Whitt v. Buffalo Transportation Inc.

Filing 8

DECISION AND ORDER: Defendant's 3 Motion to Dismiss is GRANTED, and Plaintiff's 1 Complaint is DISMISSED. The Court grants Plaintiff leave to file an Amended Complaint correcting the pleading defects identified within thirty (30) days o f the date of this Decision and Order. If Plaintiff does not file an Amended Complaint by 2/10/18, his claims will be dismissed with prejudice without further Court order, and the Clerk of Court shall be directed to close this case. SO ORDERED. A copy of this NEF and Decision and Order has been mailed to pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 1/11/18. (KSB)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY WHITT,
Plaintiff,
Case # 17-CV-673-FPG
v.
DECISION AND ORDER
BUFFALO TRANSPORTATION INC.,
Defendant.

INTRODUCTION
Pro se Plaintiff Anthony Whitt brings this action for racial discrimination and retaliation
against Defendant Buffalo Transportation Inc. pursuant to 42 U.S.C. § 1983 and Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000-e–2000e-17. See ECF No. 1. Plaintiff
filed his Complaint on July 20, 2017. Id. On August 1, 2017, Defendant moved to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 3. For the reasons that
follow, Defendant’s Motion is GRANTED, and Plaintiff is granted leave to file an Amended
Complaint.
BACKGROUND 1
Plaintiff worked for Defendant on an at-will basis as a “wheelchair driver” from November
11, 2015 to September 26, 2016. ECF No. 5, at 3. He takes issue with three incidents that occurred
during his employment: First, on August 14, 2016, Plaintiff was asked to complete a pick-up
during his lunch break, which he refused to do. ECF No. 1, at 2. Plaintiff declined repeated requests

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All facts are drawn from Plaintiff’s Complaint (ECF No. 1) and Reply to Defendant’s Motion to Dismiss (ECF No.
5). See, e.g., Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (instructing that a district court may consider facts
included in a pro se party’s opposition papers in deciding a motion to dismiss).

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to take his lunch break later, and—upon discussion with his supervisor and Defendant’s owner—
returned the keys and company vehicle without completing the pick-up. See id. The next day,
Plaintiff was informed that the exchange had been a “misunderstanding,” and that he was still
employed. Id.
Second, on September 14, 2016, Plaintiff received an “[e]mployment packet” describing a
partnership between Defendant and Cornerstone, an employment company. Id. He learned that he
would become a “leased-out[,] [a]t-will employee of Cornerstone,” and he received a new
rulebook. Id. Plaintiff took issue with the new rulebook’s lack of revision and failure to include
“key elements of NYS Discrimination Rights,” along with “any sign of a contract between
employer and employee.” Id. at 3. Accordingly, Plaintiff “refused to sign th[e] new employment
packet/contract.” Id.
Third, on September 23, 2016, an administrator with Defendant called Plaintiff to inform
him that he would be switched to the morning shift. Id. Plaintiff explained that he was unable to
accommodate that change because he watched his child in the morning, and the administrator
directed him to speak with Defendant’s owner. Id. On September 26, 2016, Defendant’s owner
terminated Plaintiff’s employment, citing Plaintiff’s inability to work the morning shift. Id.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) instructs that a complaint must include “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme
Court clarified the requirements of Rule 8(a)(2) for “all civil actions.” Iqbal, 556 U.S. at 684. To
be sufficient, a pleading “does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Twombly,

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550 U.S. at 555). In that vein, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at
555). Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570). That measure of
plausibility requires “more than a sheer possibility that a defendant has acted unlawfully”—the
pleaded facts must permit a “reasonable inference” of liability for the alleged misconduct. Id.; see
also Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (instructing that “all reasonable
inferences” are to be taken in the plaintiff’s favor).
While a pro se plaintiff’s complaint remains subject to Rule 8(a)(2)’s requirements, it is
entitled to “special solicitude,” requiring a court to “interpret[] the complaint to raise the ‘strongest
claims that it suggests.’ ” See, e.g., Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (quoting
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (noting the “obligat[ion] to construe a pro se complaint liberally”). Beyond the facts
alleged in a pro se plaintiff’s complaint, a court may also consider “documents attached to the
complaint as exhibits[] and documents incorporated by reference in the complaint,” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010), along with “materials outside the
complaint to the extent that they are consistent with the allegations in the complaint,” e.g.,
Martinez v. Aycock-West, 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016) (quoting Alsaifullah v. Furco,
No. 12 Civ. 2907(ER), 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)); see also Walker v.
Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (instructing that a district court may consider facts
included in a pro se party’s opposition papers in deciding a motion to dismiss).

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DISCUSSION
Plaintiff brings his claims “under 42 U.S.C. Section 1983, Title VII OF THE CIVIL
RIGHTS ACT OF 1964 ( Title VII ).” ECF No. 1, at 2. Specifically, Plaintiff seeks monetary
damages from Defendant under § 1983 for alleged violations of Title VII. See ECF No. 1; see also
ECF No. 5, at 3. Defendant argues that Plaintiff “fails to allege ‘state action’ or that [D]efendant
acted under color of state law, which are conditions precedent to maintaining a 1983 action.” ECF
No. 3-2, at 2.
Defendant is correct that—by its terms—§ 1983 requires action “under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42
U.S.C. § 1983. Plaintiff suggests that Defendant’s incorporation under the laws of the State of New
York transformed it into a “state actor,” ECF No. 5, at 3, but that argument has no merit, see, e.g.,
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312–13 (2d Cir. 2003); see also Abdul-Rahman v.
Brooklyn Hosp., No. 05CV2996 (CBA)(LB), 2005 WL 2809172, at *1 (E.D.N.Y. Oct. 26, 2005)
(“The mere fact that a hospital is incorporated under the laws of the State of New York or licensed
to do business in New York . . . does not make it a state actor.”). Plaintiff pleads no other facts to
suggest any relationship between Defendant’s activities and the State of New York. Contrary to
Defendant’s contentions, however, Plaintiff’s failure to plead state action under § 1983 does not
warrant the dismissal of his Complaint.
Giving proper consideration to Plaintiff’s status as a pro se party, the Court reads the
Complaint to clearly include claims under Title VII, which prohibits employers from
discriminating on the basis of race. 42 U.S.C. § 2000e-2(a)(1); see ECF No. 1 (listing the “nature
of the suit” and “cause of action” as Title VII and citing violations of Title VII). Title VII also bars
an employer from discriminating against an employee for opposing an employment practice that

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violates Title VII. 42 U.S.C. § 2000e-3(a). Notwithstanding Title VII’s application to Defendant,
Plaintiff’s claims fail because—despite alleging racial discrimination and retaliation—Plaintiff
never actually references race.
To avoid dismissal of his discrimination claims, Plaintiff “must plausibly allege that (1)
[Defendant] took adverse action against him, and (2) his race . . . was a motivating factor in the
employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015);
see also id. at 84–87 (explaining the pleading standards for Title VII discrimination claims). But
Plaintiff does not even identify his own race, let alone assert any facts suggesting discrimination
on that basis. Likewise, for his retaliation claim to survive, Plaintiff “must plausibly allege that:
(1) [D]efendant[] discriminated—or took an adverse employment action—against him, (2)
‘because’ he has opposed any unlawful employment practice.” Id. at 90. Yet, taking Plaintiff’s
allegations as true, he was fired because he could not switch to mornings, not because he opposed
a purported violation of Title VII. At most, Plaintiff refused to sign a new “employment
packet/contract,” but that was—by Plaintiff’s account—because of its contents, not in protest of
any alleged racial discrimination. The “liberal” construction of pro se pleadings does not render
Twombly and Iqbal toothless—where Plaintiff fails to even mention race, or actions regarding any
other protected class, his claims of racial discrimination and retaliation cannot, as pleaded, survive
dismissal.
The Court recognizes that “[a] pro se complaint ‘should not [be] dismiss[ed] without [the
Court’s] granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.’ ” Grullon v. City of New Haven, 720 F.3d 133, 139–
40 (2d Cir. 2013) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)) (alterations in
original). Although a court may deny leave to amend where amendment “would be ‘futil[e],’ ” id.

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at 140 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (alteration in original), the Court elects
to sua sponte afford Plaintiff the chance to correct his pleading deficiencies—namely, his failure
to address race or any opposition to a claimed Title VII violation. See Fed. R. Civ. P. 15(a)(2)
(“The court should freely give leave when justice so requires.”); McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007) (“[I]t is within the sound discretion of the district court to
grant or deny leave to amend.”).
CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss (ECF No. 3) is GRANTED, and
Plaintiff’s Complaint (ECF No. 1) is DISMISSED. The Court grants Plaintiff leave to file an
Amended Complaint correcting the pleading defects identified within thirty (30) days of the date
of this Decision and Order. If Plaintiff does not file an Amended Complaint by February 10, 2018,
his claims will be dismissed with prejudice without further Court order, and the Clerk of Court
shall be directed to close this case.
IT IS SO ORDERED.
Dated: January 11, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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