Felder v. Atrus Builders et al

Filing 11

ORDER TO AMEND: The Clerk of Court is directed to transmit a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must su bmit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 20-CV-8842 (LLS). An Amended Compla int for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. Plaintiff's request for counsel (ECF No. 6) is denied without prejudice to renewal at a later date. (Signed by Judge Louis L. Stanton on 1/5/2021) (sac)

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SEAN G. FELDER,
Plaintiff,
-against-

20-CV-8842 (LLS)

ATRIA BUILDERS; ED GRUNWALL,
PRESIDENT; MIKE FERGUSKI, SECURITY
DIRECTOR,

ORDER TO AMEND

Defendant.
LOUIS L. STANTON, United States District Judge:
Plaintiff brings this pro se action under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1981, alleging that his employer
discriminated against him based on his race. By order dated December 9, 2019, the Court granted
Plaintiff’s request to proceed in forma pauperis (IFP). For the reasons set forth below, the Court
grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also
dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 2 of 17

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain statement showing that the
pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to
state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the
court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at
555. After separating legal conclusions from well-pleaded factual allegations, the court must
determine whether those facts make it plausible – not merely possible – that the pleader is
entitled to relief. Id.
BACKGROUND
Using the Court’s form complaint for employment discrimination, Plaintiff Sean G.
Felder brings this complaint against Atria Builders; Ed Grunwall, President; and Mike Ferguski,
Security Director, alleging that Defendants discriminated against him on the basis of his race.
Plaintiff, who identifies himself as Black, checks the box indicating that he is alleging
discrimination under Title VII, although he does not indicate his race in that section of the
complaint. Plaintiff checks the box indicating that he is asserting claims under 42 U.S.C. § 1981,
and he does indicate his race in that section of the complaint. Plaintiff also checks the box

2

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 3 of 17

indicating that he is asserting claims under the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §§ 621 – 634, but he does not indicate the year that he was born.
Plaintiff alleges the following:
After working 3 yrs as firewatch security at old site 461 W. 34st, Atria Builders
Assistant Security Director Ed Smalls decided to wrongfully terminate me
7/23/2019 on phone after coming back from vacation at Atlanta, Ga! I was never
called to corporate office and address this issue of bed bugs at construction site.
This was plot by upper management to find ways to terminate me!
(ECF No. 2 at 5.) 1
Plaintiff alleges that he exhausted his administrative remedies by filing a charge with the
Equal Employment Opportunity Commission (EEOC), and that he received the October 13, 2020
notice of right to sue two days before he filed his complaint with the Court. 2 He seeks
unspecified monetary damages.
DISCUSSION
A.

Claims Under 42 U.S.C. § 1981
Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of the

United States’ to ‘make and enforce contracts’ without respect to race.” Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)). To state a § 1981 claim, a
plaintiff must allege: (1) that he is a member of a racial minority; (2) the defendants intended to
discriminate on the basis of race; and (3) the discrimination concerns one of the statute’s
enumerated activities. Id. at 476 (holding that a plaintiff is entitled to relief under § 1981 “when
racial discrimination blocks the creation of a contractual relationship, as well as when racial
discrimination impairs an existing contractual relationship.”).

1

Page numbers refer to those generated by the Court’s electronic filing system.

2

Plaintiff filed his complaint on October 21, 2020. He does not attach a copy of the
notice to his complaint.

3

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 4 of 17

Plaintiff’s allegations of discrimination do not suffice to state a claim under § 1981. The
alleged facts do not suggest that Defendant’s conduct was motivated by race-based animus.
B.

Title VII and ADEA Claims
Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . .

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a).
Similarly, the ADEA makes it unlawful for an employer to “discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a).
The statute protects workers who are at least forty years old from discrimination because of their
age. See 29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals who
are at least 40 years of age”); Feldman v. Nassau Cnty., 434 F.3d 177, 180 (2d Cir. 2006).
These antidiscrimination provisions prohibit employers from mistreating an individual
because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir.
2007), or retaliating against an employee who has opposed any practice made unlawful by those
statutes, see Crawford v. Metro. Gov’t, 555 U.S. 271, 276 (2009) (holding that conduct is
protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at
work that occurs for a reason other than an employee’s protected characteristic or opposition to
unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka
v. City of New York, 513 F. App’x 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d
246, 252 (2d Cir. 2001)).
At the pleading stage in an employment discrimination action, “a plaintiff must plausibly
allege that (1) the employer took adverse employment action against him, and (2) his race, color,
4

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 5 of 17

religion, sex, or national origin was a motivating factor in the employment decision.” Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by
alleging facts that directly show discrimination or facts that indirectly show discrimination by
giving rise to a plausible inference of discrimination.” Id. at 87.
Plaintiff’s allegations of discrimination under Title VII and the ADEA are also
insufficient to state claims under these statutes. Plaintiff does not allege facts suggesting that his
employer took any adverse action against him based on his race. Plaintiff also does not allege
that he is at least 40 years old, and even if he meets the age criteria for an ADEA claim, he does
allege facts suggesting that the alleged adverse acts occurred because of his age.
Should Plaintiff choose to amend his complaint, he must allege facts suggesting that
Defendant took adverse employment action against him because of an impermissible factor.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his employment discrimination
claims. In the statement of claim, Plaintiff must provide a short and plain statement of the
relevant facts supporting each claim against each defendant named in the amended complaint.
Plaintiff is also directed to provide the addresses for any named defendants. To the greatest
extent possible, Plaintiff’s amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and

5

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 6 of 17

f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violation occurred; where such violation occurred; and why Plaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the
amended complaint.
In the event that Plaintiff chooses to file an amended complaint, the Court strongly
encourages him to ask for assistance from someone who can help him organize his thoughts and
claims. If Plaintiff needs legal advice related to this matter, he may contact the New York Legal
Assistance Group’s Legal Clinic for Pro Se Litigants in the Southern District of New York, which
is a free legal clinic staffed by attorneys and paralegals to assist those who are representing
themselves in civil lawsuits in this Court. A copy of the flyer with details of the clinic is attached
to this order.
CONCLUSION
The Clerk of Court is directed to transmit a copy of this order to Plaintiff and note service
on the docket. 3
Plaintiff is granted leave to file an amended complaint that complies with the standards
set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit
within sixty days of the date of this order, caption the document as an “Amended Complaint,”

3

Plaintiff has consented to receive electronic service of notices and documents in this
case. (ECF No. 3.)

6

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 7 of 17

and label the document with docket number 20-CV-8842 (LLS). 4 An Amended Complaint for
Employment Discrimination form is attached to this order. No summons will issue at this time. If
Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such
failure, the complaint will be dismissed for failure to state a claim upon which relief may be
granted.
Plaintiff’s request for counsel (ECF No. 6) is denied without prejudice to renewal at a
later date.
SO ORDERED.
Dated:

January 5, 2021
New York, New York
Louis L. Stanton
U.S.D.J.

4

Plaintiff should attach a copy of the notice of right to sue from the EEOC to his
amended complaint.

7

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 8 of 17

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________

Write the full name of each plaintiff.

(Include case number if one has been
assigned)

-against-

Do you want a jury trial?
☐ Yes

☐ No

Write the full name of each defendant. The names listed
above must be identical to those contained in Section I.

AMENDED

EMPLOYMENT DISCRIMINATION COMPLAINT
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with
the court should therefore not contain: an individual’s full social security number or full birth
date; the full name of a person known to be a minor; or a complete financial account number. A
filing may include only: the last four digits of a social security number; the year of an individual’s
birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule
of Civil Procedure 5.2.

Rev. 3/24/17

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 9 of 17

I.

PARTIES

A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address
County, City

State

Zip Code

Telephone Number

Email Address (if available)

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. (Proper defendants under employment discrimination statutes are usually employers,
labor organizations, or employment agencies.) Attach additional pages if needed.
Defendant 1:

Name
Address where defendant may be served
County, City

State

Zip Code

Defendant 2:

Name
Address where defendant may be served
County, City

State

Zip Code

Page 2

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 10 of 17

Defendant 3:

Name
Address where defendant may be served
County, City

II.

State

Zip Code

PLACE OF EMPLOYMENT

The address at which I was employed or sought employment by the defendant(s) is:
Name
Address
County, City

III.

State

Zip Code

CAUSE OF ACTION

A. Federal Claims
This employment discrimination lawsuit is brought under (check only the options below
that apply in your case):
☐ Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, for
employment discrimination on the basis of race, color, religion, sex, or national
origin
The defendant discriminated against me because of my (check only those that
apply and explain):
☐ race:
☐ color:
☐ religion:
☐ sex:
☐ national origin:

Page 3

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 11 of 17

☐ 42 U.S.C. § 1981, for intentional employment discrimination on the basis of race
My race is:
☐ Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634, for
employment discrimination on the basis of age (40 or older)
I was born in the year:
☐ Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 796, for employment
discrimination on the basis of a disability by an employer that constitutes a
program or activity receiving federal financial assistance
My disability or perceived disability is:
☐ Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, for
employment discrimination on the basis of a disability
My disability or perceived disability is:
☐ Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654, for
employment discrimination on the basis of leave for qualified medical or family
reasons
B. Other Claims
In addition to my federal claims listed above, I assert claims under:
☐ New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297, for
employment discrimination on the basis of age, race, creed, color, national
origin, sexual orientation, military status, sex, disability, predisposing genetic
characteristics, marital status
☐ New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131, for
employment discrimination on the basis of actual or perceived age, race, creed,
color, national origin, gender, disability, marital status, partnership status,
sexual orientation, alienage, citizenship status
☐ Other (may include other relevant federal, state, city, or county law):

Page 4

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 12 of 17

IV.

STATEMENT OF CLAIM

A. Adverse Employment Action
The defendant or defendants in this case took the following adverse employment
actions against me (check only those that apply):
☐ did not hire me
☐ terminated my employment
☐ did not promote me
☐ did not accommodate my disability
☐ provided me with terms and conditions of employment different from those of
similar employees
☐ retaliated against me
☐ harassed me or created a hostile work environment
☐ other (specify):

B. Facts
State here the facts that support your claim. Attach additional pages if needed. You should
explain what actions defendants took (or failed to take) because of your protected
characteristic, such as your race, disability, age, or religion. Include times and locations, if
possible. State whether defendants are continuing to commit these acts against you.

As additional support for your claim, you may attach any charge of discrimination that you filed
with the U.S. Equal Employment Opportunity Commission, the New York State Division of
Human Rights, the New York City Commission on Human Rights, or any other government
agency.

Page 5

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 13 of 17

V.

ADMINISTRATIVE PROCEDURES

For most claims under the federal employment discrimination statutes, before filing a lawsuit,
you must first file a charge with the U.S. Equal Employment Opportunity Commission (EEOC)
and receive a Notice of Right to Sue.
Did you file a charge of discrimination against the defendant(s) with the EEOC or any
other government agency?
☐ Yes (Please attach a copy of the charge to this complaint.)
When did you file your charge?
☐ No
Have you received a Notice of Right to Sue from the EEOC?
☐ Yes (Please attach a copy of the Notice of Right to Sue.)
What is the date on the Notice?
When did you receive the Notice?
☐ No
VI.

RELIEF

The relief I want the court to order is (check only those that apply):
☐ direct the defendant to hire me
☐ direct the defendant to re-employ me
☐ direct the defendant to promote me
☐ direct the defendant to reasonably accommodate my religion
☐ direct the defendant to reasonably accommodate my disability
☐ direct the defendant to (specify) (if you believe you are entitled to money
damages, explain that here)

Page 6

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 14 of 17

VII.

PLAINTIFF’S CERTIFICATION

By signing below, I certify to the best of my knowledge, information, and belief that:
(1) the complaint is not being presented for an improper purpose (such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are
supported by existing law or by a nonfrivolous argument to change existing law; (3) the
factual contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery; and (4) the complaint otherwise complies with the requirements of Federal
Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

Page 7

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 15 of 17

United States District Court
Southern District of New York

Pro Se (Nonprisoner) Consent to Receive Documents Electronically

Parties who are not represented by an attorney and are not currently incarcerated may
choose to receive documents in their cases electronically (by e-mail) instead of by regular
mail. Receiving documents by regular mail is still an option, but if you would rather receive
them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER 1 at
www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.

If you consent to receive documents electronically, you will receive a Notice of Electronic
Filing by e-mail each time a document is filed in your case. After receiving the notice, you
are permitted one “free look” at the document by clicking on the hyperlinked document
number in the e-mail. 2 Once you click the hyperlink and access the document, you may not
be able to access the document for free again. After 15 days, the hyperlink will no longer
provide free access. Any time that the hyperlink is accessed after the first “free look” or the
15 days, you will be asked for a PACER login and may be charged to view the document. For
this reason, you should print or save the document during the “free look” to avoid future
charges.
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s
Electronic Case Filing Rules & Instructions, documents may be served by electronic means.
If you register for electronic service:

IMPORTANT NOTICE

1. You will no longer receive documents in the mail;

2. If you do not view and download your documents during your “free look” and
within 15 days of when the court sends the e-mail notice, you will be charged for
looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case. 3

Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that
allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER
Case Locator over the internet.
1

You must review the Court’s actual order, decree, or judgment and not rely on the description in the email notice alone.
See ECF Rule 4.3

2

The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of
electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s
Office at the Court.

3

500 PEARL STREET | NEW YORK, NY 10007
300 QUARROPAS STREET | WHITE PLAINS, NY 10601
PRO SE INTAKE UNIT: 212-805-0175

rev. 2/9/15

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 16 of 17

I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I
affirm that:

CONSENT TO ELECTRONIC SERVICE

1. I have regular access to my e-mail account and to the internet and will check regularly for
Notices of Electronic Filing;
2. I have established a PACER account;

3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil
Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper
copies of case filings, including motions, decisions, orders, and other documents;

4. I will promptly notify the Court if there is any change in my personal data, such as name,
address, or e-mail address, or if I wish to cancel this consent to electronic service;

5. I understand that I must regularly review the docket sheet of my case so that I do not miss a
filing; and

6. I understand that this consent applies only to the cases listed below and that if I file
additional cases in which I would like to receive electronic service of notices of documents, I
must file consent forms for those cases.
Note: This consent will apply to all cases that you have filed in this court, so please list all of
your pending and terminated cases. For each case, include the case name and docket number
(for example, John Doe v. New City, 10-CV-01234).

Civil case(s) filed in the Southern District of New York:

Name (Last, First, MI)
Address

Telephone Number
Date

Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007
Return completed form to:

City

State

E-mail Address
Signature

Zip Code

Case 1:20-cv-08842-LLS Document 11 Filed 01/05/21 Page 17 of 17

Notice For
Pro Se Litigants
As a public health precaution, the New York
Legal Assistance Group’s Legal Clinic for Pro Se
Litigants has temporarily suspended all inperson client meetings as of Tuesday, March 17,
2020.

Limited scope legal assistance will continue to
be provided, but only by appointment and only
over the phone. During this time, we cannot
assist walk-in visitors to the clinic.

If you need the assistance of the clinic, please
call 212-659-6190 and leave a message,
including your telephone number, and someone
will get back to you as soon as possible. If you do
not leave a message with your telephone
number, we cannot call you back.

Please be patient because our responses to your
messages may be delayed while we transition to
phone appointments.