Smith v. Homes for the Homeless

Filing 4

ORDER TO AMEND: The Clerk of Court is directed to mail 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 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," and label the document with docket number 20-CV-10710 (LLS). 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. (Signed by Judge Louis L. Stanton on 1/7/2021) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RICHARD SMITH,
Plaintiff,
-againstHOMES FOR THE HOMELESS,

20-CV-10710 (LLS)
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”) and the New York State and City Human Rights Laws, alleging that his employer
discriminated against him based on his race and color. The Court construes the complaint as also
asserting claims under 42 U.S.C. § 1981. By order dated December 28, 2020, 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

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 2 of 13

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
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
Plaintiff brings his claims using the court’s Employment Discrimination Complaint form.
He checks the box to assert that his employer discriminated against him on the basis of his race
and color. The “facts” section of the complaint form states in its entirety: “On several occasion[s]

2

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 3 of 13

I was called a racist term, written up false[ly], harassed and terminated due to false allegations.
Employment laws and rights were violated.” 1 (ECF No. 2, at 5.)
Plaintiff checks boxes on the form to indicate that he filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) and that the EEOC issued a Notice
of Right to Sue, but he does not provide the dates that he filed the charge or received the Notice,
and he does not attach the Notice to the complaint.
He seeks money damages.
DISCUSSION
A.

Title VII Pleading Requirements
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).
Section 1981 prohibits discrimination in the making and enforcing of contracts, including
employment contracts, “on account of [a person’ s] race, ancestry, or ethnic characteristics.”
Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987).
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

1

The complaint is written with irregular capitalization. For readability, the Court uses
standard capitalization.
3

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 4 of 13

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,
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 are insufficient to state a claim under Title VII or § 1981. He does
not allege facts suggesting that his employer took adverse action against him because of a
protected characteristic. Plaintiff alleges that he was called a racist term on several occasions, but
he does not state who used the derogatory term or when those incidents occurred. Nor does
Plaintiff identify his race. He further asserts that he was written up and terminated due to “false
allegations,” but he alleges no facts suggesting that his employer took these actions because of
race.
B.

Exhaustion of Administrative Remedies
As a precondition to filing suit under Title VII, a plaintiff must first file a timely charge

with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(e); see also Chin v. Port Auth.
of N.Y. &N.J., 685 F.3d 135, 146 (2d Cir. 2012). In New York, this charge must be filed with the
EEOC within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C.
§ 626(d)(2); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Tewksbury v.
Ottaway Newspapers, 192 F.3d 322, 325-28 (2d Cir. 1999). This requirement functions as a
4

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 5 of 13

statute of limitations, Van Zant v. KLM Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996), and a
claim is time-barred when a plaintiff fails to file a timely charge with the EEOC, see Butts v. N.Y.
Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (“When a plaintiff fails to file a
timely charge with the EEOC, the claim is time-barred.”); see also Zerilli-Edelglass v. N.Y.C.
Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (affirming dismissal of ADA claim as time-barred
for failure to file timely EEOC charge). The time limits, however, are not jurisdictional and,
therefore, are subject to equitable tolling. 1 See Morgan, 536 U.S. at 113 (citing to Zipes v. Trans.
World Airlines, Inc., 455 U.S. 385, 393 (1982)). Dismissal may be appropriate, however, where
the existence of an affirmative defense, such as the statute of limitations, is plain from the face of
the pleading. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal
under 28 U.S.C. § 1915(d) on statute of limitations grounds); Baker v. Cuomo, 58 F.3d 814, 81819 (2d Cir. 1995) (sua sponte dismissal is “appropriate if it appears from the face of the
complaint that the action is barred . . . by the statute of limitations”), vacated in part on other
grounds, 85 F.3d 919 (2d Cir. 1996).
Plaintiff checks boxes on the complaint form to indicate that he filed a charge of
discrimination with the EEOC and that he received a Notice of Right to Sue. But because he fails
to indicate the dates on which he filed the charge and received the Notice, the Court cannot
determine if this complaint as timely filed. 2 Therefore, should he choose to amend his complaint

1

Equitable tolling of the statute of limitations is “only appropriate in rare and exceptional
circumstances, in which a party is prevented in some extraordinary way from exercising his
rights.” Zerilli-Edelglass, 333 F.3d at 80 (internal quotation marks, alteration, and citations
omitted). To obtain the benefit of equitable tolling, a plaintiff must show (1) that he acted with
reasonable diligence during the time period tolled, and (2) that extraordinary circumstances
justify the application of the doctrine. Id.
2

As a general rule, a plaintiff must commence a civil action within ninety days of receipt
of notice of dismissal or termination of proceedings by the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29
U.S.C. § 626(e); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984). Although
5

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 6 of 13

to detail any discrimination claims he may have, he should also allege facts regarding the dates
on which he filed a charged with the EEOC and received the Notice of Right to Sue, or that the
charge-filing period should be equitably tolled because he acted diligently and extraordinary
circumstances prevented him from filing a timely charge with the EEOC.
C.

Leave to Amend
Plaintiff is granted leave to amend his complaint to detail his 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
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;

equitable considerations may apply under specified circumstances — such as when Plaintiff has
received inadequate notice from the EEOC, where affirmative misconduct on the part of a
defendant lulled the Plaintiff into inaction, or if Plaintiff has relied on the court’s assurances, id.
at 151-52 — “[p]rocedural requirements established by Congress for gaining access to the
federal courts are not to be disregarded by courts out of a vague sympathy for particular
litigants,” id. at 152.
6

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 7 of 13

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.
D.

Consent to Electronic Service and Information About NYLAG Clinic
In light of the current global health crisis, parties proceeding pro se are encouraged to

submit all filings by email to [e-mail]. Instructions for
filing by email are located at https://nysd.uscourts.gov/forms/instructions-filing-documentsemail. Pro se parties also are encouraged to consent to receive all court documents electronically.
A consent to electronic service form is available on the Court’s website. Pro se parties who are
unable to use email may submit documents by regular mail or in person at a drop box at one of
the designated courthouse locations in Manhattan (500 Pearl Street) or White Plains (300
Quarropas Street). For more information, including instructions on this new email service for pro
se parties, please visit the Court’s website at https://www.nysd.uscourts.gov.
Also, Plaintiff may consider contacting the New York Legal Assistance Group’s
(NYLAG) 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.
The clinic is currently only available by telephone.
CONCLUSION
The Clerk of Court is directed to mail 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 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
7

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 8 of 13

Complaint,” and label the document with docket number 20-CV-10710 (LLS). 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.
SO ORDERED.
Dated:

January 7, 2021
New York, New York
LOUIS L. STANTON
U.S.D.J.

8

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 9 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________
________________________________________
________________________________________
(In the space above enter the full name(s) of the plaintiff(s). )

AMENDED
COMPLAINT
FOR EMPLOYMENT
DISCRIMINATION

-against________________________________________

Jury Trial:

________________________________________
________________________________________

Q

Yes Q No
(check one)

___ Civ. _______ ( ___ )

(In the space above enter the full name(s) of the defendant(s).
If you cannot fit the names of all of the defendants in the space
provided, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of names.
Typically, the company or organization named in your charge
to the Equal Employment Opportunity Commission should be
named as a defendant. Addresses should not be included here. )

This action is brought for discrimination in employment pursuant to: (check only those that apply)
______

Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e
to 2000e-17 (race, color, gender, religion, national origin).

NOTE: In order to bring suit in federal district court under Title VII, you must first obtain a
Notice of Right to Sue Letter from the Equal Employment Opportunity Commission.

______

Age Discrimination in Employment Act of 1967, as codified, 29 U.S.C. §§
621 - 634.

NOTE: In order to bring suit in federal district court under the Age Discrimination in
Employment Act, you must first file a charge with the Equal Employment Opportunity
Commission.

______

Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112 12117.

NOTE: In order to bring suit in federal district court under the Americans with Disabilities Act,
you must first obtain a Notice of Right to Sue Letter from the Equal Employment Opportunity
Commission.

______

New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (age,
race, creed, color, national origin, sexual orientation, military status, sex,
disability, predisposing genetic chacteristics, marital status).

______

New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to
131 (actual or perceived age, race, creed, color, national origin, gender,
disability, marital status, partnership status, sexual orientation, alienage,
citizenship status).

Rev. 07/2007

1

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 10 of 13

I.

Parties in this complaint:

A.

List your name, address and telephone number. Do the same for any additional plaintiffs named.
Attach additional sheets of paper as necessary.

Plaintiff

Name ___________________________________________________________________
Street Address ____________________________________________________________
County, City ______________________________________________________________
State & Zip Code __________________________________________________________
Telephone Number ________________________________________________________

B.

List all defendants’ names and the address where each defendant may be served. M ake sure that the
defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets
of paper as necessary.

Defendant

Name ___________________________________________________________________
Street Address ____________________________________________________________
County, City ______________________________________________________________
State & Zip Code __________________________________________________________
Telephone Number ________________________________________________________

C.

The address at which I sought employment or was employed by the defendant(s) is:
Employer ________________________________________________________________
Street Address ____________________________________________________________
County, City ______________________________________________________________
State & Zip Code __________________________________________________________
Telephone Number ________________________________________________________

II.

Statement of Claim:

State as briefly as possible the facts of your case, including relevant dates and events. Describe how you were
discriminated against. If you are pursuing claims under other federal or state statutes, you should include facts
to support those claims. You may wish to include further details such as the names of other persons involved
in the events giving rise to your claims. Do not cite any cases. If you intend to allege a number of related
claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as
necessary.
A. The discriminatory conduct of which I complain in this action includes: (check only those that apply)
_______

Failure to hire me.

_______

Termination of my employment.

_______

Failure to promote me.

_______

Failure to accommodate my disability.

_______

Unequal terms and conditions of my employment.

_______

Retaliation.

Rev. 07/2007

2

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 11 of 13

_______
Note:

B.

Other acts (specify): ________________________________________________.

Only those grounds raised in the charge filed with the Equal Employment Opportunity
Commission can be considered by the federal district court under the federal employment
discrimination statutes.

It is my best recollection that the alleged discriminatory acts occurred on: __________________.
D ate(s)

C.

I believe that defendant(s) (check one):
_______
_______

D.

is still committing these acts against me.
is not still committing these acts against me.

Defendant(s) discriminated against me based on my (check only those that apply and explain):

Q
Q

gender/sex

Q

national origin ____________________________

Q

age.

Q
E.

race

disability or perceived disability, _________________________________ (specify)

_________________
__________

Q

color

Q

religion_____________

_____________

M y date of birth is _______________________ (Give your date of birth only
if you are asserting a claim of age discrimination. )

The facts of my case are as follow (attach additional sheets as necessary):

__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
___________________________________________________________________
Note:

As additional support for the facts of your claim, you may attach to this complaint a copy of
your charge filed with the Equal Employment Opportunity Commission, the New York State
Division of Human Rights or the New York City Commission on Human Rights.

III.

Exhaustion of Federal Administrative Remedies:

A.

It is my best recollection that I filed a charge with the Equal Employment Opportunity Commission or
my Equal Employment Opportunity counselor regarding defendant’s alleged discriminatory conduct
on: ________________________________________________________________ (Date).

B.

The Equal Employment Opportunity Commission (check one):

Rev. 07/2007

3

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 12 of 13

________

has not issued a Notice of Right to Sue letter.

________

issued a Notice of Right to Sue letter, which I received on _______________ (Date).

Note: Attach a copy of the Notice of Right to Sue letter from the Equal Employment Opportunity
Commission to this complaint.
C.

Only litigants alleging age discrimination must answer this Question.
Since filing my charge of age discrimination with the Equal Employment Opportunity Commission
regarding defendant’s alleged discriminatory conduct (check one):
________
________

IV.

60 days or more have elapsed.
less than 60 days have elapsed.

Relief:

W HEREFORE , plaintiff prays that the Court grant such relief as may be appropriate, including injunctive orders,
damages, and costs, as follows: _______________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
(Describe relief sought, including amount of damages, if any, and the basis for such relief. )

I declare under penalty of perjury that the foregoing is true and correct.
Signed this

day of

, 20

.

Signature of Plaintiff

_____________________________________

Address

_____________________________________
_____________________________________
_____________________________________
_____________________________________

Telephone Number

_____________________________________

Fax Number (if you have one) _______________________________

Rev. 07/2007

4

Case 1:20-cv-10710-LLS Document 4 Filed 01/07/21 Page 13 of 13

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.