Johnson v. Lew et al

Filing 19

DECISION AND ORDER granting in part and denying in part # 12 Defendants' Motion to Dismiss for Failure to State a Claim; Plaintiff's complaint is dismissed with prejudice and without prior leave to amend EXCEPT the following claims in that Complaint: (1) Plaintiffs Title VII race-discrimination claim against Defendant Lew in his official capacity; (2) Plaintiffs Title VII gender-discrimination claim against Defendant Lew in his official capacity; (3) Plaintiffs ADEA age-discrimination claim against Defendant Lew in his official capacity; and (4) Plaintiffs retaliation claim against all Defendants; and it is ORDERED that, within THIRTY (30) DAYS from the filing date of this Decision and Order, Plaintiff must file an AMENDED COMPLA INT that corrects the pleading defects in the above-listed claims, or those claims shall be DISMISSED with prejudice and without further Order of this Court. Signed by Judge Glenn T. Suddaby on 7/23/15. (lmw) (Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JEROME R. JOHNSON,
Plaintiff,
v.

Case No. 1:13-CV-1072
(GTS/CFH)

JACOB J. LEW, Secretary, Department of
Treasury, Internal Revenue Service; SHARON
FLOYD, Director, Diversity, Equal Employment
Opportunity Commission; AMY ALBEE,
Supervisor, Walk-in Unit, Internal Revenue
Service; JEAN CAIN, Territory Manager, Walk-in
Unit, Internal Revenue Service; and ANITA HILL,
Area Director, Walk-in Unit, Internal Revenue
Service,
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

JEROME R. JOHNSON
Plaintiff, Pro Se
28 First Street
Albany, NY 12210
HON. RICHARD S. HARTUNIAN
United States Attorney for the N.D.N.Y.
Counsel for Defendants
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207-2924

KAREN FOLSTER LESPERANCE, ESQ.
Assistant United States Attorney

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed pro se by
Jerome R. Johnson ("Plaintiff") against Jacob J. Lew, Sharon Floyd, Amy Albee, Jean Cain and
Anita Hill (“Defendants”), is Defendants’ motion to dismiss for failure to state a claim upon

which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below,
Defendants’ motion is granted in part and denied in part.
I.

RELEVANT BACKGROUND
A.

Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges that, while he worked as an
Individual Taxpayer Advisory Specialist (“ITAS”) with the Internal Revenue Service’s (“IRS”)
Wage & Investment (“W&I”) Field Assistance Office in Albany, New York, Defendants
discriminated against him based on his race (African-American), gender (male) and age (69
years) when, on or about May 6, 2010, “management” refused to take any actions to “implement
[his] suggestion . . . [that the IRS and its New York W&I Field Assistance Bureau] provide [the]
short-term and long-term recruitment of low-income and minority students” in accordance with
“established [IRS] and Bureau diversity policy.” (See generally Dkt. No. 1 [Plf.’s Compl.]; Dkt.
No. 15 [Plf.’s Opp’n Memo. of Law].)1
Plaintiff’s Complaint further alleges that Defendants similarly discriminated against him,
and/or retaliated against him for filing a complaint with the Equal Employment Opportunity
Commission (“EEOC”), when, on September 29, 2010, September 30, 2010, and October 4,
2010, “management” denied his requests for “Leave [W]ithout Pay (“LWOP”), charged him with
being Absent Without Leave (“AWOL”) and then docked his pay. (Id.)

1

The Court notes that a pro se plaintiff’s papers in response to a defendant’s
motion to dismiss for failure to state a claim may be considered as effectively amending the
allegations of his complaint, to the extent those papers are consistent with the allegations in the
complaint. See, infra, Part II of this Decision and Order (setting forth legal standard governing
motions to dismiss for failure to state a claim).
2

Based on these factual allegations, Plaintiff’s Complaint asserts the following claims
against Defendant: (1) a claim of race discrimination in violation of 42 U.S.C. § 1983 and Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) a claim of
gender discrimination in violation of 42 U.S.C. § 1983 and Title VII; (3) a claim of age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621, et seq.; and (4) a claim of retaliation in violation of 42 U.S.C. § 1983 and the Equal
Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. (Id.)
Familiarity with these claims and the factual allegations supporting them in Plaintiff’s
Complaint is assumed in this Decision and Order, which is intended primarily for the review of
the parties.
B.

Parties’ Briefing on Defendants’ Motion

Generally, in support of their motion to dismiss, Defendants assert six arguments: (1) to
the extent that Plaintiff asserts claims under 42 U.S.C. § 1983, those claims fail because they do
not allege facts plausibly suggesting that any acts were taken under color of state law; (2) even if
Plaintiff’s Section 1983 claims were liberally construed as Bivens claims, they would fail
because the sole and exclusive remedy for a claim of federal employment discrimination is Title
VII and the ADEA; (3) to the extent that Plaintiff asserts claims under Title VII and the ADEA,
those claims fail because Title VII claims and ADEA claims would not lie against the
individually named defendants, other than against Secretary Lew in his official capacity; (4) in
the alternative, Plaintiff’s claims under Title VII and the ADEA, including his claims against
Secretary Lew in his official capacity, fail because they do not allege facts plausibly suggesting
that (a) Plaintiff was subjected to a materially adverse employment action, (b) such action was

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taken because of his membership in a protected class, and (c) any of the acts complained of were
taken by the individual defendants; (5) moreover, to the extent that Plaintiff intended to assert
any individual-capacity claims against any named Defendants, such claims must be dismissed for
lack of personal jurisdiction, because they have not been personally served under Fed. R. Civ. P.
4(i)(2)(B); and (6) finally, Plaintiff’s retaliation claim under 42 U.S.C. § 1983 and the Equal
Employment Opportunity Act must be dismissed because the claim fails to allege facts plausibly
suggesting that he was engaged in protected activity, that any adverse action he experienced was
causally connected to that protected activity, or that Defendants were personally involved in any
such retaliation. (Dkt. No. 12, Attach. 1 [Defs.' Memo. of Law].)
Generally, in response to Defendants’ motion, Plaintiff asserts four arguments: (1) with
regard to Defendants’ first and second arguments (i.e., that Plaintiff’s claims do not allege state
action, and that claims of federal employment discrimination do not arise under Bivens), rather
than being asserted under 42 U.S.C. § 1983 or Bivens, Plaintiff’s claims are asserted under Title
VII, the ADEA and the Equal Employment Opportunity Act; (2) with regard to Defendants’ third
argument (i.e., that Title VII claims and ADEA claims do not lie against the individually named
defendants), “special discrimination cases against federal employees and agencies may be
pursued under Title VII,” as stated in Section VI of the Civil Cover Sheet that was filed with
Plaintiff’s Complaint; (3) with regard to Defendants’ fourth argument (i.e., that the Complaint
fails allege facts plausibly suggesting the elements of the claims asserted, or even personal
involvement by the supervisory Defendants), “Plaintiff has stated a valid complaint of racial
discrimination by citing Defendants[’] action against ‘. . . minority students’, in the Facts section
of the initial complaint”; and (4) with regard to Defendants’ fifth argument (i.e., that Plaintiff

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never personally served Defendants), “Defendant accepted jurisdiction of [the] compliant in its
‘Acknowledgment and Order to the parties on April 28, 2011’ from the New York District
Office of the Equal Employment Opportunity Commission,” as evidenced by the receipts
attached to Plaintiff’s opposition memorandum of law. (Dkt. No. 15 [Plf.’s Opp’n Memo. of
Law].)
II.

GOVERNING LEGAL STANDARD
It has long been understood that a defendant may base a motion to dismiss for failure to

state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge
to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn.15-16
(N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because such motions are often based on the first ground, a few words on that ground are
appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading
contain "a short and plain statement of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between permitting a
“short and plain statement” and requiring that the statement “show[]” an entitlement to relief is
often at the heart of misunderstandings that occur regarding the pleading standard established by
Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.
Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ.

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P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
"retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that "a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turning on the conceivability of an
actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a

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pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the
pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the
"[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.2
As for the nature of what is “plausible,” the Supreme Court explained that “[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,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.

2

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp.2d at 214 &
n.35 (explaining holding in Erickson).
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Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se
plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.3
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil
rights plaintiffs must follow.4 Stated more simply, when a plaintiff is proceeding pro se, "all
normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28.
Having said that, a pro se plaintiff’s papers in response to a defendant’s motion to
dismiss for failure to state a claim may be considered as effectively amending the allegations of
his complaint, to the extent those papers are consistent with the allegations in the complaint. See

3

See Vega v. Artus, 610 F. Supp.2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit
cases).
4

See Vega, 610 F. Supp.2d at 196, n.10 (citing Supreme Court and Second Circuit
cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit cases).
8

Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) (per curiam); Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987); Donhauser v. Goord, 314 F. Supp. 2d 119, 212
(N.D.N.Y.) (Sharpe, M.J.), vacated on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004)
(Hurd, J.).
Finally, when a district court dismisses a pro se action, the plaintiff will generally be
allowed to amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir.
1999). However, an opportunity to amend is not required where the defects in the plaintiff’s
claims are substantive rather than merely formal, such that any amendment would be futile. As
the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to
be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted), accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he
court need not grant leave to amend where it appears that amendment would prove to be
unproductive or futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) ("The problem with Cuoco's causes of action is substantive; better
pleading will not cure it. Repleading would thus be futile. Such a futile request to replead
should be denied.") (citation omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”) (citation omitted); Health-Chem Corp.
v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (“[W]here . . . there is no merit in the proposed
amendments, leave to amend should be denied”).

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III.

ANALYSIS
A.

Plaintiff’s Claim of Race Discrimination in Violation of 42 U.S.C. § 1983 and
Title VII

After carefully considering the matter, the Court dismisses the portion of this claim that
is asserted under 42 U.S.C. § 1983 and/or Bivens for the reasons stated by Defendants in their
memorandum of law. See, supra, Part I.B. of this Decision and Order. To those reasons, the
Court would add only two points.
First, in his opposition memorandum of law, Plaintiff does not dispute, and indeed
appears to have conceded, Defendants’ arguments that the Complaint does not allege facts
plausibly suggesting that any acts were taken under color of state law, and that the sole and
exclusive remedy for a claim of federal employment discrimination is Title VII and the ADEA.
Id. The Court finds that, under the circumstances, Plaintiff had due notice of his duty to oppose
such legal arguments if he wished them to be considered by the Court as challenged.5 As a
result, the Court finds that Plaintiff’s failure to oppose those legal arguments was willful for
purposes of Fed. R. Civ. P. 83(a)(2). In this District, when a non-movant willfully fails to
oppose a legal argument asserted by a movant, the movant’s burden with regard to that argument
is lightened, such that, in order to succeed on that argument, the movant need only show that the
argument possess facial merit, which has appropriately been characterized as a “modest”

5

(See Dkt. No. 4, at 2 [indicating that Plaintiff was mailed a courtesy copy of [1]
the District’s Local Rules of Practice, Local Rule 7.2[b][3] of which informed Plaintiff of the
consequences of failing to oppose a motion, and [2] the Pro Se Handbook, page 27 of which
reminded Plaintiff of his “need to make legal arguments” in opposition to those contained in a
motion to dismiss “so the case will go forward”].)
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burden.6 Here, the Court finds that Defendants have, at the very least, met this lightened burden
with regard to these arguments.
Second, it appears to the Court that granting Plaintiff leave to amend his Section 1983
and/or Bivens race-discrimination claim is unlikely to be productive for two reasons: (a) the
defects in that claim appear substantive rather than merely formal in nature; and (b) Plaintiff was
notified of these defects by Defendants’ memorandum of law yet failed to address them in his
opposition memorandum of law. As a result, Plaintiff’s Section 1983 and/or Bivens racediscrimination claim is dismissed with prejudice and without prior leave to amend.
Turning to the portion of this claim that is asserted under Title VII, after carefully
considering the matter, the Court dismisses that portion for the reasons stated by Defendants in
their memorandum of law. See, supra, Part I.B. of this Decision and Order. To those reasons,
the Court would add only three points.
First, it appears to the Court that granting Plaintiff leave to amend the portion of his Title
VII race-discrimination claim that is asserted against the individually named defendants is
unlikely to be productive for two reasons: (a) the defects in that portion of the claim appear
substantive rather than merely formal in nature; and (b) Plaintiff was notified of these defects by
Defendants’ memorandum of law yet failed to address them in his opposition memorandum of
law. As a result, that portion of Plaintiff’s Title VII race-discrimination claim asserted against
the individually named defendants (other than against Defendant Lew in his official capacity) is
dismissed with prejudice and without prior leave to amend.

6

See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and
the Court determined that the moving party has met to demonstrate entitlement to the relief
requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722,
2009 WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
11

Second, while it appears doubtful that Plaintiff would, in an Amended Complaint, be able
to allege facts plausibly suggesting the elements of a Title VII race-discrimination claim against
Defendant Lew in his official capacity, the Court is mindful of Plaintiff’s special status as a pro
se civil rights litigant, and the fact that he has not yet actually filed an Amended Complaint. As
a result, Plaintiff shall have thirty days in which to correct, through amendment, the pleading
defects in that portion of his Title VII race-discrimination claim asserted against Defendant Lew
in his official capacity before that portion of the claim is dismissed with prejudice. Plaintiff is
advised that, if he submits an Amended Complaint, the Amended Complaint must be a complete
pleading that will replace and supersede the original Complaint in its entirety. Plaintiff is further
advised that, in any such Amended Complaint, he may not re-assert any claims that have been
dismissed with prejudice by this Decision and Order.
Third, because Defendants did not file a reply memorandum of law, they never responded
to Plaintiff’s argument that he successfully served the individual Defendants. In addition to this
problem is the issue of whether Defendants’ lack-of-personal-service argument, which does not
belong in a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), is
being asserted under Fed. R. Civ. P. 12(b)(2), 12(b)(4) or 12(b)(5). However, the Court
construes Defendants’ lack-of-personal-service argument to be directed solely at Plaintiff’s
individual-capacity claims against them; and thus the argument appears to be mooted by the
Court’s above-stated dismissal of those claims. Defendants are advised that, if the Court is
mistaken, they may re-raise the issue of service on a future motion to dismiss.

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B.

Plaintiff’s Claim of Gender Discrimination in Violation of 42 U.S.C. § 1983
and Title VII

After carefully considering the matter, the Court renders the same findings and
conclusions with regard to this claim as it does with regard to Plaintiff’s claim of race
discrimination under 42 U.S.C. § 1983 and Title VII. See, supra, Part III.A. of this Decision and
Order. As a result, the entirety of this claim is dismissed with prejudice and without leave to
amend except that portion the claim asserted against Defendant Lew in his official capacity, the
pleading defects of which Plaintiff shall have thirty days to correct through amendment before it
is dismissed with prejudice.
C.

Plaintiff’s Claim of Age Discrimination in Violation of the ADEA

After carefully considering the matter, the Court renders the same findings and
conclusions with regard to this claim as it does with regard to Plaintiff’s claims of race
discrimination and gender discrimination under 42 U.S.C. § 1983 and Title VII. See, supra,
Parts III.A. and III.B. of this Decision and Order. To those reasons, the Court would add only
one point.
In his opposition memorandum of law, Plaintiff does not respond to Defendants’
argument that Plaintiff’s ADEA claims do not lie against the individually named Defendants,
other than against Secretary Lew in his official capacity. See, supra, Part I.B. of this Decision
and Order. Moreover, the Court finds that Defendants have, at the very least, met their lightened
burden with regard to this argument.
For all these reasons, the entirety of this claim is dismissed with prejudice and without
leave to amend except that portion the claim asserted against Defendant Lew in his official
capacity, the pleading defects of which Plaintiff shall have thirty days to correct through
amendment before it is dismissed with prejudice.
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D.

Plaintiff’s Claim of Retaliation in Violation of 42 U.S.C. § 1983 and the
Equal Employment Opportunity Act

After carefully considering the matter, the Court agrees with Defendants that, as currently
pled, Plaintiff’s retaliation claim is insufficient under Fed. R. Civ. P. 12(b)(6), for the reasons
stated in their memorandum of law. See, supra, Part I.B. of this Decision and Order. Moreover,
it appears doubtful that Plaintiff would, in an Amended Complaint, be able to allege facts
plausibly suggesting the elements of a retaliation claim against Defendants, as well as the
personal involvement of Defendants in any such retaliation. However, again, the Court is
mindful of Plaintiff’s special status as a pro se civil rights litigant, and the fact that he has not yet
actually filed an Amended Complaint. As a result, Plaintiff shall have thirty days in which to
correct, through amendment, the pleading defects in his retaliation claim before that claim is
dismissed with prejudice.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss for failure to state a claim (Dkt. No. 12)
is GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice and
without prior leave to amend EXCEPT the following claims in that Complaint:
(1) Plaintiff’s Title VII race-discrimination claim against Defendant Lew in his
official capacity;
(2) Plaintiff’s Title VII gender-discrimination claim against Defendant Lew in his
official capacity;
(3) Plaintiff’s ADEA age-discrimination claim against Defendant Lew in his
official capacity; and
(4) Plaintiff’s retaliation claim against all Defendants; and it is further
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ORDERED that, within THIRTY (30) DAYS from the filing date of this Decision and
Order, Plaintiff must file an AMENDED COMPLAINT that corrects the pleading defects in the
above-listed claims, or those claims shall be DISMISSED with prejudice and without further
Order of this Court; and it is further
ORDERED that this case is referred back to Magistrate Judge Hummel for a Rule 16
conference and to schedule pretrial deadlines.
Dated: July 23, 2015
Syracuse, New York

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