Decastro v. Norrell Corporation
OPINION AN ORDER re: 30 MOTION to Amend/Correct 2 Complaint filed by Gregory Decastro. For the reasons explained above, the Court denies Plaintiff's motion for leave to amend. In light of Decastro's prose status, the Court exe rcises its discretion to do so without prejudice. If Decastro seeks to proceed with this action, he may file a renewed motion for leave to amend. Decastro must attach to his motion a proposed amended complaint that alleges facts sufficient to esta blish all the elements of his ADA and/or race-discrimination claims as explained above. See Davis, 804 F.3d at 235. The amended complaint must incorporate all of his proposed amendments, including any proposed changes to factual allegations, legal claims, and Defendant's identity. If Plaintiff chooses to file a motion for leave to amend and a proposed amended complaint, he must do so by February 9, 2018. The failure to file such a motion (along with the attached proposed amended complai nt) by that date will result in the dismissal of the case with prejudice. Plaintiff is once again advised that a legal clinic has opened in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any unrepresented party throug h the Pro Se Intake Unit). Enclosed is an information sheet with further information regarding the Clinic. The Clerk of Court is respectfully directed to terminate the motion pending at Docket No. 30. (As further set forth in this Order.) (Amended Pleadings due by 2/9/2018., Motions due by 2/9/2018.) (Signed by Judge Ronnie Abrams on 1/9/2018) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 1/9/2018
No. 15-CV-944 (RA)
OPINION AND ORDER
RONNIE ABRAMS, United States District Judge:
In this action, Gregory Decastro, proceeding pro se, sued Norrell Corporation, asserting
that the company discriminated against him on the basis of his disability and race. See Dkt. 2 at
3. When Norrell failed to appear, Decastro moved for default judgment against it. See Dkt. 25.
The Court denied Plaintiffs motion for default because he had failed to "establish the defendant's
liability as a matter of law." City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137
(2d Cir. 2011) (citation and alterations omitted). Decastro now moves to amend his complaint.
See Dkt. 30. For the reasons below, that motion is denied without prejudice.
In the original complaint, Plaintiff alleged that Norrell had unlawfully failed to hire him
and to accommodate his disability. Decastro alleged that he suffered from several injuries to his
legs, knees, back, and neck that limited his employability. He further alleged that Norrell had
hired him on a temporary basis but, after he participated in a class action settlement against the
company, Norrell "refuse[d] to make any attempt to place" him. Dkt. 2 at 3. According to
Decastro, this refusal "made matters worse medically speaking." Id. Decastro also checked a box
indicating that he believed Norrell had discriminated against him on the basis of his race, but
provided no details in support of that claim.
Norrell failed to respond to the complaint, and Decastro moved for a default judgment.
The Court denied Decastro's request for a default because he had not established Norrell's liability
as a matter of law. The Court allowed Decastro, however, to file a motion for leave to amend his
complaint. He now moves for leave to amend, seeking primarily to name and serve the correct
defendant. According to Decastro, Norrell-which was a Georgia corporation-has merged with
a different company and is now a Florida corporation under a different name.
In Decastro's motion for leave to amend, he alleges the following facts: his various injuries
were caused by vehicle accidents in 2001 and 201 O; those injuries were documented through MRis
and impact his abilities to walk, stand, and lift; in the time since he became injured, he has received
social security payments for his disability; and he has "continued to seek employment with no
success," including employment from Norrell. See Dkt. 31 at 6. Decastro also attached an eightparagraph "printed fact sheet on circumstances of [his] case." See Dkt. 30, 31 at 15-16. In it, he
alleges that Norrell failed to hire him "in retaliation for his participation in the class action
settlement," and he asserts that he made "efforts to be hired for temporary work by Norrell Corp .
. . . after he had become disabled." Dkt. 31 at 15-16. At some point, Norrell purportedly told
Decastro that he was not placed because "there was no suitable work available." Id. at 15.
According to Decastro, that statement "was a pretext" because "Norrell Corp. had available
placements for which he was qualified but the company did not even consider placing him in
retaliation for his efforts to participate in the class action settlement." Id.
Decastro further asserts that, "[ e]ven though [he] was disabled but otherwise qualified to
work as a temporary paralegal, Norrell Corp. failed to even consider placing him," and "Norrell
Corp[.] knew plaintiff was disabled because in 2015 Defendant was contacted by the EEOC after
Plaintiff filed a complaint." Id. at 16. Finally, Decastro alleges that he "believes that Norrell
Corp[.] does not want to be bothered with him" and that Norrell "did not want to give Plaintiff an
adequate answer ... regarding why he was not considered for employment." Id.
Courts should "freely give leave [to amend] when justice so requires." Fed. R. Civ. P.
15(a)(2); see also Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 407 (S.D.N.Y. 2010).
Courts need not grant leave to amend, however, when the proposed amendment would be futile.
See Passlogix, Inc., 708 F. Supp. 2d at 407 (citing Advanced Magnetics, Inc. v. Bayfront Partners,
Inc., 106 F .3d 11, 18 (2d Cir. 1997)). "An amendment to a pleading is futile if the proposed claim
could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." Lucente v. Int 'l Bus.
Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). "Thus, a proposed amendment must plead
sufficient 'factual content' to allow a court 'to draw the reasonable inference that the defendant is
liable for the misconduct alleged.'" Long v. Parry, 679 F. App'x 60, 63 (2d Cir. 2017), cert.
denied, No. 17-373, 2017 WL 4037822 (U.S. Nov. 27, 2017) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
A court may not enter default judgment against a defendant unless, taking the complaint's
factual allegations as true, the plaintiff establishes the defendant's liability as a matter oflaw. See
Bricklayers & Allied Craftworkers Local 2, Albany, NY Pension Fund v. Moulton Masonry &
Const., LLC, 779 F .3d 182, 187 (2d Cir. 2015). This standard is "identical" to the standard for
assessing whether a claim should be dismissed under Rule 12(b)(6) and, thus, to the standard for
determining whether an amendment is futile. See Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d
Cir. 2014) (noting that "[t]he district court properly applied an identical standard in assessing" a
motion for default judgment and motion to dismiss); see also Young-Flynn v. Wright, No. 05-CV1488 (LAK), 2007 WL 241332, at *24 (S.D.N.Y. Jan. 26, 2007) ("A default judgment is
inappropriate where a plaintiff has failed to state a cause of action against the allegedly defaulting
defendant, regardless of whether the defendant filed a prompt response, or any response at all.").
The Court must liberally construe Plaintiffs pro se complaint. See Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009). Even when a plaintiff is prose, however, a complaint can be dismissed
with prejudice where the complaint's defects are "substantive" and cannot be cured through "better
pleading." See Heick/en v. US. Dep't of Homeland Sec., No. 10-CV-2239 (RJH)(JLC), 2011 WL
3841543, at *17 (S.D.N.Y. Aug. 30, 2011),report and recommendation adopted, 2011 WL
4442669 (S.D.N.Y. Sept. 23, 2011) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
As an initial matter, Decastro spends a substantial portion of his motion arguing that he
should be allowed to amend the complaint to identify (and serve) the correct corporate defendant.
Plaintiff alleges that Norrell Corporation merged with another company and became "SPN Group,''
which (unlike Norrell) is incorporated in Florida.
According to Decastro, "serving process on
'SPN Group' would involve only a change of name and address, with Plaintiffs complaint on the
merits and prayer for relief remaining the same, in that 'Norrell' 'Corporation' has merged with
another entity to form another entity known as 'SPN Group."' Dkt. 31 at 10. 1 Before the Court
will allow Decastro to amend his complaint and substitute SPN Group for Norrell, however,
Plaintiff must establish that his motion to amend would not be futile. Here, that means Decastro
must propose amendments curing the substantive defects in his original complaint-defects that
this Court identified when it denied Plaintiffs motion for default judgment. In short, both then
and now Decastro has failed to allege a sufficient basis for his allegations that he was discriminated
against based on his disability or race.
Although Plaintiff seems to admit that he does not intend to change the "merits and prayer for
relief' in his complaint, see id., the Court liberally construes his statement that "the Plaintiff
must plead a prima facie case under the ADA," see id. at 12, as an argument that he believes he
has done so based on the facts in his memorandum of law and the attached fact sheet.
To establish Defendant's liability for discrimination under the ADA, Plaintiff must show
that "(l) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of the
ADA or perceived to be so by her employer; (3) [the plaintiff] was otherwise qualified to perform
the essential functions of the job with or without reasonable accommodation; (4) [the plaintiff]
suffered an adverse employment action; and (5) the adverse action was imposed because of [the
plaintiffs] disability." Davis v. New York City Dep 't of Educ., 804 F.3d 231, 235 (2d Cir. 2015).
As to the last element specifically, "a plaintiff must show that the adverse employment action 'took
place under circumstances giving rise to an inference of discrimination.'" Id. (citation omitted).
Even assuming that Decastro has adequately alleged the first four of these elements, he has
failed to allege any facts giving rise to an inference that Defendant discriminated against him
because a/his alleged disability. As this Court noted in denying Decastro's motion for default
judgment, for example, Plaintiff has failed to allege that Norrell gave preferential treatment to nondisabled applicants or that Norrell's employees made any comments or took any actions that could
give rise to an inference of discriminatory animus. See Idlisan v. New York City Health & Hasps.
Corp., No. 12 CIV. 9163 PAE, 2013 WL 6049076, at *4 (S.D.N.Y. Nov. 15, 2013). Decastro
asserts that Norrell's statement that "there was no suitable work available" was a pretext, but he
then specifies that it was a pretext for discrimination on the basis of Plaintiffs involvement in a
class action settlement-not discrimination on the basis of his alleged disability. See Dkt. 31 at
15. Furthermore, Decastro does not allege that Defendant knew about his disability during the
relevant time period. According to Decastro, "Norrell Corp[.] knew [he] was disabled because in
2015 Defendant was contacted by the EEOC after Plaintiff filed a complaint." Id. at 16. But
Decastro alleges that Defendant started refusing to hire or place him in the 1990s, well before
2015. See Dkt. 31at5, 15.
Similarly, Plaintiffs allegation that he made"[ s]everal ... efforts to be hired for temporary
work ... after he had become disabled" does not establish any causal link between his disability
and the reason for Defendant's purported refusal to place him. Decastro's conclusory statement
that he "believes that Norrell Corp[.] does not want to be bothered with him" further fails to
establish that it discriminated against him on the basis of his disability. "[B]ald speculation" about
an employer's motives cannot establish liability under the ADA. Id. at *5. Rather, a plaintiff must
allege facts "that could give rise to an inference of discriminatory animus," as explained above.
Id. Plaintiff has not made any such allegations here. Thus, he has failed to allege facts that would
entitle him to relief on his claim for discrimination under the ADA.
As for Decastro's claim for racial discrimination, he has not alleged any facts whatsoever.
Plaintiff does not even mention his race in his motion for leave to amend. To the extent that
Decastro wishes to pursue this claim further, he must at least allege facts showing that he
"belonged to a protected class" (such as a racial group); that he was qualified for the relevant
position; "that he suffered an adverse employment action"; and that "the adverse employment
action occurred under circumstances giving rise to an inference" that Defendant intended to
discriminate against him because of his race. See Holcomb v. Jona Coll., 521 F.3d 130, 138 (2d
Cir. 2008). For now, however, Decastro has failed to allege sufficient facts in support of his racialdiscrimination claim.
For the reasons explained above, the Court denies Plaintiffs motion for leave to amend.
In light of Decastro's prose status, the Court exercises its discretion to do so without prejudice.
If Decastro seeks to proceed with this action, he may file a renewed motion for leave to amend.
Decastro must attach to his motion a proposed amended complaint that alleges facts sufficient to
establish all the elements of his ADA and/or race-discrimination claims as explained above. See
Davis, 804 F.3d at 235. The amended complaint must incorporate all of his proposed amendments,
including any proposed changes to factual allegations, legal claims, and Defendant's identity. If
Plaintiff chooses to file a motion for leave to amend and a proposed amended complaint, he
must do so by February 9, 2018. The failure to file such a motion (along with the attached
proposed amended complaint) by that date will result in the dismissal of the case with
Plaintiff is once again advised that a legal clinic has opened in this District to assist people
who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization
called the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among
other things, therefore cannot accept filings on behalf of the Court, which must still be made by
any unrepresented party through the Pro Se Intake Unit). Enclosed is an information sheet with
further information regarding the Clinic.
The Clerk of Court is respectfully directed to terminate the motion pending at Docket No.
January 9, 2018
New York, New York
United States District Judge
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