Davis v. Broome Developmental Center

Filing 12

MEMORANDUM-DECISION and ORDER - that OPDD's 9 Motion to Dismiss for Failure to State a Claim is GRANTED and all claims against them are DISMISSED. That Davis may - in accordance with the requirements of N.D.N.Y.L.R.7.1(a)(4) - file an amend ed complaint, if she can, in good faith, allege sufficient facts to cure the deficiencies articulated in the order, within thirty (30) days of this order. That if Davis elects to file an amended complaint, OPDD shall have fourteen (14) days to file the appropriate response, and/or renew its motion to dismiss. That if Davis does not file an amended complaint within thirty (30) days of this order, the Clerk is directed to enter judgment in favor of OPDD and close this case. Signed by Chief Judge Gary L. Sharpe on 4/17/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DOROTHY DAVIS,
Plaintiff,

3:11-cv-1263
(GLS/DEP)

v.
NEW YORK STATE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL
DISABILITIES,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Dorothy Davis
Pro Se
35 Felters Road #156
Binghamton, NY 13903
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224

ADRIENNE J. KERWIN
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dorothy Davis commenced this action against defendant

New York State Office for People with Developmental Disabilities (OPDD)
asserting claims of racial discrimination and employment retaliation under
Title VII of the Civil Rights Acts of 1964 and 1991.1 (See Compl., Dkt. No.
1.) Pending is OPDD’s motion to dismiss. (See Dkt. No. 9.) For the
reasons that follow, the motion is granted.
II. Background2
Davis, a former employee of the Broome Developmental Center,
claims that she was “treated differently from the other employees at [her]
job who were white.” (Compl. ¶ 8.) Although she was permitted to cook
meals for the clients at the facility, Davis was not permitted to go to the
supermarket for them, was falsely accused of leaving work early and
placed in a building where other staff members were “doing things to make
[her] lose [her] job.” (Id. ¶¶ 8-9.) Davis now alleges the following three
causes of action against OPDD: (1) race discrimination; (2) retaliation; and
(3) improper termination.3 (See id. ¶ 9.)
1

See 42 U.S.C. § 2000e et seq.

2

The allegations are drawn from Davis’s Complaint and presented in a light most
favorable to her.
3

Davis’s third cause of action appears to challenge the basis of her termination. (See
Compl. ¶ 9.) In so doing, however, Davis poses a question in lieu of an actionable claim. (See
id.) Though the third cause of action must be dismissed as unintelligible, the court considers
the factual allegations contained therein in its review of Davis’s retaliation and discrimination

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III. Standard of Review
The standard of review under Fed. R. Civ. P. 12 is well established
and will not be repeated here.4 For a full discussion of the standard, the
court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
OPDD argues that Davis’s Complaint should be dismissed as she
fails to state actionable Title VII retaliation or discrimination claims.5 (See
Dkt. No. 9, Attach. 1 at 2-3.) Davis responds that she was illegally fired,
and thus, her claims should not be dismissed. (See generally Dkt. No. 11.)
The court agrees with OPDD.
To sustain her retaliation cause of action, Davis must allege: “(1)
participation in a protected activity; (2) that she knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection
claims. See Fed. R. Civ. P. 12(b)(6).
4

Because Davis is proceeding pro se, the court will construe her Complaint liberally.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
5

OPDD also argues that to the extent Davis sought to pursue a constitutional claim
under 42 U.S.C. § 1983, such a claim would be barred by the Eleventh Amendment. (See Dkt.
No. 9, Attach. 1 at 2.) While the court is unable to discern a section 1983 claim from Davis’s
Complaint, it nonetheless agrees that any constitutional claim against OPDD would be barred
by the Eleventh Amendment. See Wagner v. Swarts, No. 1:09-cv-652, 2011 WL 5599571, at
*10 (N.D.N.Y. Nov. 17, 2011) (discussing Eleventh Amendment immunity).

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between the protected activity and the adverse employment action.”
McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001).
With respect to the first element—which OPDD claims is lacking
here—Davis must have a “good faith, reasonable belief that [s]he was
opposing an employment practice made unlawful by Title VII.” Id. (citing
Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134 (2d Cir. 1999));
see also 42 U.S.C. §§ 2000e-2, 2000e-3 (discussing protected activities
under Title VII). Despite her de minimus burden at this stage, see
Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005), Davis’s
Complaint is devoid of any reference to an activity which could be
construed as protected, let alone allegations regarding “a causal
connection between the protected activity and the adverse employment
action,” McMenemy, 241 F.3d at 282-83. (See Compl. ¶¶ 8-9.) As such,
Davis’s retaliation claim must be dismissed.
Likewise, her Complaint also fails to plead a Title VII discrimination
claim. In analyzing claims of race discrimination, courts apply the
burden-shifting rules first set forth in McDonnell Douglas Corp. v. Green,
which place upon the plaintiff the initial burden of making out a prima facie
case of discrimination. 411 U.S. 792, 802-03 (1973). A plaintiff satisfies
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this burden by showing: “(1) membership in a protected class; (2)
satisfactory job performance; (3) termination from employment or other
adverse employment action; and (4) the ultimate filling of the position with
an individual who is not a member of the protected class.” Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). Notably, the fourth
prong may also be satisfied by demonstrating that “the discharge . . .
occurred under circumstances giving rise to an inference of discrimination”
based on the plaintiff’s membership in a protected class. Id.
In the instant case, Davis’s Complaint contains only “labels and
conclusions” of race discrimination. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Among other things, Davis’s Complaint does not contain any
“factual content that allows the court” to reasonably conclude, id., that her
discharge “occurred under circumstances giving rise to an inference of
discrimination,” Farias, 259 F.3d at 98. Stated another way, Davis’s
termination appears to be based on her alleged misconduct, not her race.6
(See Compl. ¶ 9.) Thus, this cause of action must also be dismissed.7
6

Indeed, the third cause of action discusses Davis’s alleged abuse of a client as
opposed to her race as the basis for her termination. (See Compl. ¶ 9.)
7

In spite of these failures, Davis’s response contains additional factual allegations
that—if substantially explicated and included in an amended complaint—could form the basis
of a Title VII claim. (See generally Dkt. No. 11); see also McCarthy v. Dun & Bradstreet Corp.,

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Despite these deficiencies, the court recognizes that this is the first
time that Davis has been alerted to the deficiencies in her Complaint.
Accordingly, this dismissal is without prejudice to Davis’s right to file an
Amended Complaint—if she so chooses—consistent with this
Memorandum-Decision and Order. The Amended Complaint must be filed
within thirty (30) days of the date of this order and strictly comply with the
requirements of, inter alia, N.D.N.Y. L.R. 7.1(a)(4) and Fed. R. Civ. P.
11(b). If Davis elects to file an Amended Complaint, OPDD shall have
fourteen (14) days to file the appropriate response, and/or renew its motion
to dismiss.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that OPDD’s motions to dismiss (Dkt. No. 9) is
GRANTED and all claims against them are DISMISSED; and it is further
ORDERED that Davis may—in accordance with requirements of
N.D.N.Y. L.R. 7.1(a)(4)—file an Amended Complaint, if she can, in good
faith, allege sufficient facts to cure the deficiencies articulated above,

482 F.3d 184, 191 (2d Cir. 2007) (explaining that the court’s review is limited to the “four
corners of the complaint”).

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within thirty (30) days of this order; and it is further
ORDERED that if Davis elects to file an Amended Complaint, OPDD
shall have fourteen (14) days to file the appropriate response, and/or
renew its motion to dismiss; and it is further
ORDERED that if Davis does not file an Amended Complaint within
thirty (30) days of this order, the Clerk is directed to enter judgment in favor
of OPDD and close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
April 16, 2012
Albany, New York

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