Garvey v. Shoppingtown Mall et al

Filing 12

DECISION AND ORDER adopting Report and Recommendations re 6 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Peebles's Report, Recommendation, and Order (Dkt. No. 6) is ADOPTED in full; and the Court further ORDERS that Plaintiff's amended complaint (Dkt. No. 8) is DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment dismissing this action; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 8/22/17. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SHAUN GARVEY,
Plaintiff,
vs.

5:16-CV-1136
(MAD/DEP)

SHOPPINGTOWN MALL, MOONBEAM
CAPITAL INVESTMENTS,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SHAUN GARVEY
P.O. Box 12
Liverpool, New York 13088
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
On September 19, 2016, Plaintiff Shaun Garvey filed this employment discrimination
action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,
against Defendants Springtown Mall and Moonbeam Capital Investments. See Dkt. No. 1. That
same day, Plaintiff filed a motion for leave to proceed in forma pauperis ("IFP"). See Dkt. No. 2.
Magistrate Judge Peebles issued a Report, Recommendation, and Order granting Plaintiff's IFP
application and recommending that the Court dismiss Plaintiff's complaint with leave to amend.
See Dkt. No. 6 at 12. Although Plaintiff did not file objections to the Report, Recommendation,
and Order, he did file an amended complaint. See Dkt. No. 8. Presently before the Court are
Magistrate Judge Peebles's Report, Recommendation, and Order and Plaintiff's amended
complaint.

II. BACKGROUND
Sometime in 2015, Plaintiff was working as a project manager for an outside company in
Shoppingtown Mall in Dewitt, New York. See Dkt. No. 1 at 3. Defendants allegedly harassed,
insulted, and threatened Plaintiff, and Plaintiff was called a "sissy" and told that he was not
welcome at the mall. See id. at 3-4. Defendants also threatened Plaintiff's employer, stating that
they would not renew their contract with Plaintiff's employer unless he was fired. See id. In his
initial complaint, Plaintiff alleged that he was harassed and discriminated against by
Shoppingtown Mall because he is a gay man. See id. Ultimately, Plaintiff was fired from his job.
See id. at 3. On October 6, 2016, Magistrate Judge Peebles issued a Report, Recommendation,
and Order recommending that the Court dismiss Plaintiff's complaint with leave to amend. See
Dkt. No. 6. Plaintiff did not object to the Report, Recommendation, and Order, but he did file an
amended complaint on October 24, 2016. See Dkt. No. 8.
III. DISCUSSION
A.

Standard of Review
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the

court determines that . . . the action or appeal (i) is 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). In making this determination, "'the court has the
duty to show liberality towards pro se litigants,' however, 'there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis.'" Griffin v. Doe, 71 F. Supp. 3d 306, 311 (N.D.N.Y. 2014)
(quoting Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y. 1994)); see also Thomas v.

2

Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power
to dismiss a complaint sua sponte if the complaint is frivolous).
When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by applicable
requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not require
'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (other citations omitted).
To survive dismissal for failure to state a claim, a party need only present a claim that is
"plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation omitted). In
determining whether a complaint states a claim upon which relief may be granted, "the court must
accept the material facts alleged in the complaint as true and construe all reasonable inferences in
the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, "the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation
omitted).
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
3

court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
B.

The Report-Recommendation
Title VII prohibits discrimination based on "race, color, religion, sex, or national origin."

42 U.S.C. § 2000e-2(a)(1). But it "is well-settled in this circuit . . . [that] Title VII does not
prohibit harassment or discrimination because of sexual orientation." Dawson v. Bumble &
Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (quoting Simonton v. Runyon, 232 F.3d 33, 35-36 (2d
Cir. 2000)); accord Chrisiansen v. Omnicom Grp. Inc., 852 F.3d 195 (2d Cir. 2017). The ReportRecommendation therefore dismissed Plaintiff's Title VII claims to the extent that they were
based on his sexual orientation.
Although the Second Circuit has found that Title VII does not proscribe discrimination
based on sexual orientation, it has nevertheless recognized Title VII claims based on "the 'gender
stereotyping' theory of Title VII liability according to which individuals who fail or refuse to
comply with socially accepted gender roles are members of a protected class." Dawson, 398 F.3d
at 218. In order to state a Title VII claim for discrimination based on a theory of gender
stereotyping, a plaintiff must show that he was discriminated against because he failed to conform
to gender stereotypes through behavior or appearance. See Cargian v. Breitling USA, Inc., No.
15-CV-1084, 2016 WL 5867445, *4 (S.D.N.Y. Sept. 29, 2016) (citations omitted).
Here, Magistrate Judge Peebles recommended that the Court dismiss Plaintiff's complaint
with leave to amend to assert a claim based on gender stereotyping. See Dkt. No. 6 at 10-11.

4

Since Plaintiff did not submit any objections, the Court has reviewed the ReportRecommendation for clear error and found none.
C.

The Amended Complaint
In granting Plaintiff leave to amend, Magistrate Judge Peebles outlined the requirements

for stating a claim under Title VII. See id. Specifically, Magistrate Judge Peebles noted that any
amended complaint would need to "clearly set forth the facts that give rise to the claims,
including the dates, times, and places of the alleged underlying acts, and each individual who
committed each alleged wrongful act." Id. at 11. Furthermore, Magistrate Judge Peebles
explained that any amended complaint would replace the existing complaint and that it could not
rely on or reference any pleading previously filed with the Court. See id.
Plaintiff's amended complaint once again fails to state a claim for gender stereotyping
under Title VII. The amended complaint is almost entirely devoid of factual allegations, instead
consisting mainly of legal arguments about discrimination under Title VII. See Dkt. No. 8.
Indeed, the amended complaint does not even include most of the facts set forth in the original
complaint, including the allegation that Plaintiff was called a "sissy." See Dkt. Nos. 1, 8.
Although Plaintiff attaches letters from three different individuals who witnessed Plaintiff being
harassed and yelled at, none of those letters suggests actionable discrimination of any kind. See
Dkt. No. 8-1.
Despite receiving clear instructions from Magistrate Judge Peebles, Plaintiff failed to cure
the deficiencies in his initial pleading. Since Plaintiff has already had the opportunity to amend
his complaint, the Court now dismisses the amended complaint with prejudice. See Abascal v.
Hilton, No. 04-CV-1401, 2008 WL 268366, *8 (N.D.N.Y. Oct. 4, 2012) ("[G]ranting a pro se

5

plaintiff an opportunity to amend is not required where the plaintiff has already been given a
chance to amend his pleading.").
After carefully reviewing Plaintiff's submissions, Magistrate Judge Peebles's Report,
Recommendation, and Order, the applicable law and for the above-stated reasons, the Court
hereby
ORDERS that Magistrate Judge Peebles's Report, Recommendation, and Order (Dkt. No.
6) is ADOPTED in full; and the Court further
ORDERS that Plaintiff's amended complaint (Dkt. No. 8) is DISMISSED with
prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment dismissing this action; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: August 22, 2017
Albany, New York

6