because of such individual’s race,
color, religion, sex or national origin.”
2(a)(1).

42 U.S.C. § 2000e-

“The sine qua non of a [religion]-based [or national

origin-based] discriminatory action claim under Title VII is that
the discrimination must be because of [one’s religion or national
origin.” Patane v. Clark,

508 F.3d 106, 112 (2d Cir. 2007)
4

(emphasis in original) (internal quotation marks and citation
omitted).
Here, although Plaintiff’s Complaint broadly alleges that
he was subjected to a religion-based or national origin-based
adverse employment action, there are no facts set forth in the
Complaint from which the Court could reasonably infer a religiousbased, or national origin-based motivation for such action.
Indeed, with regard to his claim of discrimination based on
religion,

Plaintiff

alleges

only

that

the

Human

representative stated, “You are not a Christian.”

Resources

(Compl. at 5.)

It does not allege, for example, that individuals of a different
national origin or religion from Plaintiff were given preferential
treatment

when

compared

to

Plaintiff

or

that

Plaintiff

was

subjected to any specific national origin-based or religion-based
remarks that may demonstrate a discriminatory animus.

As is

readily apparent, the Complaint is devoid of any facts in support
of a national origin-based or religion-based discrimination claim.
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 F. App’x 808, 808-09 (2d Cir. 2011)
(internal

quotation

marks

and

citation

omitted);

see

also

Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015)
5

(Although a plaintiff need not allege facts establishing every
element of a prima facie case of employment discrimination, the
facts alleged must give “plausible support to a minimal inference
of discriminatory motivation.”).
Accordingly, because the Complaint does not allege a
plausible

employment

discrimination

claim

under

Title

VII,

Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff is GRANTED LEAVE TO FILE AN

AMENDED COMPLAINT in accordance with this Memorandum and Order.
Any Amended Complaint shall be clearly labeled “Amended Complaint”,
shall bear the same docket number as this Memorandum and Order, 16CV-7184(JS)(GRB), and shall be filed within thirty (30) days from
the date of this Memorandum and Order.

If Plaintiff files an

Amended Complaint within the time allowed, the Court shall screen
it pursuant to 28 U.S.C. § 1915.

If Plaintiff does not file an

Amended Complaint within the time allowed, judgment shall enter,
and this case shall be closed.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however Plaintiff’s
Complaint is sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff is GRANTED LEAVE TO FILE AN

AMENDED COMPLAINT in accordance with the guidance set forth above
within thirty (30) days from the date of this Memorandum & Order.
6

If Plaintiff does not file an Amended Complaint within the time
allowed, judgment shall enter and this case shall be closed.
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 and Order to the pro se Plaintiff at his last known
address.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

May
31 , 2017
Central Islip, New York

7