Hines v. Central New York Regional Transportation Authority et al
ORDER: ORDERED, that the 4 Report-Recommendation of Magistrate Judge Andrew T. Baxter filed August 1, 2011 is ACCEPTED in its entirety; ORDERED, that this action be DISMISSED IN ITS ENTIRETY sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)-(iii). Signed by Judge Gary L. Sharpe on 10/20/2011. (Attachments: # 1 Judge Baxter's Report-Recommendation and Order) (mgh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THEO HINES, SR. pro se, on behalf of
himself, et al.,
-v.CENTRAL NEW YORK REGIONAL
TRANSPORTATION AUTHORITY, et al.,
THEO HINES, SR.
Plaintiff, pro se
ANDREW T. BAXTER, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent to the court for review this complaint, together with an
application to proceed in forma pauperis (IFP) from pro se plaintiff, Theo Hines, Sr.
(Dkt. Nos. 1, 2). In his complaint, plaintiff appears to allege that he was terminated
from his employment as a bus driver with defendant Central New York Regional
Transportation Authority (“CENTRO”), based upon his race, in violation of a multitude
of statutes and constitutional provisions. (Dkt. No. 1). The complaint lists 42 U.S.C.
§§ 1981, 1983, 1985, 1986 and 1988; Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq.; Title I of the Labor Management Reporting and
Disclosure Act (“LMRDA”), 29 U.S.C. §§ 411-15; The Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et seq.; the 1st, 4th, 5th, 8th , 9th, 13th, and 14th
Amendments of the United States Constitution; Article I, §§ 8, 10 of the United States
Constitution; and a variety of “pendent”1 New York State statutes and constitutional
provisions. (Dkt. No. 1 at 2-4).2 Plaintiff’s claims include violations of Due Process
and Equal Protection.3 Plaintiff seeks “compensation, back pay.” (Dkt. No. 1 at 11).
Plaintiff has filed this action, requesting that he be granted IFP status pursuant to
28 U.S.C. § 1915. (Dkt. No. 2). The statute governing IFP actions provides that the
court may authorize the commencement of a civil action without the payment of fees,
when the plaintiff files an affidavit that includes a statement that he is unable to pay the
required fee or give security therefor. 28 U.S.C. § 1915(a)(1). Plaintiff in this case has
filed a form-motion to proceed IFP. (Dkt. No. 2).
A review of the application shows that plaintiff states that he is not employed
and, in the last year, has received funds from “Unemployment.” (Dkt. No. 2 at 2).
Plaintiff also states that he has a checking account with a balance of $ 1,200.00, and he
owns his house, worth $ 71,000.00. Id. However, plaintiff has no dependents, and he
has not indicated how much equity he has in his home, nor has he stated how his
expenses may affect his ability to pay the filing fee. The filing fee in this court is
$ 350.00, and plaintiff has not given this court enough information for it to make a
The court would point out that “pendent” jurisdiction is now referred to as “supplemental
The court notes that there are page numbers at the bottom of plaintiff’s complaint, but they do
not match the page numbering assigned by the court’s CM/ECF system. For ease of reference, the
pages cited to by the court will be those assigned by the court’s electronic system.
Plaintiff also mentions “RICO-like acts,” but never elaborates upon this statement. (Dkt. No. 1
determination of whether plaintiff meets the financial requirements for IFP status.
Even assuming that plaintiff meets the financial criteria for IFP, section 1915
also provides that the court may dismiss a complaint at any time if the court finds that
the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). To survive dismissal for failure to state a
claim, the complaint must contain sufficient factual matter, accepted as true, to state a
claim that is “plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555). Even if plaintiff had paid the
filing fee, the court has “inherent authority” to dismiss a complaint on the same basis.
Fitzgerald v. First East Seventh Street Tenants, 221 F.3d 362, 363-64 (2d Cir. 2000).
Dismissal for failure to state a claim may be based upon 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. Bridgeforth v. Popovics, No. 09-CV545, (GTS/RFT), 2011 WL 2133661, at *2 (N.D.N.Y. May 25, 2011) (citing Jackson v.
Onondaga County, 549 F. Supp. 2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (discussing
the standard for a motion to dismiss)).
In deciding whether an action is frivolous, the court must determine whether the
complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319,
325 (1989). A claim will be frivolous when it is “based on an ‘indisputably meritless
legal theory’. . . or [when] a dispositive defense clearly exists on the face of the
complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)
(citing Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam); Pino v. Ryan,
49 F.3d 51, 53 (2d Cir. 1995)). The court must keep in mind that when a plaintiff
proceeds pro se, particularly when he or she claims violations of civil rights, the
pleadings must be construed with great liberality. Sealed Plaintiff v. Sealed Defendants,
537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). The court must interpret the
pleadings to raise the strongest arguments they suggest. McPherson v. Coombe, 174
F.3d 276, 279 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). However, pro se status does not exempt the plaintiff from compliance with
relevant rules of both procedural and substantive law. Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citation omitted). Finally, if a liberal
reading of the complaint “gives any indication that a valid claim may be stated,” the
court must afford plaintiff leave to amend. Cuoco v. Moritsugo, 222 F.3d 99, 112 (2d
The court has reviewed plaintiff’s complaint for sufficiency under these
standards and finds that, notwithstanding the liberality with which pro se actions are
treated, plaintiff’s complaint fails to set forth factual allegations plausibly suggesting
that he has stated a claim upon which relief may be granted, and that some of plaintiff’s
claims are frivolous. Thus, notwithstanding the insufficiency of plaintiff’s IFP
application, the court will grant IFP status in order that the complaint may be filed and
then, recommend dismissal of the complaint under section 1915(e). The court will
recommend dismissal with prejudice because I find that no amendment will cure the
defects in the pleading.
Plaintiff’s4 pleading is very difficult to read and understand. In the caption of the
complaint, it appears that plaintiff has sued CENTRO and eight individual executives
of the company; the Amalgamated Transit Union (“ATU”) and individual members of
its executive committee; CENTRO’s “Workers Compensation Lawyers;” and
CENTRO’s “John Doe” Representatives for the New York State Unemployment
Insurance Board. (Dkt. No. 1 at 1). In the body of the complaint, plaintiff also names
HR ONE Consulting Firm and the New York State Workers Compensation Board as
“Defendants.” (Dkt. No. 1 at 5-6).
It appears that plaintiff is challenging the termination of his employment as a bus
driver for defendant CENTRO on July 18, 2008. (Dkt. No. 1 at 2). Plaintiff states that
he began working as a bus driver for CENTRO in February of 1992, and that his
employment was governed by a Collective Bargaining Agreement (“CBA”) between
defendants CENTRO and ATU.5 (Dkt. No. 1 at 4-5, 9). Plaintiff states that defendants
agreed with each other to “attach a Badge of infamy” to plaintiff by “unlawfully falsely
The caption of the complaint lists “Theo Hines, Sr. pro se, on behalf of himself et al. . . . .”
(Dkt. No. 1 at 1). It is unclear whether plaintiff is simply attempting to write in “legal-ese,” or whether
he is attempting to bring an action on behalf of himself and other individuals. If he is attempting to
bring an action on behalf of other individuals, he may not do so. As a pro se plaintiff, he may only
represent himself. See Cheung Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990). Thus, to the extent that he attempts to bring this action on behalf of other individuals, it must be
Plaintiff quotes sections of the CBA in his complaint. (Dkt. No. 1 at 7-8).
classifying him as a drug head thereby, subjecting him (without due process) to a code
not applicable to any other employee.” (Dkt. No. 1 at 9). Plaintiff claims that this
“Badge of infamy” caused him to be denied the right and/or privilege “(as was afforded
to other bus operators, both black and white) to have his initial drug tests confirmed, if
the initial test showed positive.” Id.
Plaintiff’s termination was based upon a positive drug test, however, plaintiff
claims that the test was a “false-positive,” and that defendants fraudulently failed to
“reconfirm” the test. (Dkt. No. 1 at 2). Plaintiff claims that he only recently6 discovered
that his termination was discriminatory and based upon his race, when his three-year
Unemployment Insurance Benefits case terminated in plaintiff’s favor. (Dkt. No. 1 at
2). Plaintiff states that the ALJ in the Unemployment Insurance Benefits case granted
plaintiff benefits because defendant CENTRO failed to produce any witnesses properly
establishing the chain of custody of the plaintiff’s urine specimen “to sustain the
admissibility of the test results.” (Dkt. No. 1 at 2 & Dkt. No. 1-1; Plf.’s Ex.). Based
upon this favorable decision, plaintiff concludes that he did not commit misconduct,
and instead, was terminated based on his race.7 Plaintiff states that prior to his
termination, CENTRO discovered that plaintiff had spoken to “two (2) known African
American male ZEBRA TEAM members because his union had refused/failed to
Plaintiff states that he was unable “(for years) to appreciate that he was being intentionally
discriminated against by Defendants until he had lived through a series of incidents . . . and was then
able to perceive the overall discriminatory pattern.” (Dkt. No. 1 at 2).
Plaintiff states that “the above civil rights and/or constitutional violations, all, surfaced and/or
was [sic] discovered during plaintiff’s, now, three (3) year N.Y.S. Unemployment Insurance trial
against CNY Centro Defendants.” (Dkt. No. 1 at 2).
present medical and/or investigatory evidence that his random drug test was a false
positive and/or that said false positive . . . was never actually re-confirmed by another
(second) drug lab. . . .” (Dkt. No. 1 at 2). Plaintiff has apparently concluded, based
upon this Administrative Law Judge’s decision, that he must have been terminated
because of his race.
Workers Compensation Board/Attorneys
It is now well-settled that the state itself cannot be sued under section 1983.
Komlosi v. New York State OMRDD, 64 F.3d 810, 815 (2d Cir. 1995) (citing Will v.
Michigan Department of Police, 491 U.S. 58, 71 (1989)). This is true whether the court
is considering Eleventh Amendment immunity or a statutory interpretation of section
1983. Id. at 815 n.3. Immunity from suit under the Eleventh Amendment extends to
State agencies and departments. Burnette v. Carothers, 193 F.3d 52, 57 (2d Cir. 1999).
In this case, in the body of the complaint, plaintiff oddly names the New York
State Workers Compensation Board (“WCB”) as a defendant. (Dkt. No. 1 at 6). It is
unclear why the WCB is named at all since none of the facts in this complaint deal with
Workers Compensation. Plaintiff discusses CENTRO and Unemployment Insurance,
but never mentions Workers Compensation.8 The Workers Compensation Board is an
agency of the State and cannot be sued under section 1983. Petway v. New York State
Plaintiff’s references are all very vague. He also mentions, in passing, jurisdiction under the
Americans With Disabilities Act (ADA), although none of plaintiff’s facts mention a disability.
Plaintiff only claims that he was terminated based on his race in violation of a multitude of statues and
constitutional amendments, but never states how he is disabled or how there was any discrimination
against him based on a disability.
Transit Auth., No. 10-CV-1419, 2010 WL 1438774, at *2 (E.D.N.Y. April 27, 2010);
Maldonado v. New York State Workers Comp. Bd., No. 05–CV-211A, 2005 WL
1523586, at *1 (W.D.N.Y. June 27, 2005). Thus, any claims9 against the New York
State Workers Compensation Board should be dismissed with prejudice under 28
U.S.C. § 1915(e)(2)(B)(iii) (dismissal based on immunity of defendant).
CENTRO’s “Workers Compensation Lawyers”
Plaintiff also names CENTRO’s “Workers Compensation Lawyers.” (Dkt. No. 1
at 1). Because there are no claims or statements of fact in the complaint that even
remotely deal with Workers Compensation, it is unclear why plaintiff names
CENTRO’s Workers Compensation attorneys as a group. Because there are no claims
stated against these unnamed “attorneys” as a group or otherwise, any claims against
these purported defendants must be dismissed as frivolous and for failure to state any
plausible claim against them.
Plaintiff bases his claim of racial discrimination upon his statement that he
recently discovered that all of the defendants conspired against him to fire him based on
a false-positive drug test in 2008. He states that this was a “massive conspiracy”
between, among others, CENTRO, it’s officers, the ATU, and an unknown defendant
HR ONE Consulting Firm. This conspiracy allegation is based solely upon plaintiff’s
The court makes this recommendation to the extent that there are any claims against the WCB.
As stated herein, there is no indication that plaintiff is complaining about anything but his dismissal
from CENTRO on the basis of a positive drug test, and the only decision that plaintiff cites as the basis
for his claim involves Unemployment Insurance benefits, not Workers Compensation benefits.
interpretation of the Unemployment ALJ’s decision, finding that plaintiff was not fired
for “misconduct” in 2008 and awarding plaintiff unemployment insurance benefits
based upon this finding. Plaintiff attaches the ALJ’s decision to his complaint, thus, the
court may review it in making its determination.
Civil Rights Statutes 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988
“To establish a claim under § 1981, a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned
one or more of the activities enumerated in the statute (i.e., make and enforce contracts,
sue and be sued, or give evidence).” Mian v. Donaldson, Lufkin & Jenrette Secs. Corp.,
7 F.3d 1085, 1087 (2d Cir.1993) (citations omitted); see also Phillip v. Univ. of
Rochester, 316 F.3d 291, 297–98 (2d Cir.2003).
In order to state a claim pursuant to 42 U.S.C. § 1983, the plaintiff must allege
that the challenged conduct was attributable, at least in part, to a person or entity acting
under color of state law, and that the challenged conduct deprived the plaintiff of a
right, privilege or immunity secured by the Constitution or laws of the United States.
Cornejo v. Bell, 592 F.3d 121, 127 (2d. Cir. 2010), cert. denied sub nom. Cornejo v.
Monn, 131 S. Ct. 158 (2010); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.
1993). The plaintiff must also allege that the defendant was personally involved in the
conduct causing the constitutional violation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (citation omitted).
To state a claim of conspiracy to violate a plaintiff’s civil rights under section
1983, a plaintiff must show an agreement between two or more state actors, to act in
concert to inflict a constitutional injury, and an overt act done in furtherance of that
goal, causing injury to the plaintiff. Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999). Conclusory allegations of conspiracy, however, are insufficient to state a claim.
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). In order to state any claim for a
violation of civil rights, a plaintiff must allege some specific allegation of fact
indicating a deprivation of rights, not “a mere litany of general conclusions that shock,
but have no meaning.” Coakley v. Jaffee, 49 F. Supp.2d 615, 625 (S.D.N.Y. 1999)
(quoting Barr, 810 F.2d at 363).
Conspiracy claims may also be brought under 42 U.S.C. § 1985. Section 1985(3)
prohibits conspiracies to deprive persons of equal protection of the law.10 Davila v.
Secure Pharm. Plus, 329 F. Supp. 2d 311, 316 (D. Conn. 2004) (citing 42 U.S.C. §
1985(3)). Section 1986 provides that every person who is aware of a conspiracy under
section 1985, but does not prevent or aid in preventing the injury, while having the
power to do so, will be liable in damages. 42 U.S.C. § 1986. A claim under section
1986 is contingent to a valid claim under section 1985 and must be commenced within
one year after the cause of action accrues. Id.
The protection afforded by section 1985 requires the conspiracy to be motivated
The relevant part of 42 U.S.C. § 1985 provides a narrower protection that for conspiracies
under section 1983. Section 1983 protects against conspiracies to deprive an individual of any
constitutional right, while section 1985(3) requires an equal protection claim. Since plaintiff in this
case is essentially alleging an equal protection violation, the difference is immaterial.
by a racial or other class-based animus. Davila, 329 F. Supp. 2d at 317. In order to
state a claim under section 1985(3), plaintiff must allege a conspiracy for the purpose of
depriving him of equal protection; an overt act in furtherance of that conspiracy; and an
injury to plaintiff's person or property, or a deprivation of a right or privilege of a
citizen of the United States. Id. (citing Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999)). Mere conclusory allegations of conspiracy are also insufficient to state a claim
under section 1985. Id.
Plaintiff’s complaint in this case is a classic instance of conclusory allegations
that “shock, but have no meaning.” Plaintiff claims that he recently discovered,
because of the ALJ’s decision, that CENTRO, its executives, and the ATU violated
plaintiff’s rights because they did not afford him a confirmatory drug test, in violation
of the CBA, and other rules and regulations. Plaintiff reads the ALJ’s decision as a
finding that plaintiff did not commit any misconduct, and therefore, he must have been
terminated from his employment, not because he tested positive for drugs, but because
he is African American, in violation of his Equal Protection and other rights. This
“discovery” is his only stated basis for making these claims. He makes a point of
saying that it was only after the ALJ’s decision that he determined that the defendants’
actions were based upon discrimination. Plaintiff also reads the ALJ’s decision to state
that plaintiff was denied the right to have two independent tests performed on his urine
sample in violation of the CBA.
The Equal Protection Clause of the Fourteenth Amendment requires that the
government treat all similarly situated people alike. Nicholas v. Tucker, 114 F.3d 17, 20
(2d Cir. 1997). Generally, the equal protection clause has been “concerned with
governmental ‘classifications that affect some groups of citizens differently than
others.’” Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008). However, an equal
protection claim can sometimes be sustained even if the Plaintiff does not allege
“class-based” discrimination and instead claims that he has been irrationally singled out
as a “class-of-one.”11 Id.(internal quotations omitted).
To establish an equal protection violation, the Plaintiff must show that the
defendants applied a different standard to similarly situated individuals. Wiggins v. N.Y.
City Dep't of Corr., 06 Civ. 1946, 2008 WL 3447573, at *8 (S.D.N.Y. Aug. 12, 2008)
(citing Skehan v. Village of Mamaroneck, 465 F.3d 96, 111 (2d Cir. 2006)). Plaintiff
must first show that he was treated differently than similarly situated individuals
because of intentional or purposeful discrimination. Phillips v. Girdich, 408 F.3d 124,
129 (2d Cir. 2005). Then, Plaintiff must show that the difference in treatment cannot
survive the appropriate level of scrutiny. Id. In a “class-of-one” claim, the Equal
Protection clause requires a “rational basis for the difference in treatment.” Id. (citing
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Of the civil rights laws discussed above, section 1983 is the only one that
To the extent that plaintiff’s complaint may be read to allege a due process claim, the court
notes that in New York State, an Article 78 proceeding provides public employees with an avenue of
post-deprivation redress that satisfies due process requirements. Thrall v. CNY CENTRO, Inc., No.
5:09-CV-567, 2011 WL 743746, *1 (N.D.N.Y. Feb. 13, 2011) (citing Sebast v. Mahan, 754 F. Supp.
2d 423, 431 (N.D.N.Y. 2010)). Thus, any claim based on an alleged denial of due process would also
requires state action.12 The court will assume that defendants were acting under color
of state law, based on the alleged “conspiracy” between CENTRO and the ATU.13
Plaintiff claims that defendants conspired to treat him differently by denying him
the ability to have two independent drug tests “as afforded to other bus operators, both
black and white.” (Dkt. No. 1 at 9). This sentence does not indicate that defendants
were discriminating against plaintiff because he was African American. Instead,
plaintiff seems to be stating that he was treated differently than all other employees.
Later in the complaint, plaintiff states that this “massive fraud” depended upon
“collective malice” against plaintiff, “predicated on an invidious, discriminatory
animus, class based . . . because of his ability, courage, and/or willingness to exercise
his first amendment constitutional right to speak ‘truth to power,’ on matters of public
concern.” Id. at 10. This sentence of the complaint seems to attempt to raise some sort
of First Amendment argument, and plaintiff states that he spoke about matters “of
public concern, there is no factual support anywhere in the complaint for this vague
Section 1981 and 1985 extend to private actors as well. Griffen v. Breckenridge, 402 U.S. 88,
101 (1971) (section 1985 applies to private conspiracies); Anderson v. Conboy, 156 F.3d 167, 170 (2d
Cir. 1998) (section 1981)
There are other defendants, but it is unclear how they fit into plaintiff’s claims. CENTRO
and the ATU are the only defendants that plaintiff actually mentions as engaging in any conduct in this
case. CENTRO can be considered a state entity, but the ATU is not. However, private conduct can be
attributable to the state in various ways, two of which occur when there is such a close nexus that the
private action is fairly treated as state action or when the private actor operates as a willful participant
in joint activity with the state or its agencies such as in the “conspiracy theory.” Tancredi v. Met. Life
Ins., Co., 316 F.3d 308, 312 (2d Cir. 2003). In Thrall v. CNY CENTRO, Inc., Senior Judge Neal P.
McCurn held that without any allegations of conspiracy, the Union was not acting under color of state
law. 2011 WL 743746, at *4.
reference to the concept of “retaliation.”14
Contrary to plaintiff’s claims, it is quite clear from the ALJ’s decision that there
were “two independent testing laboratories” that tested plaintiff’s urine sample. (Dkt.
No. 1-1 at 3). The reason that the ALJ reversed the denial of plaintiff’s claim was
CENTRO’s failure to establish the “chain of custody” of the samples as required by the
Unemployment Insurance Law. The ALJ stated that the results of the two tests were
inadmissible, and thus, there was insufficient “evidence” of the misconduct “for
unemployment insurance purposes.” Id. (emphasis added). However, the ALJ also
the credible evidence establishes that the claimant was
discharged for testing positive for illegal substances. In this
case, the employer based its termination of the claimant’s
employment on documents provided to them by two
independent testing laboratories.
Id. The ALJ’s decision also notes that during plaintiff’s employment with CENTRO,
he “was counseled on issues related to testing positive for illegal substances, including
a Workforce Re-Entry Contract that was signed on March 14, 2008, after the claimant
allegedly had a positive urine drug test on December 28, 2007.” Id. It is unclear how
Plaintiff does state that, prior to his illegal termination, the defendants discovered that
plaintiff had spoken to “two . . . known African American male ZEBRA TEAM members because his
union had refused/failed to present medical and/or investigatory evidence that his random drug test was
a false positive and/or so-called “positive” was never actually re-confirmed by another (second) drug
lab as was/is mandatory by the U.S. DOT, supra.” (Dkt. No. 1 at 2). The Zebra Team is apparently a
group of individuals that “investigates” allegations made to them, claiming that they have been
subjected to discrimination. See Nuraldin v. Syracuse Academy of Science Charter School, No. 5:10CV-419 at 2 n.1 (N.D.N.Y. May 11, 2010) (McCurn, S.J.). It appears that plaintiff was complaining to
the Zebra Team about something that the Union failed to do. Even if plaintiff were trying to make a
First Amendment retaliation claim, it is as conclusory nature as his other claims and should be
plaintiff could read this decision and suddenly determine that his termination was based
upon his race.
The court also notes that in the complaint, plaintiff claims that the alleged
“Badge of infamy,” attached to plaintiff by defendants was to “unlawfully falsely
classify him then as drug head thereby, subjecting him (without due process) to a
code not applicable to any other employee.” (Dkt. No. 1 at 9) (emphasis added). The
classification of “drug head,” if such a classification existed, is not a suspect
classification, and has nothing to do with plaintiff’s race. Even assuming that
defendants were incorrect in such a “classification,” it would not be the basis of an
equal protection violation. See Burka v. New York City Transit Authority, 680 F. Supp.
590, 602 (S.D.N.Y. 1988) (Transit Authority’s employment restrictions on illegal
narcotics users and perceived users would not violate the Equal Protection Clause to the
extent the different treatment of this “class” bears a rational relationship to policy
goals) (citing Reed v. Reed, 404 U.S. 71, 75 (1971)).
Although plaintiff attempts to assert that he was treated differently than other
employees because he did not receive a second drug test, plaintiff’s own exhibit shows
that there were, in fact, two independent positive tests. Thus, plaintiff cannot rely upon
his exhibit as evidence of the defendants’ racially discriminatory motive. The rest of
the complaint is a rambling discussion, utilizing as many “buzz-words” as possible,
most of which do not make sense. Thus, plaintiff has not stated facts establishing a
plausible equal protection claim or a conspiracy to violate plaintiff’s equal protection
rights under section 1983 or discrimination in the “making of contracts” in violation of
Plaintiff's conspiracy claims under section 1985(3) fail for the same reasons that
his claims fail under a section 1983 claim, conspiracy or otherwise. Plaintiff's
allegations of conspiracy are completely conclusory. It is not even clear from
plaintiff’s own statements that his termination was based on race,15 and as stated above,
his basis for making this conclusion is an administrative decision that he has
misinterpreted. Thus, plaintiff cannot state a claim under section 1985(3). Because
plaintiff cannot state a claim under section 1985, any claim under section 1986 must
The court would point out that 42 U.S.C. § 1988 is not a separate basis for
jurisdiction. Section 1988 provides for the applicability of certain law and provides for
attorneys fees for prevailing parties in the enforcement of other sections of the civil
rights laws. 42 U.S.C. § 1988(a)-(c).
Plaintiff also alleges Title VII of the Civil Right Act of 1964, as one of the many
bases for his employment discrimination claim. 42 U.S.C. § 2000e et seq. The court
would first point out that an essential element of a Title VII claim is the exhaustion of
administrative remedies, and plaintiff may only raise in the district court, claims
contained in, or substantially related to, the administrative charge. Williams v. New
York City Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (citations omitted); Holtz v.
Discrimination against plaintiff because defendants thought he was, in his own words, “a
drug head,” does not qualify as class-based animus for purposes of section 1985.
Rockefeller Co., 258 F.3d 62, 83 (2d Cir. 2001) (citations omitted). A right-to-sue
letter is generally included with the Title VII complaint. See also Legnani v. Alitalia
Linee Aeree, 274 F.3d 683, 686 (2d Cir. 2001). Plaintiff in this case does not allege
that he exhausted his administrative remedies, and it is unlikely that he did so because
he claims that he did not even realize that he was the subject of discrimination until
after he received the ALJ’s Unemployment Insurance decision, three years after
plaintiff was discharged from CENTRO. Thus, plaintiff may not bring a claim under
Americans With Disabilities Act
For some unknown reason, plaintiff cites the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. as a basis for his complaint. (Dkt. No. 1 at 3).
However, nowhere in the complaint is there an allegation that plaintiff has, or was
discriminated against because of, a disability or a perceived disability. Thus, any
claims purportedly under the ADA must be dismissed.
In any event, plaintiff would only be able to bring a Title VII action against his employer, not
against any of the individual defendants because it is well-settled that Title VII does not apply to
individuals. Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (citations omitted). The
court also notes that in New York, an individual must file a charge of discrimination within 300 days of
the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). According to the complaint,
plaintiff was terminated on July 18, 2008. It does not appear that plaintiff ever filed a charge of
discrimination. Plaintiff states that he only found out about the discrimination after the Unemployment
Insurance case ended in his favor in April of 2011. It is unclear how this is possible. If plaintiff had
actually been innocent of the misconduct, he would have known immediately upon his termination that
the expressed reason for the termination was “false.” It would not have taken plaintiff three more years
to make that determination. Plaintiff also states in his complaint that he had consulted the “Zebra
Team” “prior” to plaintiff’s termination. It would appear from this statement that he “suspected”
discrimination even prior to his termination. This attempt to toll the statute of limitations is meritless,
even if it were possible to do so. Thus, any allegations against his employer based upon Title VII
would also be time barred in addition to failing to state a claim.
Labor Management Reporting and Disclosure Act
Plaintiff also cites the Labor Management Reporting and Disclosure Act
(“LMRDA”), 29 U.S.C. § 411 et seq. “as to the Union defendants.” (Dkt. No. 1 at 3).
Plaintiff does not specify upon which sections of the LMRDA he is attempting to base a
claim. Plaintiff makes various conclusory allegations in the complaint that the
“defendants” violated the CBA and should have protected plaintiff from a violation of
his rights, but it is completely unclear how the CBA was violated and on what basis he
raises the LMRDA.
Title I of the LMRDA is the “Bill of Rights of Members of Labor
Organizations.” Chevalier v. Civil Service Employees Ass’n, Inc., No. 1:10-CV-446
(FJS/DRH), 2011 WL 1298739, at *6 (N.D.N.Y. March 31, 2011) (citing 29 U.S.C.
§ 411(a)(2)). Section 411(a)(2) protects a member’s free speech. Under section 412,
the statute creates a cause of action for violations of its provisions. 29 U.S.C. § 412.
Section 411(a)(1) prohibits the denial of equal rights and privileges of membership.
This section refers to unequal treatment of members with respect to their voting rights.
Chevalier, supra at *7. Section 411(a)(5) protects members rights to a “basic fair
hearing.” Id at *8. However, the hearing referred to in the statute involves removal
from the Union, not removal from employment. Id. None of these sections apply to
plaintiff’s purported claims in this action; thus, the LMRDA is not a proper basis for
Plaintiff also cites a variety of New York State statutes and constitutional
provisions. (Dkt. No. 1 at 4). Plaintiff also cites various New York State Penal Law
sections, including obstruction of governmental administration in the second degree
and official misconduct by a public servant. Id. Under 28 U.S.C. § 1367(a), the district
courts have supplemental jurisdiction over state law claims that form part of the same
Article III case or controversy. The court may, however, decline to exercise
jurisdiction if it dismisses all the claims over which it has original jurisdiction. 28
U.S.C. § 1367(c)(3). In light of this court’s finding that the federal claims have no
merit, the court should decline to exercise any supplemental jurisdiction over plaintiff’s
state law claims under 28 U.S.C. § 1367(c)(3).
If the court is dismissing an action sua sponte for failure to state a claim, the
court must give plaintiff an opportunity to amend to cure the defects in the original
complaint, unless the court can rule out any possibility that an amended complaint
would succeed in stating a claim. Abbas v. Dixson, 480 F.3d 636, 639 (2d Cir. 2007).
This case is an example of an action in which the opportunity for amendment should
not be allowed. As stated above, the plaintiff’s only basis for his claim that he was
terminated based on his race is a conclusory determination that the Unemployment
Insurance ALJ found that plaintiff had not committed the misconduct, thus, his
termination was necessarily based on his race. He also claims that he was refused the
opportunity to have a confirming test, as was given to all other bus drivers.
First, the ALJ did not find that plaintiff was innocent of the misconduct. The
ALJ found that CENTRO did not produce sufficient evidence regarding the chain of
custody, thus, did not prove the misconduct for purposes of Unemployment Insurance.
In fact, the first paragraph of the ALJ’s decision specifically states that the evidence
clearly showed that plaintiff was discharged for testing positive for illegal substances.
It is also clear, contrary to plaintiff’s assumption, that there were two independent
testing laboratories, thus, his factual statement is incorrect. There is absolutely no basis
for a claim of racial discrimination based on plaintiff’s facts, nor can plaintiff amend in
such a way as to state a proper claim, given the particular facts of this case.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s motion to proceed IFP (Dkt. No. 2) is GRANTED
FOR PURPOSES OF FILING ONLY, and it is
RECOMMENDED, that this action be DISMISSED IN ITS ENTIRETY sua
sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.
Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: August 1, 2011
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