Castro v. Covenant Aviation Security, LLC

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATION for 46 Report and Recommendations, 42 Motion to Strike filed by Covenant Aviation Security, LLC, 35 Motion to Dismiss filed by Jose Castro, 27 Motion to Strike filed by Covenant Aviation Security, LLC. Having reviewed the R&R for clear error and finding none, the Court hereby adopts Magistrate Judge Fox's R&R in full. Covenant's motions to strike are DENIED. The Clerk of Court is directed to terminate the motions at docket numbers 13, 27, 35 and 42. The reference to Magistrate Judge Fox continues for further disposition of this matter. SO ORDERED. (Signed by Judge Paul A. Crotty on 7/22/2013) Copies Mailed By Chambers. (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
OOC#: _____________
DATE FILED:

July 22.2013

JOSE CASTRO,
Plaintiff,
v.

12 Civ. 3037 (PAC) (KNF)
ORDER ADOPTING REPORT
AND RECOMMENDA nON

COVENANT AVIATION SECURITY, LLC,
Defendant.

-----------------------------------------x
HONORABLE PAUL A. CROTTY, United States District Judge:
On April 17, 2012, Plaintiff Jose Castro ("Castro"), acting pro se, filed a Complaint
against Covenant Aviation Security, LLC ("Covenant") alleging employment discrimination
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, and the Americans with Disabilities Act of 199 0. The matter was referred to Magistrate
Judge Kevin Nathaniel Fox on April 27, 2012. On July 27, 2012, Covenant filed a motion to
strike the Complaint. In lieu of opposing the motion , Castro ftled an Amended Complaint on
August 20, 2012, ' in which he dropped his claim under the Americans with Disabilities Act.
Covenant filed a motion to strike Castro's Amended Complaint on September 6, 2012,

and

subsequently filed a motion to strike both the original Complaint and the Amended Complaint on
December 21, 2012 2

On May 7, 2013, Magistrate Judge Fox issued a Report and

' Though Castro's Amended Complaint was not amended as a matter of course, with the Court's
leave or with written permission from Covenant, see Fed. R. Civ. P I Sea), Covenant impliedly
consented to the filing of the Amended Complaint by moving to strike, without raising the issue
of improper timing. See 6 Charles A. Wright, Arthur R. Miller, Mary Kay Lane, Richard L.
Marcus & Adam N. Steinman, Federal Practice and Procedure § 1490 (3d ed. 2010).
2 Since the Amended Complaint superseded the original and "render[ed) it of no legal effect,"
In!'l Controls Corp. v. Vesco, SS6 F.2d 665, 668 (2d Cir. 1977), the R&R properly focused on
those portions of Defendant's motions addressing the Amended Complaint rather than the
original Complaint, which is now moot.

Recommendation ("R&R") that the Court deny Covenant's motions to strike the Amended
Complaint; that Covenant' s motions to strike the initial Complaint be closed as moot; and that
Plaintiffs motion to dismi ss be closed, as it is not a motion but rather Plaintiffs opposition to
the motion to strike. No objections to the R&R were filed.

For the reasons that follow, the

Court adopts R&R in its entirety.
BACKGROUND 3
Castro, a 45 years old Hispanic male, alleges that Covenant gave preferential hours and
work to younger employees and withheld vacation time, holiday hours, and other monetary
considerations that Castro was owed. Covenant forced Castro and a Hispanic coworker to work
outdoors in freezing conditions while other employees were allowed to rotate to protect them
from the weather. While other employees were allowed to use a vehicle to get to the nearest
restroom , Castro was denied this amenity. Instead , Castro had to use a "paddy box which had no
paper and was filthy, " and in which he was unable to use his prescribed eye medication, which
resulted in Castro having to undergo eye surgery. (Am. Compl. at 2-3). Castro also alleges that
he was denied use of his prescribed safety glasses, that his car was set on fire while he was at
work, and that Covenant did not properly discipline a security guard who took an "illegal
picture" of him. (ld. at 3-4.) When Castro complained, his manager retaliated by attempting to
have Castro fired , writing Castro up for absences necessitated by medical appointments, and
asking Castro sign a disciplinary form, all of which created a ho stile work environment.
DISCUSSION
District courts are empowered to "accept, reject, or modify, in whole or in part, the
findings or recommendations made by (a] magistrate judge." 28 V.S.c. § 636(b)(1)(C). The

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All facts are taken from the R&R, unless otherwise indicated.
2

Court may adopt those portions of the R&R to which "no objections have been made and which
are not facially erroneous" Wilds. v. United Parcel Serv., Inc., 262 F. Supp. 2d 163 , 170
(S.D.N.Y. 2003). Because Castro is proceeding pro se, the Court reads his filings and supporting
papers4 liberally, construing them to raise the strongest arguments that they suggest. Burgos v.
Hopkins, 14 F.3d 787 , 790 (2d Cir. 1994).
Covenant argues that the Amended Complaint's reference to the settlement of a union
arbitration should be struck because it is not admissible as evidence under Fed. R. Evid. 408. At
this stage, however, "the court ... has only allegations and no evidence before it." D.H. Blair &
Co., Inc. v. Gottdiener, 462 F.3d 95, 107 (2d Cir. 2006). While the Court need not currently take
a position on the admissibility on any evidence that the parties may wish to submit at a future
date, Covenant ' s motion to strike this information from the Amended Complaint is rejected
because the Federal Rules of Evidence are inapposite at this stage of the proceedings.
More broadly, the Amended Complaint can be divided into two sections. First, Covenant
concedes that paragraph 1 of the Amended Complaint includes "some scant references to age
discrimination." (Def.

Mot. to Strike Original Compi. & Am. Compl. at 6.)

Since such

allegations are relevant to Castro's claims, striking paragraph I is not warranted. See Lipsky v.
Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976).
Second , paragraphs 2 through 9 of the Amended Complaint address Covenant's alleged
racial discrimination.

These paragraphs and the inferences reasonably drawn from them are

sufficient to establish that Castro is a member of a protected class and that Covenant created a
hostile work environment under Title VII. Since the allegations are not "redundant, immaterial,

'On December 27,2012 , Castro ftled what he styled as a "Motion to Deny Defendant's Strike."
The Court treats this document as his opposition to Covenant's motions, rather than a separate
motion in its own right.
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impertinent or scandalous," they will not be struck. Fed. R. Civ. P. 12(f).
CONCLUSION
Having reviewed the R&R for clear error and finding none, the Court hereby adopts
Magistrate Judge Fox's R&R in full. Covenant's motions to strike are DENIED. The Clerk of
Court is directed to terminate the motions at docket numbers 13, 27, 35 and 42.
to Magistrate Judge Fox continues for further disposition of tllis matter.
Dated: New York, New York
July 22,2013

SO ORDERED

&~

PAUL A. CROTTY
United States District Judge

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The reference

Copy Mailed By Chambers To:

Jose Castro
P. O. Box 347

New York, NY J 0035

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