Zheng v. General Electric Company et al

Filing 35

DECISION AND ORDER: that the Court accepts and adopts Magistrate Judge Hummel's April 21, 2016 Report-Recommendation and Order, Dkt. No. 29, in its entirety; that Plaintiff's "Third Amended Complaint," Dkt. No. 25, will be interpr eted as a supplement to Plaintiff's Second Amended Complaint, Dkt. No. 22, and that (a) paragraphs 51 and 52 of the "Third Amended Complaint" are read to replace paragraphs 51 and 52 of the Second Amended Complaint, and (b) the exhibit s attached to the "Third Amended Complaint" are considered exhibits to the Second Amended Complaint; that Plaintiff's Eleventh Cause of Action against GE Company for "Unequal Opportunity Employer" shall be read as an unconsci onability claim against GE Company pursuant to state contracts law, and such claim may proceed; that to the extent Plaintiff's Second Amended Complaint may be read as alleging claims against GE Transportation, GE Power & Water, and GE Energy Sto rage (GEMX Technologies, LLC) for (a) violations of the NYSHRL and (b) retaliation in violation of 42 U.S.C. 1981, such claims are dismissed with prejudice and without opportunity to amend; (4) Plaintiff's claim against defendant Craver for reta liation in violation of the New York State Human Rights Law may proceed; that Plaintiff's claim against defendant Craver for retaliation in violation of 42 U.S.C. 1981 may proceed; that Plaintiff's claim against defendant Austin for retalia tion in violation of 42 U.S.C. 1981 may proceed; that insofar as Plaintiff's Second Amended Complaint may be read as alleging any claims against defendants Tom O'Donnell and Kristen Crisman, such claims are dismissed with prejudice and with out opportunity to amend; that in addition to the claims discussed above, the following claims survive the Section 1915(e) initial review for the reasons stated in Magistrate Judge Hummel's January 12, 2016 Report-Recommendation and Order, Dkt. No. 17, adopted by the undersigned in a February 4, 2016 Decision and Order, Dkt. No. 18: (A) Plaintiff's Title VII claims against GE Company for (i) discrimination, (ii) retaliation, (iii) unequal terms and conditions of employment, and (iv) wr ongful termination; (B) Plaintiff's Age Discrimination in Employment Act claim against GE Company; (C) Plaintiff's claim against defendant Bourgeois pursuant to New York State Civil Rights Law 79; (D) the following claims in violation of 42 U.S.C. 1981; (i) retaliation and harassment against GE Company, (ii) disparate treatment against defendants Austin, Bourgeois, Shah and Trant; (iii) harassment and retaliation relating to workload assignments against Bourgeois and Austin; and (E) Pl aintiff's claims pursuant to the New York State Human Rights Law against defendants GE Company, Bourgeois, Austin, Trant, and Shah and that the remaining defendants, or their counsel, are required to file a formal response to the Second Amended Complaint as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants, and that the Clerk is ordered to schedule a Rule 16 Conference before the assigned Magistrate Judge.Signed by Senior Judge Thomas J. McAvoy on 05/09/2016. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------WENCHUN ZHENG, Ph.D.,
Plaintiff,
v.

1:15-CV-1232
(TJM/CFH)

GENERAL ELECTRIC COMPANY,
et al.,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge

DECISION and ORDER
I.

INTRODUCTION
This pro se action was referred to the Hon. Christian F. Hummel, United States

Magistrate Judge, for a 28 U.S.C. § 1915(e) review of Plaintiff’s Second Amended
Complaint. In conducting this review, Magistrate Judge Hummel afforded Plaintiff the
special solicitude due pro se litigants, and incorporated into the Second Amended
Complaint allegations contained in an incomplete document entitled “Third Amended
Complaint.” See April 21, 2016 Report-Recommendation and Order [dkt. # 29]. Magistrate
Judge Hummel’s recommendations are addressed more fully below. Plaintiff thereafter
filed a letter directed to Magistrate Judge Hummel [dkt. # 34] in which Plaintiff (1) tells
Magistrate Judge Hummel that he appreciates the “solicitude expressed in the ReportRecommendation and Order,” (2) “enclose[s] . . . [a] formal 3rd Amended Complaint
which,” he contends, is intended to “supersede[] all previous-filed versions of this
complaint in its entirety,” (3) asks that the “formal 3rd Amended Complaint” (and
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summonses) be served on the Defendants, and that Defendants be directed to base their
responses on this pleading, (4) “highlights” the differences between the Second Amended
Complaint and the “formal 3rd Amended Complaint,” and (5) discusses some of the
conclusions reached in the April 21, 2016 Report-Recom mendation and Order, asking
Magistrate Judge Hummel to reconsider one under a “different perspective,” propounding
a hypothetical for consideration under one claim, providing more factual content then pled
in the Second Amended Complaint, and explaining the reasons Plaintiff purportedly took
certain actions while employed. Dkt. # 34.
The Court will treat this letter as objections to the April 21, 2016 ReportRecommendation and Order.
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997) (The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate’s findings.). “[E]ven a pro se party's objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in
the magistrate's proposal, such that no party be allowed a second bite at the apple by
simply relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2
(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v.
7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).

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General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).
III.

DISCUSSION
The first order of business is addressing the pleading that Plaintiff contends is his

“formal 3rd Amended Complaint.”
After Magistrate Judge Hummel performed a 28 U.S.C. § 1915(e) review of
Plaintiff’s Amended Complaint, the Court adopted Magistrate Judge Hummel’s
recommendations and granted Plaintiff leave to file a second amended complaint. Plaintiff
filed his Second Amended Complaint, which was also referred to Magistrate Judge
Hummel for a 28 U.S.C. § 1915(e) review. Plaintiff then filed an incomplete pleading
entitled “Third Amended Complaint,” which, giving Plaintiff the solicitude due a pro se
litigant, Magistrate Judge Hummel incorporated into the Second Amended Complaint.
Thus, the “formal 3rd Amended Complaint” which Plaintiff now presents is, in actuality, a
proposed Fourth Amended Complaint.
Despite the solicitude afforded Plaintiff, his pro se status does not entitle him to file
amended pleadings ad infinitum attempting to rectify deficiencies in prior pleadings.
Federal Rule of Civil Procedure 15 provides that a party may amend his pleading “once as

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a matter of course,” and may otherwise amend (1) with the opposing party’s written
consent, or, (2) the Court’s leave. Plaintiff has neither presented the Defendants’ written
consent for his fourth amendment, nor received the Court’s leave for that purpose. Thus,
the Court will not consider Plaintiff’s “formal 3rd Amended Complaint,” nor will it be filed. If
Plaintiff desires to seek leave to file a Fourth Amended Complaint, he must do so in
accordance with the applicable procedural rules.
Moving on, the Court has considered that much of Plaintiff’s May 2, 2016 letter that
could be deemed objections to the Report-Recommendation and Order, and has
completed a de novo review of the issues raised by those objections. Having done so, the
Court accepts and adopts Magistrate Judge Hummel’s recommendations for the reasons
stated in his thorough report.
IV.

CONCLUSION
In conclusion, the Court accepts and adopts Magistrate Judge Hummel’s April 21,

2016 Report-Recommendation and Order, Dkt. No. 29, in its entirety. Therefore, it is
hereby ORDERED that:
(1) Plaintiff’s “Third Amended Complaint,” Dkt. No. 25, will be interpreted as a
supplement to Plaintiff’s Second Amended Complaint, Dkt. No. 22, and that (a)
paragraphs 51 and 52 of the “Third Amended Complaint” are read to replace paragraphs
51 and 52 of the Second Amended Complaint, and (b) the exhibits attached to the “Third
Amended Complaint” are considered exhibits to the Second Amended Complaint;
(2) Plaintiff’s Eleventh Cause of Action against GE Company for “Unequal
Opportunity Employer” shall be read as an unconscionability claim against GE Company

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pursuant to state contracts law, and such claim may proceed;1
(3) To the extent Plaintiff’s Second Amended Complaint may be read as alleging
claims against GE Transportation, GE Power & Water, and GE Energy Storage (GEMX
Technologies, LLC) for (a) violations of the NYSHRL and (b) retaliation in violation of 42
U.S.C. § 1981, such claims are dismissed with prejudice and without opportunity to
amend;
(4) Plaintiff’s claim against defendant Craver for retaliation in violation of the New
York State Human Rights Law may proceed;
(5) Plaintiff’s claim against defendant Craver for retaliation in violation of 42
U.S.C. § 1981 may proceed;
(6) Plaintiff’s claim against defendant Austin for retaliation in violation of 42
U.S.C. § 1981 may proceed;
(7) Insofar as Plaintiff’s Second Amended Complaint may be read as alleging
any claims against defendants Tom O’Donnell and Kristen Crisman, such claims are
dismissed with prejudice and without opportunity to amend;
(8) In addition to the claims discussed above, the following claims survive the
Section 1915(e) initial review for the reasons stated in Magistrate Judge Hummel’s
January 12, 2016 Report-Recommendation and Order, Dkt. No. 17, adopted by the
undersigned in a February 4, 2016 Decision and Order, Dkt. No. 18:
(A) Plaintiff’s Title VII claims against GE Company for (i) discrimination, (ii)
retaliation, (iii) unequal terms and conditions of employment, and (iv) wrongful

1
Nothing in this Decision and Order should be interpreted as ruling upon Defendants’ pending motion
to compel arbitration and dismiss the Second Amended Complaint. See Dkt. #30.

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termination;
(B) Plaintiff’s Age Discrimination in Employment Act claim against GE
Company;
(C) Plaintiff’s claim against defendant Bourgeois pursuant to New York State
Civil Rights Law §79;
(D) the following claims in violation of 42 U.S.C. §1981: (i) retaliation and
harassment against GE Company, (ii) disparate treatment against defendants
Austin, Bourgeois, Shah, and Trant; (iii) harassment and retaliation relating to
workload assignments against Bourgeois and Austin; and
(E) Plaintiff’s claims pursuant to the New York State Human Rights Law
against defendants GE Company, Bourgeois, Austin, Trant, and Shah;
and it is further,
ORDERED that the remaining defendants, or their counsel, are required to file a
formal response to the Second Amended Complaint as provided for in the Federal Rules
of Civil Procedure subsequent to service of process on the defendants, and that the Clerk
is ordered to schedule a Rule 16 Conference before the assigned Magistrate Judge.
IT IS SO ORDERED.
Dated:May 9, 2016

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