Rouin v. Donahoe

Filing 10

DECISION AND ORDER GRANTING Defendants' Motion to Dsmiss (Docket 442 No. 5); DISMISSING as to all Defendants the Amended Complaint, as supplemented by the complaint originally filed in Docket 14-cv-1082; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Court on 10/27/2015. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARCEL ROUIN,
Plaintiff,
v.

DECISION AND ORDER
14-CV-442S

PATRICK R. DONAHOE, SANDRA BERGER,
Defendants.

1.

On June 9, 2014, Plaintiff, a United States Postal Service employee, commenced

the present action challenging the rejection of his retaliation claim by the Equal
Employment Opportunity Commission (“EEOC”).

On December 22, 2014, Plaintiff,

proceeding pro se, simultaneously filed an “amended” complaint in this action consisting
of a preprinted civil complaint form, and also commenced a second identical action 1 (14CV-1082S) by completing this Court’s preprinted employment discrimination complaint
form. (Docket 442 No. 3; Docket 1082 No. 1.) On the discrimination complaint, Plaintiff
checked boxes indicating that he was commencing the action pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). He also checked boxes
indicating that he was alleging that Defendants harassed and retaliated against him,
and that Defendants’ discriminatory conduct was based on his age. (Docket 1082 No. 1
at 4.)

Despite the different complaint forms, Plaintiff submitted identical supporting

statements in each case.

1

Plaintiff filed the second action following the EEOC’s issuance of a decision accepting on appeal the
EEOC Administrative Judge’s decision at issue in Plaintiff’s first civil action.

1

2.

In March 2015, the Honorable Michael A. Telesca, United States District Judge,

consolidated the two actions under the present case number, deeming the
discrimination complaint in 14-CV-1082 to be a “Supplemental Complaint.” (Docket 442
No. 4.) Judge Telesca further dismissed all claims against Defendant Berger on the
ground that Plaintiff’s “right to sue” letters, a prerequisite to each action, related only to
claims against Defendant Donahoe, the Postmaster General. (Id.) Presently before this
Court is Defendants’ motion to dismiss any and all remaining claims in the consolidated
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket
442 No. 5.)

Although due on or before May 26, 2015, Plaintiff has not filed any

opposition to this motion.
3.

In considering a motion to dismiss for failure to state a claim pursuant to Rule 12

(b)(6), this Court must accept all factual allegations in the complaint as true and make
all reasonable inferences in Plaintiff’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, a complaint must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007)); ATSI Commc’ns, Inc., 493 F.3d at 98. Further, “[i]t is
well established that the submissions of a pro se litigant must be construed liberally and
interpreted ‘to raise the strongest arguments that they suggest.’ ” Triestman v. Federal
Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (quoting Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). This leniency, however, does not relieve a
pro se plaintiff of the duty to satisfy basic pleading requirements. Vega v. Artus, 610 F.
Supp. 2d 185, 196 (N.D.N.Y. 2009) (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d
2

Cir.1972), cert denied 411 U.S. 935, 93 S. Ct. 1911, 36 L. Ed. 2d 396 (1973)).
4.

Initially, this Court agrees with Defendants that, despite the checked boxes on

the preprinted discrimination complaint, no disparate treatment or hostile work
environment claim under either Title VII or ADEA has been stated. Indeed, based on
Plaintiff’s factual allegations, it does not appear to this Court that such claims were even
intended. Instead, Plaintiff’s statements and the underlying administrative decisions
focus on a single claim of retaliation. Specifically, Plaintiff asserts that, in January 2013,
he was suspended for seven days after returning late from his route without first
notifying the office. (Docket 442 No. 1 at 8.) Plaintiff argues that, in retaliation for a
previous EEOC complaint he filed, Defendants punished him more severely than other
mail carriers for the same misconduct. (Docket 442 at 1, 4, 8.)
5.

Generally, to state a retaliation claim under Title VII or ADEA, a plaintiff must

allege facts showing that: (1) he was engaged in protected activity under either of these
Acts; (2) his employer was aware of this activity; (3) the employer took adverse action
against the plaintiff; and (4) a causal connection existed between the protected activity
and the adverse action, “i.e., that a retaliatory motive played a part in the adverse
employment action.” Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199,
205-6 (2d Cir. 2006) (citation omitted). Here, however, Plaintiff does not allege any facts
in his statements regarding the protected activity that prompted this retaliation, such as
when and to whom a discrimination complaint was originally made and whether it
alleged discrimination under Title VII or ADEA. See Saidin v. N.Y.C. Dep’t of Educ., 498
F. Supp. 2d 683, 688 (S.D.N.Y. 2007); see also Majeed v. ADF Companies, No. 11-CV5459 SJF ETB, 2013 WL 654416, *11 (E.D.N.Y. Feb. 20, 2013), appeal dismissed (Oct.
23, 2013). As such, although the administrative judge found, without elaboration, that
3

Plaintiff could establish a prima facie case of retaliation, (Docket 442 No. 10), there are
no specific facts alleged or disclosed from which this Court could reach the same
conclusion. See generally Kremer v. Chem. Const. Corp., 456 U.S. 461, 469-70, 102 S.
Ct. 1883, 1891, 72 L. Ed. 2d 262 (1982) (following administrative review, federal courts
consider discrimination claims de novo). Further, if this Court were to rely on those
factual statements in the administrative orders to which Plaintiff does not specifically
object, then this Court would necessarily find that Plaintiff’s discipline was more severe
than that imposed on other employees because he had already been issued a letter of
warning prior to the January 2013 misconduct. (See Docket 442 No. 1 at 9.) Thus,
dismissal would still be warranted because, on its face, Plaintiff’s complaint establishes
a legitimate, non-retaliatory reason for Defendants’ action.
6.

Finally, because Plaintiff has failed to either respond to Defendants’ motion

papers in accordance with this Court’s scheduling order or request more time after
receiving notice of such failure, granting leave to replead would be futile. (see Docket
442 No. 8 (Defendants’ attorney declaration requesting their motion be granted due to
Plaintiff’s failure to respond).) Accordingly:
IT HEREBY IS ORDERED that Defendants’ motion to dismiss (Docket 442 No.
5) is GRANTED and the Amended Complaint, as supplemented by the complaint
originally filed in Docket 14-cv-1082, is DISMISSED as against all Defendants;
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: October 27, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
4