Bailey v. Sunrise Senior Living Management Inc.

Filing 8

MEMORANDUM & ORDER - For the reasons set forth above, Plaintiff's Amended Complaint is sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that a ny 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 the Memorandum and Order to the Plaintiff at his last known address and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 10/18/2017. C/M (Valle, Christine)

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

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

SUNRISE SENIOR LIVING MANAGEMENT,
INC.,
Defendant.
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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.

By Memorandum and Order dated May 31, 2017, the

Court granted Plaintiff’s application to proceed in forma pauperis,
and sua sponte DISMISSED Plaintiff’s Complaint WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and GRANTED LEAVE TO FILE
AN AMENDED COMPLAINT.
Amended Complaint.

On June 30, 2017, Plaintiff timely filed an
For the reasons that follow, the Amended

Complaint, like the original Complaint, does not state a plausible
claim and is thus DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for the reasons that follow.

BACKGROUND1
Plaintiff’s original Complaint was submitted on the
Court’s employment discrimination complaint form and sought to
recover monetary damages pursuant to Title VII for the alleged
illegal termination, inter alia, of Plaintiff’s employment with
Defendant.

Although Plaintiff checked the boxes on the form

Complaint to allege that Defendant discriminated against him based
on his national origin and religion (Compl. ¶ 7), he did not
identify his national origin or religion on the form complaint and
left blank the spaces on the form Complaint that called for his
national origin and religion.

(Id.)

Nor did Plaintiff set forth

the basis for his claims of discrimination in the body of the
Complaint.

(See Compl., generally).
Accordingly, by Memorandum and Order dated May 31, 2017

(the “M&O”), the Court sua sponte dismissed the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for
relief.
qua

non

(See Docket Entry 6.)
of

discriminatory

a

The M&O made clear that “[t]he sine

[religion]-based
action

claim

[or

under

national

Title

VII

origin-based]
is

that

the

discrimination must be because of [one’s religion or national
origin.”

See M&O at 4-5 (quoting Patane v. Clark, 508 F.3d 106,

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

112 (2d Cir. 2007) (emphasis in original) (internal quotation marks
and citation omitted)).
Plaintiff’s

broad

The Court explained that, notwithstanding

allegations

that

he

was

subjected

to

a

religion-based or national origin-based adverse employment action,
there were simply no facts set forth in the Complaint from which
the Court could reasonably infer a religious-based, or national
origin-based motivation for such action. (M&O at 5.) Accordingly,
the Court GRANTED Plaintiff leave to file an Amended Complaint to
properly allege some facts in support of his discrimination claims.
The Amended Complaint
Notwithstanding the Court’s clear guidance concerning the
requirements of a plausible Title VII claim, Plaintiff’s Amended
Complaint does not address the deficiencies noted in the M&O.
Rather, Plaintiff’s submission states, “I spoke to an attorney and
he

said

to

simply

say

it

[the

claim]

is

for

employment

discriination [sic] and wrongful termination.” (Am. Compl. at 2.)
The balance of the Amended Complaint alleges, in its entirety:
I informed my boss, the Human Resources Department and
the Executive Director, who did nothing to stop the
discrimination and it went on until I finally had the
regional manager come in and tell me I am not a
Christian, when indeed A [sic] I Am and everyone there
knew it. I always told everyone there that “I was too
Bless to be Stress” and everyone there starting using my
line. The Haitian girls here was cursing and creating a
hostile work environment and when I complained nothing
was done to correct it.
(Am. Compl. at 2-3.)

3

Although the brief Amended Complaint does not include any
statute(s), the Court presumes that Plaintiff’s claims continue to
arise under Title VII.

However, like the original, Plaintiff does

not set forth any facts from which the Court could reasonably infer
a

religious-based,

or

national

origin-based

motivation

for

Plaintiff’s claimed “wrongful termination.” As the M&O made clear,
“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.’”
§ 2000e-2(a)(1)).)

(M&O at 4 (quoting 42 U.S.C.

Plaintiff’s Amended Complaint simply repeats

the same facts asserted in the original Complaint.

Indeed, with

regard to his claim of discrimination based on religion, Plaintiff
alleges in both the Complaint and Amended Complaint only that the
Human Resources representative stated, “You are not a Christian.”
(Compl. at 5; Am. Compl. at 2-3.)

Plaintiff does not allege, for

example,

different

that

individuals

of

a

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, notwithstanding the Court’s
clear guidance as set forth in the M&O.

(See M&O at 5-6.)

As is readily apparent, the Amended Complaint, like the
original Complaint, is devoid of any facts in support of a national
4

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) (summary
order) (internal quotation marks and citation omitted); see also
Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015)
(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 Amended 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).

The Clerk of the Court is DIRECTED to

mail a copy of the Memorandum and Order to the Plaintiff at his
last known address and to mark this case CLOSED.
CONCLUSION
For the reasons set forth above, Plaintiff’s Amended
Complaint is sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).

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
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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 the
Memorandum and Order to the Plaintiff at his last known address and
to mark this case CLOSED.

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

October
18 , 2017
Central Islip, New York

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