McCaskill v. ShopRite Supermarket et al

Filing 49

DECISION AND ORDER. ORDERED that plaintiff's 48 "motion" to amend is DENIED, and it is further ORDERED, that in accordance with Judge Kahn's 47 Order of 7/24/2013, this action is DISMISSED WITH PREJUDICE. Signed by US Magistrate Judge Andrew T. Baxter on 8/7/2013. {mailed copy of order to pro se plaintiff via U.S. mail}(dpk)

McCaskill v. ShopRite Supermarket et al

Doc. 49

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MATTHEW McCASKILL,
Plaintiff,
-v.-

7:13-CV-238
(LEK/ATB)

SHOPRITE SUPERMARKET, et al.,
Defendants.
MATTHEW McCASKILL, Plaintiff, pro se
MARK DIANA, ESQ., Attorney for Defendants ShopRite and Ausiano
ANDREW T. BAXTER, United States Magistrate Judge
DECISION and ORDER
Presently before the court is an amended complaint, filed by plaintiff in
accordance with the order of the Honorable Lawrence E. Kahn, Senior U.S. District
Court Judge, dated July 24, 2013. (Dkt. Nos. 47, 48). On July 24, 2013, Senior Judge
Kahn granted defendants ShopRite’s and Ausiano’s motion to dismiss portions of
plaintiff’s original complaint and denied plaintiff’s six1 motions to amend. (Dkt. No.
47). The order further allowed plaintiff one more opportunity to move to amend his
complaint in accordance with the legal principles discussed in Senior Judge Kahn’s
order. (Dkt. No. 47 at 28). For the following reasons, this court finds that plaintiff has
failed to comply with Senior Judge Kahn’s order. Therefore, I will order denial of
plaintiff’s “motion” to amend, and in accordance with Judge Kahn’s direction, will
1

There were actually seven motions to amend. Plaintiff filed his first motion to amend prior
to the filing of defendants’ motion to dismiss, but I ordered the motion denied and the amended
complaint stricken because the documents were not in the proper form and could not be filed as
plaintiff intended because the motion was not in the proper form, and the document was not a
“complete” pleading as required under the Local Rules. (Dkt. Nos. 19, 20).

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order dismissal of the amended complaint with prejudice.
DISCUSSION
I.

Facts and Procedural History
Plaintiff filed his original complaint on March 4, 2013. (Dkt. No. 1). Plaintiff

filed the original complaint pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”),2 loosely alleging that defendant ShopRite Supermarket discriminated
against him because of his race, sex, and “insubordination.” (Compl. at ¶¶ 4, 6).
Plaintiff alleges that he was terminated from his job as a result.3
After noting various deficiencies in the complaint, I granted plaintiff’s motion
to proceed in forma pauperis (“IFP”) and ordered service of the complaint due to the
liberality with which pro se complaints must be treated. Bertin v. United States, 478
F.3d 489, 491 (2d Cir. 2007) (citing inter alia Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). Only defendants ShopRite and Ausino appear to have been served in
this case, and they have appeared through counsel.
On May 6, 2013, defendants ShopRite and Ausiano filed a motion to dismiss
plaintiff’s common law claims of Intentional Infliction of Emotional Distress (“IIED”)
and Defamation. (Dkt. No. 22). After the motion to dismiss was filed, plaintiff began
a barrage of motions to amend. (Dkt. No. 24, 25, 34, 35, 36, 43). In his lengthy July
24, 2013 order, Senior Judge Kahn denied all of plaintiff’s motions to amend and

2

42 U.S.C. § 2000e et seq.

3

Plaintiff is currently incarcerated at Riverview Correctional Facility. It does not appear that
his incarceration is in any way related to this action.
2

granted the defendants’ motion to dismiss the plaintiff’s common law claims with
prejudice. At the end of Senior Judge Kahn’s order, he gave plaintiff one more chance
to file a proper motion to amend his complaint, which would include a proposed
amended complaint for the court’s review. Judge Kahn also reviewed each of
plaintiff’s prior proposed amended complaints and found that all but one claim were
subject to dismissal “with prejudice.” (Dkt. No. 47 at 28-29).
In the order, Judge Kahn stated that if plaintiff made a motion to amend, he
could not seek to join UFCW Local (“the Union”) or Melissa Stiles as defendants.
(Dkt. No. 47 at 28). The order further stated that plaintiff could not bring a Title VII
hostile environment claim or an IIED claim against “Defendants.” (Id.) Judge Kahn
stated that the “motion” must comply with Fed. R. Civ. P. 15 and Local Rule 7.1(a)(4)
in that a motion to amend must be accompanied by a complete proposed amended
complaint which includes all the claims plaintiff wishes to bring and any facts that he
wishes to allege. (Id.)
II.

Legal Standards
Fed. R. Civ. P. 15(a) provides that the court should grant leave to amend “freely

. . . when justice so requires.” While a pro se plaintiff’s submissions are to be
afforded the greatest liberality,4 a motion to amend may be denied where it appears
that granting leave to amend is unlikely to be productive or the amendment is futile.
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).

4

Burgos, supra.
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III.

Amended Complaint
Judge Kahn has already reviewed several of plaintiff’s proposed amended

complaints and has found most of the claims meritless and futile. He afforded
plaintiff one more opportunity to move to amend to cure the deficiencies in the claims
that were dismissed “without prejudice.” Unfortunately, plaintiff has not heeded
Judge Kahn’s order. His latest document is not a “motion” to amend, it is simply an
“amended complaint.” (Dkt. No. 48). Even if the court were to excuse the fact that
plaintiff did not make a proper “motion”5 to amend, the document that he filed as the
amended complaint did not cure any of the defects cited by Judge Kahn, and in fact,
has simply repeated prior claims that Judge Kahn dismissed “with prejudice.”
Although plaintiff has filed his amended complaint on a form for Title VII
discrimination claims, he has now left blank the boxes that he must check, stating the
discriminatory conduct. (Dkt. No. 48, ¶ 6). There is absolutely no indication what
discrimination plaintiff is claiming. Judge Kahn stressed that the new amended
complaint must be a “complete” pleading. (Dkt. No. 47 at 28). A complete pleading
may not incorporate any facts or claims that plaintiff brought in his previous
complaints.6 Thus, plaintiff’s failure to include the basis for his alleged

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The court also notes that plaintiff has not indicated that he has served defense counsel with
this new document. This is also a deficiency that the court would excuse, however, there are multiple
other reasons that this complaint should be dismissed with prejudice.
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Plaintiff has also failed to include his “right-to-sue” letter in this new amended complaint,
although the court would have excused that deficiency.
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“discrimination” makes the new amended complaint deficient on its face.7
1.

Attempt to Revive Claims Dismissed With Prejudice

Judge Kahn denied with prejudice plaintiff’s motion to add any claims of a
hostile work environment against ShopRite.8 (Dkt. No. 47 at 29). The “Second Cause
of Action”9 in plaintiff’s new amended complaint is labeled “hostile environment.”
(Dkt. No. 48 at CM/ECF p.3). The claim reads as follows:
I felt singled out [.] I was never offered any help with any of
my job titles. They said I was slow and insufficient which
caused my other peers and co-workers to distance them [sic]
from me because of the lable [sic] that I was given.
(Id.) Plaintiff now seems to be claiming that he was “singled out” because he was
slow and “insufficient.” Although he may mean “inefficient,” either way, singling an
employee out because he is inefficient or slow is not a basis for employment
discrimination under Title VII.
Judge Kahn also held that plaintiff could not bring a defamation claim against
Melissa Stiles. (Dkt. No. 47 at 28). Plaintiff has done just that. In third cause of

7

This is particularly true because the facts as now stated, make the basis for plaintiff’s claims
even more unclear in the context of a Title VII action. In his original complaint, plaintiff checked the
boxes labeled “race” and “sex,” although the fact in his new complaint do not mention either basis for
discrimination. In fact, the only reason “sex” may be involved is that plaintiff alleges that “he” was
fired because one of his co-workers accused him of sexual harassment.
8

As I pointed out in my filing order, there is no action for Title VII violations against an
individual such as defendant Ausiano. (Dkt. No. 9 at 3) (citing Patterson v. County of Oneida, 375
F.3d 206, 221 (2d Cir. 2004) (citations omitted); Davis Bell v. Columbia Univ., 851 F. Supp. 2d 650,
687 (S.D.N.Y. 2012) (citations omitted).
9

Although this cause of action is labeled “Second,” there is no “First” cause of action in this
amended complaint.
5

action, he writes, “defamation” and alleges that he was falsely accused of sexual
harassment by Melissa Stiles. This claim cannot proceed in light of Judge Kahn’s
order.
2.

Attempt to Amend Claim Dismissed Without Prejudice

Judge Kahn found that the only potentially viable claim was pursuant to section
301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 against
plaintiff’s employer, ShopRite. In his amended complaint, plaintiff’s first cause of
action states that the Union did not help him when he was terminated. He states that
the Union “took out union dues. They also [sic] breach of contract. Because I was
terminated on allegation without a hearing and I was done with my probationary
period. I had 77 days.” (Dkt. No. 48 ¶ 9 at CM/ECF p.5). It appears that plaintiff is
only referring to the Union as a defendant in this cause of action.
However, Judge Kahn found that plaintiff could not allege a claim against the
Union under section 301 because plaintiff could not prove that the Union violated its
duty of fair representation, an element of a “hybrid” section 301 claim. (Dkt. No. 47 at
18). Thus, in order to state a valid claim under section 301, plaintiff would have to
make a claim against ShopRite for breach of the collective bargaining agreement
(“CBA”) that it had with the Union.
In this new complaint, plaintiff merely states that the Union breached its
contract because plaintiff was terminated “on allegation” without a hearing. The CBA
as cited by Judge Kahn in his decision states that “there shall be no suspension
because of work performance, absenteeism and/or tardiness, without prior written
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notice having been given to the Union and the employee involved.” (Dkt. No. 47 at
19). Plaintiff states that he was fired because he sexually harassed a female employee,
“on allegation without a hearing.” The CBA does not provide for a “hearing,” only
“notice” to the Union and the employee, and none of the reasons for termination or
suspension listed in the agreement include “sexual harassment.” Plaintiff has not
stated a claim under section 301 against ShopRite by simply alleging “breach of
contract” apparently against the Union on a Title VII form.
In any event, plaintiff seems to be claiming that the violation was that he did not
get a hearing. The excerpt from the CBA does not require a hearing (only notice) and
is not related to the reason for plaintiff’s termination. Plaintiff has not succeeded in
stating a viable cause of action against ShopRite. Judge Kahn’s order was quite clear
that plaintiff would only have one more chance to submit a viable complaint. Thus, in
accordance with that order, plaintiff’s motion to amend is denied, and plaintiff’s
action is dismissed with prejudice.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s “motion” to amend (Dkt. No. 48) is DENIED, and
it is further
ORDERED, that in accordance with Judge Kahn’s Order of July 24, 2013
order, this action is DISMISSED WITH PREJUDICE.
Dated: August 7, 2013

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