Jiggetts v. United Parcel Service et al

Filing 62

MEMORANDUM & ORDER: granting 37 Motion to Dismiss; granting 39 Motion to Dismiss. Plaintiff has been given multiple opportunities to replead his claims and yet he still fails to plausibly, and clearly, allege any claim under the statutes enumer ated in his Amended Complaint against any of the Defendants. Thus, the Court dismisses the Amended Complaint. Unless otherwise noted, all claims discussed in this opinion are dismissed with prejudice, meaning Plaintiff may not make further attempts t o replead those claims. Should the Plaintiff seek to amend his complaint to add any additional claims not dismissed with prejudice in this Order, he must do so on or before April 17, 2017. This will constitute the Plaintiff's final opportunity t o replead as to any claims not dismissed with prejudice. Failure to plausibly or decipherably plead such claims will result in dismissal without further opportunity to replead. Further, Plaintiff is hereby advised that any new amended complaint will completely replace the Second Amended Complaint. Accordingly, if Plaintiff files an amended complaint, it should include all of the information he believes is necessary to make a short, plain statement explaining why he is entitled to relief against any Defendant as to any claim the Court does not dismiss with prejudice in this Order. SO ORDERED (Signed by Judge Alison J. Nathan on 3/27/2017) (ama)

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MEMORANDUM & ORDER
United Parcel Service et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Before the Court are two motions to dismiss prose Plaintiff James Jiggetts's
Second Amended Complaint, filed by Defendant Mohanie Sukhu, see Dkt. No. 37; Dkt.
No. 38 (hereafter "Sukhu MTD"), and Defendants United Parcel Service ("UPS"), John
Mannion, and Doug Trandiak (collectively, the "UPS Defendants"), see Dkt. No. 39; see

also Dkt. No. 41 (hereafter "UPS MTD"). For the reasons that follow, the motions to
dismiss are GRANTED.

I.

Procedural History and Background

A. Relevant Procedural History
On October 10, 2014, pro se Plaintiff James Jiggetts filed a Complaint against
some, but not all, of the Defendants in this action, alleging, with almost no factual
specificity, violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq,
the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., the New York State Labor Laws,
N.Y. Lab. Law§§ 650, et seq., and the Contracts Clause of the United States
Constitution, Art. I,§ 10, Cl. 1. See Dkt. No. 1. On January 6, 2015, Chief Judge Preska
dismissed that Complaint sua sponte, on the ground that the "allegations [were] so

1

unclear and without factual detail that the Court [could not] discern whether Plaintiff
ha[ d] stated a plausible claim for relief," and that the Court could not "understand what
Plaintiffs federal claims [were]." Dkt. No. 4 at 3. Thereafter, the Plaintiff, with leave of
the Court, filed his First Amended Complaint. See Dkt. No. 5. The Defendants moved to
dismiss that complaint on the grounds that it was indecipherable and that the Plaintiff had
not provided a right to sue letter from the EEOC. See Dkt. No. 19. The Plaintiff
thereafter filed what he denoted an opposition to the Defendants' motion, see Dkt. No.
27, but which the Court construed as a Second Amended Complaint, Dkt. No. 28. On
March 23, 2016, the Co mi administratively denied the pending motion to dismiss and
deemed the Second Amended Complaint the operative complaint in this case. See id.; see

also Dkt. No. 27 (hereafter "Amended Complaint" or "Am. Compl."). Sukhu moved to
dismiss the Amended Complaint on April 20, 2016, Dkt. No. 37, and the UPS Defendants
moved to dismiss on April 25, 2016, Dkt. No. 39.

B. The Amended Complaint
In his Amended Complaint, the Plaintiff cites a number of federal statutes,
pursuant to which he purports to bring claims. He cites the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201 et seq.; the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001, et seq.; the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101, et seq.; 42 U.S.C. § 1983; the Older Workers Benefit Protection Act
("OWBPA"), 29 U.S.C. § 626(£); and the Age Discrimination in Employment Act
("ADEA''), 42 U.S.C. § 621, et seq. See Am. Com pl. at 6-8. The Plaintiff also makes
several ambiguous references to additional legal regimes. See Am. Compl. at 3 (citing to
"the C.F.R. 48, Chapter 54, Subchapter 8b on the right of the employee regarding
2

whistleblower rights"); id. at 6 (noting that Plaintiff's "NYS Civil Rights Laws of Article
4-7, Sects. 74-77 have been called into question ... along with [his] NYS, Labor Rights260-j").
The text of the Amended Complaint itself is largely devoid of factual allegations
in support of these claims. Jiggetts, however, also attaches to the Amended Complaint a
letter he purportedly sent to the Equal Employment Opportunity Commission ("EEOC")
on June 12, 2014, in connection with a pending charge. See Am. Compl. at 26-35; see
also Leonard F. v. Israel Discount Bank of N. Y, 199 F.3d 99, 107 (2d Cir. 1999) (stating

that courts may consider facts in documents appended to the complaint in deciding a
motion to dismiss). Plaintiff does not identify the date that he made that charge to the
EEOC, or allege anywhere in his Amended Complaint which specific allegations or
claims he made to the EEOC. See generally Am. Compl. He has provided, however, a
right to sue letter arising out of the otherwise unidentified charge. See Dkt. No. 42, Ex.
0.1

In the letter, Plaintiff alleges that he worked for UPS for 26 years prior to his
termination. See Am. Compl. 26. He claims that, over those 26 years, white male
employees were promoted over him, often despite lacking the requisite qualifications for
the positions or otherwise having violated company policies, and that his complaints
about such treatment were either ignored or met with hostility. See id. at 26-30. He also
alleges that he was an insulin-dependent diabetic, but that, at various points over a span

1

The UPS Defendants aver in their motion to dismiss that they sought a copy of the Plaintiff's
EEOC Charge from the EEOC itself pursuant to the Freedom of Information Act, but were told by the
EEOC, on April 12, 2015, that: "At this time we are unable to grant your request, because the records you
seek, we are unable to locate. We have no choice after a thorough search but to consider this file lost. The
EEOC will continue to look for the information requested and if found will provide you with the
information." Dkt. No. 41 at 5.

3

of 10 years, managers at UPS forced him to work night shifts, which he was unable to do
without compromising his health, at times in retaliation for complaints he made of racial
discrimination. See id. at 27-30. Plaintiff claims that at least one white, Irish male coworker received "special provisions" for his diabetes, but that the same was not offered to
Plaintiff. Id. at 27.
In 2011, Plaintiff alleges that his manager at the time, a white male who Plaintiff
claims had previously been terminated for a violent altercation in the workplace, called
Plaintiff a derogatory racial name. Id. at 28-29. When Plaintiff complained of the
incident to management, he alleges that he was told that the manager denied making any
inappropriate statement. Id. Shortly after this meeting, Plaintiff was not given a raise for
the first time in his 24 years at UPS, as a result of a bad performance review he received
from the manager in question. Id. at 29. Plaintiff thereafter filed a charge with the EEOC
- an earlier charge from that preceding the present lawsuit. Id. at 29. 2
At some point thereafter, Plaintiff began to work under Kathy Bresnahan, a white
woman. Id. at 29. Plaintiff alleges that under Bresnahan's tenure, Plaintiff was again
forced to work the night shift, although he alleges that Jim Fitzgerald, the head of the
Department where Plaintiff worked, was aware that Plaintiff was an insulin-dependent
diabetic and "that the AD.A. said [he] could not work nights." Id. at 30. Plaintiff does

2
Plaintiff filed this charge on January 23, 2013. In that charge, he explicitly brought claims based
on Title VII on the basis, inter alia, of the alleged discrimination and retaliation described above. See Dkt.
No. 42, Ex. L. The Court may take judicial notice of this charge, and it is, in any case, referenced in the
June 2014 letter. See Am. Comp!. at 33; see also Clarke v. White Plains Hosp., No. 13-CV-5359 (CS),
2015 WL 13022510, at *3 (S.D.N.Y. Apr. 22, 2015), aff'd, 650 F. App'x 73 (2d Cir. 2016) (summary
order) (noting that a court may take judicial notice of EEOC charges); accord Jenkins v. St. Luke'sRoosevelt Hosp. Ctr., No. 09 CIV. 12 (RMB) (MHD), 2009 WL 3682458, at *5 (S.D.N.Y. Oct. 29, 2009).
The EEOC issued a right-to-sue letter relating to that charge on May 16, 2013, but no timely lawsuit was
brought. Dkt. No. 42, Ex. N.

4

not specify precisely when this event occurred, or ,,vhether he complained of the
treatment (as he had previously done). Id.
After working for Bresnahan, Plaintiff was assigned (at an unspecified date) to
work for John Mannion, a white Irish male who supervised Plaintiff in the Loss
Prevention and Security Department. Id. at 27, 30. Plaintiff claims that Mannion was
promoted over several people who were not white males in loss prevention, though
Plaintiff alleges that these people had been in the department longer and "yielded very
good results." Id. at 27. Plaintiff also alleges that Mannion had previously quit UPS to
seek an outside opportunity, but that Mannion had been rehired, despite a custom of not
hiring such individuals back, and ultimately given a supervisory position over non-white
employees. Id. In August 2013, Mannion informed Plaintiff that he was not getting a
raise, and that Mannion was "not recommending [Plaintiff] to get [his] stock." Id. at 30.
In August 2013, Plaintiff alleges that he was falsely accused of sexual assault by a
security guard, Mohanie Sukhu, who worked for a company called "Adelis Security." Id.
at 30. After the accusation, Plaintiff alleges that Mannion and Doug Trandiak, UPS's
human resources manager, put Plaintiff on a leave of absence status, without his
permission, resulting in his losing medical benefits for 30 days. Id. at 32. Plaintiff spoke
to human resources and Mr. Trandiak, neither of whom restored his benefits. Id. In a
meeting that took place on September 13 of either 2013 or 2014, 3 Mannion, and Trandiak
informed Plaintiff he was being terminated "for violation of [UPS's] Anti-Harassment

3
The Plaintiff lists this date as 2014 in his EEOC letter. See id. at 32. However, the letter itself is
dated June 12, 2014 (months prior to September 2014), and the Plaintiff alleges that this conversation
occurred only weeks after his interactions with Sukhu - which he alleges occurred in August 2013. See id.
at 30-32.

5

Policy." Id. After he was terminated, Plaintiff sought relief through the Employee
Dispute Resolution process, but UPS "den[ied him] the chance to go to Arbitration,'' the
final step of that process. Id. at 32-33.
In his letter to the EEOC, Plaintiff asserts that the choice to terminate him was
motivated by discriminatory animus, on the basis of Plaintiffs race, and retaliatory
animus, on the basis of his complaints about racial discrimination. Id. at 33-34. He
alleges that Trandiak and Mannion used Sukhu's complaint as pretense to fire the
Plaintiff. Id. at 34-3 5. Plaintiff also alleges that, as result of his termination, he will not
be able to collect his pension until the age of 62, whereas he would otherwise have been
eligible to collect his pension at the age of 55. Id. at 34. Plaintiff notes that, by firing
him, UPS "save[d] on paying [his] pension and benefits for 10 years." Id. Plaintiff also
alleges that, because of his termination, he had to pay $500 monthly premiums for
"COBRA [Consolidated Omnibus Budget Reconciliation Act] coverage,'' and that
"[UPS] cashed some of the checks that [he] sent in and some they did not cash," resulting
in the termination of Plaintiffs benefit coverage. Id. at 33.

II.

Discussion

A. LegalStandard
To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. The "plausibility standard is not akin to a 'probability
6

requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully." Id. If a complaint "pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of
entitlement to relief."' Id. (quoting Twombly, 550 U.S. at 557).
A court evaluating a motion under Rule 12(b)(6) must "accept all allegations in the
complaint as true and draw all inferences in the non-moving pmiy's favor." LaFaro v. N

Y Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation
marks omitted). The Court is not, however, "bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)). The Comi may "consider any written instrument attached to
the complaint, statements or documents incorporated into the complaint by reference ...
and documents possessed by or known to the plaintiff and upon which [he] relied in
bringing the suit." ATS! Commc 'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007).
When assessing Jiggett' s pleadings in this case, the Court is further mindful that "the
submissions of a pro se litigant must be construed liberally and interpreted to raise the
strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d
4 71, 4 74 (2d Cir. 2006) (emphasis omitted) (internal quotation marks omitted).
Nevertheless, if a pro se plaintiff makes allegations that are "so confused, ambiguous,
vague, or otherwise unintelligible that [their] true substance, if any, is well disguised,"
dismissal of any claims such allegations purport to raise is appropriate. Simmons v.

Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995); see also Trice v. Onondaga Cty. Just. Ctr., 124 F.

7

App'x 693, 694 (2d Cir. 2005) (summary order) (affirming dismissal of a prose
complaint as unintelligible).
Finally, when a complaint is vague or lacks detail, a district court "may treat a motion
to dismiss as a motion for a more definite statement." Baptista v. Har{ford Bd. of Educ.,
427 F. App'x 39, 43 (2d Cir. 2011) (summary order); see also id. ("[R]equiring a limited
expansion of a complaint ... under Rule 12(e) ... is a matter generally left to the district
court's discretion." (quoting Hodgson v. Va. Baptist Hosp., Inc., 482 F.2d 821, 824 (4th
Cir. 1973)). In such a circumstance, the Court may grant the plaintiff - especially a pro
se plaintiff - leave to amend to cure any vagueness or ambiguity. See Baptista, 427 F.
App 'x at 3 (noting that the district court repeatedly granted the pro se plaintiff leave to
amend); but see id. ("A litigant's repeated failure to provide that more definite statement
can itself warrant dismissal.").

B. Analysis
As noted, in the Amended Complaint, the Plaintiff explicitly cites to a number of
federal statutes, pursuant to which he purports to bring claims. These include the FLSA;
the ERISA; the ADA; 42 U.S.C. § 1983; the OWBPA; and the ADEA. See Am. Compl.
at 6-8. The Plaintiff also makes several ambiguous references to additional legal
regimes. See Am. Compl. at 3 (citing to "the C.F.R. 48, Chapter 54, Subchapter Sb on
the right of the employee regarding whistleblower rights"); id. at 6 (noting that Plaintiff's
"NYS Civil Rights Laws of Article 4-7, Sects.74-77 have been called into question ...
along with [his] NYS, Labor Rights-260-j"). The UPS Defendants argue, and the Court
agrees, that these ambiguous statements are so unintelligible that they must be dismissed
for failure to state claims. See UPS MTD at 5 n.4; Simmons, 49 F.3d at 86; Trice, 124 F.
8

App'x at 694. Finally, although the Plaintiff does not reference other statutory regimes, it
is possible, based on allegations in his attached EEOC letter, that he intends to bring
additional claims based on discrimination or retaliation on the basis of his race. 4
For the reasons that follow, the Court finds that the Amended Complaint fails to state
a claim against any of the Defendants.

1. Defendant Sukhu's Motion to Dismiss

The Court first addresses Defendant Sukhu's motion to dismiss.
As an initial matter, Ms. Sukhu argues that the Plaintiff's Amended Complaint in
this action should be dismissed on the basis of collateral estoppel, as the Plaintiff
previously filed a lawsuit predicated on similar facts against Sukhu in the Southern
District of New York, and that lawsuit was dismissed. See Sukhu MTD at 4-6 (citing

Jiggetts v. New York Daily News et al., 14-cv-7674 (LAP) (S.D.N.Y. Nov. 4, 2014)
(Docket No. 4)). The Court need not decide whether that decision estops any of
Plaintiff's claims in this action, as, even assuming it does not, the Amended Complaint
fails to state a claim against Ms. Sukhu under any of the federal statutes Plaintiff cites.
As to the FLSA, Ms. Sukhu is not alleged to have been Plaintiff's employer as
that term is defined under the Act. See Irizarry v. Catsimatidis, 722 F.3d 99, 103-06 (2d
Cir. 2013). As to the ERISA claim, the Plaintiff has not alleged facts providing for
individual liability against Ms. Sukhu. See Metal Lathers Local 46 Pension Fund v.

River Ave. Contracting Corp., 954 F. Supp. 2d 250, 261 (S.D.N.Y. 2013) ("To meet the

4
In their motions to dismiss, the Defendants reasonably construe the Plaintiff's Third Amended
Complaint as asse11ing only claims under these specified statutes, with factual allegations in the attached
EEOC letter serving as support for those enumerated claims. See Sukhu MTD at 6; UPS MTD at 5. The
Court addresses the possibility that Plaintiff may be attempting to assert additional claims later in this
memorandum. See inji-a II.B.3.

9

test for individual liability under ERISA, the Court must look first to whether the
individual defendant qualifies as a 'controlling corporate official."' (quoting Cement &

Concrete Workers Dist. Council Welfare Fund, Pension Fund, Legal Servs. Fund &
Annuity Fund v. Lallo, 35 F.3d 29, 32 (2d Cir. 1994)). As to the ADA claim, there is no
individual liability against Ms. Sukhu in the circumstances of this case. See Spiegel v.

Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) ("Accordingly, it follows that, in the context
of employment discrimination, the retaliation provision of the ADA, which explicitly
borrows the remedies set forth in § 2000e-5, cannot provide for individual liability.");

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (agreeing that individuals may be sued in
their official capacity, but not in their individual capacities, under Title II of the ADA);

cf Garcia v. S. UN. Y Health Sc is. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)
("Insofar as Garcia is suing the individual defendants in their individual capacities,
neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual
capacity suits against state officials."). In any case, there are no allegations in the
Amended Complaint that Ms. Sukhu had any involvement in any discrimination against
the Plaintiff on the basis of his alleged disability, diabetes. See generally Am. Compl.
Finally, "the ADEA precludes individual liability," Cherry v. Toussaint, 50 F.
App'x 476, 477 (2d Cir. 2002) (summary order); accord Ocasio v. Riverbay Corp., No.
06 Civ 6455 (PAC) (KNF), 2007 WL 1771770, at *7 (S.D.N.Y. June 19, 2007), and the
OWBPA does not give rise to a cause of action separate from a violation of the ADEA,

see Presser v. Key Food Stores Co-op, Inc., No. 01 CV 8059 (ILG), 2002 WL 31946714,
at *3 (E.D.N.Y. Dec. 3, 2002), aff"d sub nom. Presser v. Key Food Stores Co-Op., Inc.,
316 F. App'x 9 (2d Cir. 2009) (summary order). In any case, there are no allegations in

10

the EEOC letter tying Ms. Sukhu in any way to any decision to discriminate against
Plaintiff on the basis of his age; indeed, as the Court notes below, there are no allegations
in the Amended Complaint making it plausible that any Defendant discriminated against
Plaintiff on the basis of his age. As to § 1983, there are no allegations in the Complaint
that Sukhu acted under or conspired with an individual acting under color of state law.
See Gleason v. Scoppetta, 566 F. App'x 65, 68 (2d Cir. 2014) (summary order) ("To state
a claim under § 1983, a plaintiff [ (1) ] must allege the violation of a right secured by the
Constitution and laws of the United States, and [ (2)] must show that the alleged
deprivation was committed by a person acting under color of state law." (quoting West v.
Atkins, 487 U.S. 42, 48 (1988)).
The Plaintiffs Amended Complaint is therefore dismissed in its entirety against
Ms. Sukhu. All claims specifically addressed herein are dismissed with prejudice. 5

2.

The UPS Defendants' Motion to Dismiss

The Court next addresses the UPS Defendants' motion to dismiss.
a. Claims against the Individual Defendants
First, as to the individual Defendants, Mannion and Trandiak, the Plaintiff has not
plausibly stated a claim on the basis of any of the statutes he cites, and all such claims
must be dismissed with prejudice. As to FLSA, although Plaintiff alleges that Mannion
was, at one point, Plaintiffs supervisor (and Trandiak, as a human resources manager,
may have had some supervisory role over Plaintiff), the allegations in the Amended

5
To the degree that the Plaintiff intends to bring suit against Ms. Sukhu for libel or defamation,
see Dkt. No. 47 at 1-2, Judge Preska held in a previous case in which Plaintiff asserted such claims that
there is no independent federal jurisdiction over such claims, see Jiggetts, No. l 4-cv-7674, at 2, and as the
Plaintiff has not stated any plausible federal claim in his Amended Complaint against Ms. Sukhu, the Court
declines to exercise supplemental jurisdiction over any claims asserted.

11

Complaint do not come close to establishing that either individual was Plaintiffs
"employer" for purposes ofFLSA. See Irizarry, 722 F.3d at 104-05 (describing the
"four factors [the Court looks to] to determine the 'economic reality' of an employment
relationship: 'whether the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained
employment records"' (quoting Barfield v. N. YC. Health and Hasps. Corp., 537 F.3d
132, 142 (2d Cir. 2008)). There are similarly no allegations sufficient to create individual
ERISA liability. See Metal Lathers Local 46 Pension Fund, 954 F. Supp. 2d at 261. As
already noted above, there is no individual liability on the ADA claims under the
circumstances of this case, see Spiegel, 604 F.3d at 79; Harris, 572 F.3d at 72; Garcia,
280 F.3d at 107, nor on the ADEA claims, Cherry, 50 F. App'x at 477. Finally, as
already noted, there are no allegations that any of the Defendants acted under color of
state law or conspired with anyone who did so, for purposes of a § 1983 claim. See
Gleason, 566 F. App'x at 68. Thus, the Amended Complaint fails to state a claim under
any of the enumerated statutes against Mannion or Trandiak.

b. Claims against UPS
The Comi further concludes that the Amended Complaint fails to state claims on
the basis of the enumerated statutes against UPS.

i. FLSA
First, as to any FLSA claims, the Court dismisses such claims in their entirety
with prejudice. There are no plausible, and decipherable, allegations in the EEOC letter
that in any way suggest that the Plaintiff was not paid the relevant minimum wage, was
12

required to work overtime without appropriate compensation, or was retaliated against for
complaining of FLSA violations. See 29 U.S.C. § 206 (governing minimum wage
claims); 29 U.S.C. § 207 (governing maximum hours claims); 29 U.S.C. § 218c
(governing retaliation claims). To the extent that the Plaintiff intends, in some way, to
bring a FLSA claim, then, such a claim is either conclusory or indecipherable. See

Simmons, 49 F.3d at 86.

ii. ERISA
As to ERISA, the Court agrees with the UPS Defendants that it is not obvious
what specific claim Plaintiff purports to bring, and Plaintiff makes no attempt to provide
any clarity in his Amended Complaint or opposition brief. See generally Dkt. No. 60
(hereafter "Opposition").
To the degree Plaintiff is attempting to assert that he was discharged in 2013 in
order to prevent the timely vesting of his pension benefits, such a claim is not plausibly
stated. See Am. Compl. at 34 (alleging that the Plaintiff had "only ... 3 years before [he]
was eligible to retire and receive [his] pension and benefits" and that UPS terminated him
to "save on paying [his] pension and benefits for 10 years"). Under ERISA, a party may
bring a claim alleging he was wrongfully terminated in order to prevent him from
attaining a benefit to which he would otherwise be entitled. See Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 143 (1990) ("By its terms § 510 protects plan paiiicipants
from termination motivated by an employer's desire to prevent a pension from vesting.");

see also 29 U.S.C. § 1140 ("It shall be unlawful for any person to discharge, fine,
suspend, expel, discipline, or discriminate against a participant or beneficiary for
exercising any right to which he is entitled under the provisions of an employee benefit

13

plan ... or for the purpose of interfering with the attainment of any right to which such
participant may become entitled under the plan .... "). However, such a claim requires
showing a "causal nexus between the employee's imminent exercise of these workers'
compensation rights and the basis for the employer's treatment of the employee."
Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 336 (2d Cir. 1997) (internal

quotation marks omitted). Plaintiff makes a single conclusory allegation that he was
fired, three years before his pension benefits would vest, in order to prevent them from
vesting. Am. Compl. at 34. Not only is this single allegation of motive insufficient to
state a claim, but it is undermined by the entirety of Plaintiffs EEOC letter, which
alleges that the UPS Defendants discriminated against the Plaintiff on the basis of race
and retaliated against him on the basis of specific complaints against them. Although the
effect of a wrongful termination on the basis of a protected characteristic such as race

may be that certain pension benefits do not vest, such termination does not state a claim
under ERISA unless it is motivated by a desire to unlawfully prevent those benefits from
vesting. See Sandberg, 111 F.3d at 335 (distinguishing between ERISA claims alleging
termination because of the imminent vesting of pension benefits, and claims alleging
discrimination on the basis of protected characteristics); cf Wright v. Gen. Motors Corp.,
262 F.3d 610, 615 (6th Cir. 2001) (finding, for purposes of a pre-emption analysis, that
the plaintiffs claim was "not a lawsuit claiming wrongful withholding of ERIS A covered
plan benefits[, but] a lawsuit claiming race and sex discrimination and retaliation
resulting in damages, one component of which is a sum owed under the provision of the
[benefits] plan"). Thus, any such claim for wrongful termination under ERISA is
dismissed with prejudice.

14

The Plaintiff also asserts that, after he was terminated, he "had to pay $500/month
for COBRA coverage." Am. Compl. at 33. He further alleges that "[UPS] cashed some
of the checks that [Plaintiff] sent in and some they did not cash." Id. "As a result[,
Plaintiff's] benefit coverage was terminated and [he] ... went almost a month without
insulin until [he] received Medicaid." Id. The Plaintiff makes no specific reference to
these facts in his opposition brief, and, in that brief, does not cite ERISA at all, but
simply the OWBP A. See Opp. at 1. Nevertheless, to the degree that the Plaintiff intends
to assert, through these vague allegations, a claim that UPS "unlawfully terminated his
COBRA coverage," he has failed to provide sufficient factual allegations to plausibly
state such a claim. Chaganti v. Ceridian Benefits, No. C 03-05785 (CRB), 2004 WL
1877733, at *6 (N.D. Cal. Aug. 23, 2004), aff'd sub nom. Chaganti v. Ceridian Benefits
Servs., Inc., 208 F. App'x 541 (9th Cir. 2006) (mem. dispo.).

c.ADA

The Court next addresses the Plaintiff's purported ADA claims. The UPS
Defendants interpret the Plaintiff to be alleging that he was terminated because of an
actual or perceived disability - his diabetes. See UPS MTD at 10-11. A Plaintiff may
"establish a prima facie case under the ADA" for employment discrimination if he
alleges "(l) his employer is subject to the ADA; (2) he was disabled within the meaning
of the ADA; (3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse employment
action because of his disability." Sista v. CDC !xis N. Am., Inc., 445 F.3d 161, 169 (2d
Cir. 2006) (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)).
The Defendants do not dispute the first, second, or third prongs of the test, but simply
15

dispute that Plaintiff has plausibly alleged that he was terminated because of his
disability. UPS MTD at 11.
As an initial matter, the Court notes that it is not evident that the Plaintiff is even
alleging that the UPS Defendants' choice to terminate him on the basis of Sukhu's
complaint - which Plaintiff alleges they used as a pretext - was motivated by animus as a
result of his disability. No such allegation clearly appears in the EEOC letter. See Am.
Compl. 26-35. To the extent that the Plaintiff is attempting to bring such a claim, it is
dismissed with prejudice as insufficiently pled.
On the other hand, the Plaintiff may also be making a reasonable accommodation
claim under the ADA, which the UPS Defendants do not address. See Am. Compl. at 27
(alleging that, in 2004, Plaintiff was forced to work nights despite his diabetes making
such a schedule burdensome); id. at 28 (alleging that in 2010, he was again forced to
work nights until the human resources department intervened); id. at 29-30 (stating that,
at some unspecified time after 2011 but before August 2013, Jim Fitzgerald again made
Plaintiff work nights). To the extent Plaintiff is attempting to bring such a claim, it is
neither plausibly nor decipherably pled. It is dismissed without prejudice, and with leave
to amend.
d. The OWBP A and the ADEA
Finally, the Plaintiff purports to bring claims under the OWBPA and the ADEA.
Under the ADEA, "a plaintiff bringing a disparate-treatment claim ... must prove, by a
preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse
employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). The
Court agrees with the UPS Defendants that the Plaintiff has made no allegations of age

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discrimination anywhere in his Amended Complaint. Any claims based on these statutes
are dismissed with prejudice.

3. Other Claims

As noted, the Defendants, in their motions to dismiss, make arguments only as to the
specific statutes Plaintiff himself cites in his Amended Complaint, reasonably construing
the Plaintiff as asserting claims only under those statutes. To the extent that the Plaintiff
intends to raise additional, but unidentified claims based on allegations in his attached
EEOC letter (allegations that may simply be intended as support for the claims the
Plaintiff affirmatively brings in the body of his actual complaint), such claims are
dismissed as insufficiently pied under Federal Rules of Civil Procedure 12(b)(6), 12(e),
and 8(a), without prejudice to the Plaintiff identifying them via amendment.

III.

Conclusion

Plaintiff has been given multiple oppmiunities to replead his claims and yet he still
fails to plausibly, and clearly, allege any claim under the statutes enumerated in his
Amended Complaint against any of the Defendants. Thus, the Court dismisses the
Amended Complaint. Unless otherwise noted, all claims discussed in this opinion are
dismissed with prejudice, meaning Plaintiff may not make further attempts to replead
those claims.
Should the Plaintiff seek to amend his complaint to add any additional claims not
dismissed with prejudice in this Order, he must do so on or before April 17, 2017. This
will constitute the Plaintiffs final opportunity to rep lead as to any claims not dismissed
with prejudice. Failure to plausibly or decipherably plead such claims will result in
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dismissal without fmiher opportunity to replead. Further, Plaintiff is hereby advised that
any new amended complaint will completely replace the Second Amended Complaint.
Accordingly, if Plaintiff files an amended complaint, it should include all of the
information he believes is necessary to make a short, plain statement explaining why he
is entitled to relief against any Defendant as to any claim the Court does not dismiss with
prejudice in this Order.

SO ORDERED

a-1

2017
Dated: March
-'
New York, New York

United States District Judge

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