McKenzie v. Big Apple Training Inc.

Filing 3

ORDER: 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 60 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 22-CV-9554 (GHW). An Amended Complaint for Employment Discrimination form is attached to this order. No answer shall be required at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief can be granted. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. (Signed by Judge Gregory H. Woods on 11/17/2022) (ama)

Case 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLYANN A. MCKENZIE,
Plaintiff,
-against-

1:22-cv-9554-GHW
ORDER

BIG APPLE TRAINING INC.,
Defendant.
GREGORY H. WOODS, United States District Judge:

Plaintiff brings this pro se action under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-634; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e to 2000e-17; the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297; and
the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 131. 1 She alleges that her
employer discriminated against her based on her age, religion, and national origin.
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 has the authority to dismiss a complaint, even when the plaintiff has paid the
filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221
F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per
curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that
the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff is given
notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)

1

Plaintiff paid the filing fees for this action.

Case 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 2 of 15

(citation and internal quotation marks omitted). The Court is obliged, however, 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 F.3d 471, 474 (2d Cir.
2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
A.

Age Discrimination in Employment Act
The ADEA makes it unlawful for an employer to “discharge any individual or otherwise

discriminate against any individual with respect to h[er] compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). The ADEA’s
prohibitions on age discrimination are “limited to individuals who are at least 40 years of age.” 29
U.S.C. § 631(a); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 590-91 (2004) (“[T]he ADEA was
concerned to protect a relatively old worker from discrimination that works to the advantage of the
relatively young”).
Plaintiff alleges that she was born in 1986. Dkt. No. 1, ¶ 4. She does not allege any facts in
the complaint giving rise to an inference of discrimination because of her age. Because Plaintiff is
under 40 years old, she is not protected by the ADEA. The Court therefore dismisses Plaintiff ’s
ADEA claim for failure to state a claim.
B.

Title VII of the Civil Rights Act
Plaintiff alleges that Defendant discriminated against her based on her American national

origin and Seventh Day Adventist religion. 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 her 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). Title VII prohibits employers from mistreating an individual

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because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007),
and from 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 Title VII. 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 h[er], and (2) [her] 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.
National origin discrimination
Plaintiff ’s claim of national origin discrimination is based on the following allegations. In
spring 2021, Jackie Bowen, the 70-year-old Jamaican director of Defendant’s school in the Bronx,
interviewed and hired Plaintiff as a phlebotomy and EKG instructor. Plaintiff taught several
courses. Dkt. No. 1, ¶ 3. On an unspecified date, “Director Jackie Bowen took over a couple of
classes, stating [that] students were complaining about Plaintiff.” Id. Eventually, Plaintiff was not
offered a new course to teach. She explains the basis for her claim that the failure to continue her
employment was the result of national origin discrimination:
Plaintiff believes she was discriminated against because of her national origin
(American). Director is Jamaican and although Plaintiff is of Jamaican descent, she is
fully aware that Jamaican people do not like American people because of their
opportunities for success. Jamaican people are not afforded the same opportunities
in Jamaica and have to struggle and fight more. It is for this reason, they have a

3

Case 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 4 of 15

vendetta against Americans and want to [i]nduce the same struggle and limit their
opportunities, as seen in this petition.
Id. ¶ 9.
These vague allegations that Jamaicans “have a vendetta against Americans” are insufficient
to give rise to a plausible inference that Director Bowen, who had hired Plaintiff a few months
earlier, discontinued Plaintiff ’s employment based on her American national origin. Because
Plaintiff fails to plead facts showing that her national origin was a motivating factor in any adverse
action, the complaint does not state a Title VII claim for national origin discrimination.
Religious discrimination
Plaintiff also invokes religious discrimination as a basis for her Title VII claims. She argues
that discrimination against her because of her religion caused Defendant not to continue her
employment. The sole allegation in the complaint relating to Plaintiff ’s religion is the following:
Plaintiff was indirectly asked to compromise religious beliefs when Director’s son
Mr. Bowen called her and stated that a failing student told him all she needed to do
was take an exam to pass the class. [Plaintiff] denied student [the] right to take [the]
exam an[d] was appalled that she was even asked that, as Director’s son had access to
student records and either knew she was failing, or could have found out but
preferred to attempt dishonesty.
Id. ¶ 8.
This allegation is insufficient to show that Plaintiff ’s religion as a Seventh Day Adventist
“was a motivating factor in the employment decision,” Vega, 801 F.3d at 86. It is not clear from
Plaintiff ’s allegations that Defendant was aware of Plaintiff ’s religious identification as a Seventh
Day Adventist, much less that her religion motivated Defendant’s decision not to continue offering
her courses to teach. Plaintiff ’s complaint thus fails to state a claim that Defendant discriminated
against her in employment based on her religion. 2

It is not clear from the allegations of the complaint that Plaintiff exhausted her claim of religious discrimination in the
administrative proceedings, though this is not a pleading requirement. See Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d
486, 491 (2d Cir. 2018) (“[T]he burden of pleading and proving Title VII exhaustion lies with defendants and operates as

2

4

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LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally
should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects,
unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011);
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that
district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid Title
VII claim, the Court grants Plaintiff 60 days’ leave to amend her complaint to detail her claims.
Plaintiff is granted leave to amend her complaint to provide more facts about her claims. In
the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short
and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff
has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of
the information in the amended complaint that Plaintiff wants the Court to consider in deciding
whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the
approximate date and time of each event, and the general location where each event
occurred;
c) a description of the injuries Plaintiff suffered; and

an affirmative defense.”). In limited situations, claims not raised in administrative proceedings can be deemed to have
been exhausted. Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1402 (2d Cir.1993) (claims not raised in an
administrative charge can proceed where the conduct complained of would fall within the “scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination.”), superseded by statute on other
grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). If Plaintiff repleads her Title VII religious
discrimination claim, she may wish to clarify whether she exhausted this claim by raising it in the New York State
Division of Human Rights proceedings.

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Case 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 6 of 15

d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff ’s amended complaint should tell the Court: who violated her federally
protected rights; and how, when, and where such violations 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 wants to include from the original complaint must be
repeated in the amended complaint.
CONCLUSION
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
60 days of the date of this order, caption the document as an “Amended Complaint,” and label the
document with docket number 22-CV-9554 (GHW). An Amended Complaint for Employment
Discrimination form is attached to this order. No answer shall be required at this time. If Plaintiff
fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the
complaint will be dismissed for failure to state a claim upon which relief can be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal.
Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

November 17, 2022
New York, New York
GREGORY H. WOODS
United States District Judge

6

Case 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 7 of 15

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.

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 8 of 15

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 9 of 15

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 10 of 15

☐ 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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 11 of 15

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 12 of 15

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 13 of 15

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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 14 of 15

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.

IMPORTANT NOTICE

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:
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 1:22-cv-09554-GHW Document 3 Filed 11/17/22 Page 15 of 15

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

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

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).

Name (Last, First, MI)
Address

City

State

Telephone Number

E-mail Address

Date

Signature

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

Zip Code