Florence v. Studco
Filing
14
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 10 Motion for Judgment on the Pleadings. Defendants motion [#10] is granted, and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any a ppeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action.Signed by Hon. Charles J. Siragusa on 5/20/15. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FREDERICK FLORENCE,
DECISION AND ORDER
Plaintiff,
14-CV-6426 CJS
-vSTUDCO BUILDING SYSTEMS US, LLC,
Defendant.
APPEARANCES
For Plaintiff:
Frederick Florence, pro se
95 Lehigh Avenue
Rochester, New York 14619
For Defendant:
John C. Nutter, Esq.
Lorisa D. LaRocca, Esq.
Woods Oviatt Gilman LLP
700 Crossroads Building
Two State Street
Rochester, New York 14614
INTRODUCTION
Frederick Florence (“Plaintiff”) was employed by Studco Building Systems (“Studco”)
until he resigned following an argument with his supervisor. Plaintiff commenced this action
under Title VII, alleging that he suffered discrimination based on his race and national origin.
(Docket No. [#1]). Now before the Court is Studco’s motion [#10] for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). The application is granted and
this action is dismissed.
BACKGROUND
On July 28, 2014, Plaintiff commenced this action, proceeding pro se and using a
form employment discrimination complaint. On the form Complaint, Plaintiff indicated that
he suffered “racial discrimination,” and that his employer discriminated against him on the
basis of “national origin,” though he did not indicate his race or national origin. More
specifically, Plaintiff indicated that he suffered such discrimination on July 17, 2014, the
same day that he quit his job. The facts underlying his claim, in their entirety, are as follows:
On June 17, 2014 me and my supervisor (Ken Barnes) were talking about a
issue on the work floor, and I did not like how he was talking to me, he was
yelling at me, so I walked out. Then I saw the owner (Gordon) walk in. So I
went back to the office. I told Gordon what happened and Ken told his side,
and Gordon says to me I do not understand you Americans1 don’t listen. So
he finished talking to me and I walked out the office and quit, because I did not
feel the respect from them and I felt real disrespected.
Complaint [#1] ¶ 19. On June 18, 2014, Plaintiff filed a discrimination complaint with the
Equal Employment Opportunity Commission (“EEOC”). On July 24, 2014, the EEOC issued
Plaintiff a “right to sue” letter, indicating that it had investigated his complaint and was unable
to conclude that discrimination had occurred.
On January 13, 2015, Studco filed its Answer [#6] to the Complaint. On February 23,
2015, Studco filed and served the subject motion [#10] for judgment on the pleadings. In
that regard, Studco maintains that the Complaint fails to state an actionable claim. On
March 17, 2015, the Court issued a Motion Scheduling Order [#11], directing Plaintiff to file
1
Studco is an Australian company with manufacturing locations in the U.S. See, e.g., US State News,
June 21, 2005, 2005 WLNR 14760686 (“The applicant is a manufacturer of steel framing systems
headquartered in Australia. They have opened a U.S. manufacturing operation at 545 Basket Road in the
Town of Webster[, New York].”)
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and serve any response to Studco’s motion by March 31, 2015. The Order [#11] further
indicated that the Court would hear oral argument on May 28, 2015. However, Plaintiff failed
to respond to either Studco’s motion or the Court’s Order.
The Court subsequently
cancelled oral argument.
DISCUSSION
Motion for Judgment on the Pleadings
Defendant has moved for judgment on the pleadings, and “[t]he same standard
applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c) motions
for judgment on the pleadings.” Bank of New York v. First Millennium, Inc., 607 F.3d 905,
922 (2d Cir.2010) (citation omitted). Such standard is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted). When applying this
standard, a district court must accept the allegations contained in the complaint as true and
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draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir.1999), cert. denied, 531 U.S. 1052, 121 S.Ct. 657 (2000).
“While a pro se complaint must contain sufficient factual allegations to meet the
plausibility standard, this Court affords pro se litigants ‘special solicitude’ by ‘interpreting [a
pro se] complaint to raise the strongest claims that it suggests.’” Jackson v. Pfau, No.
12–324–pr, 523 Fed.Appx. 736, 737, 2013 WL 1338712 at *1 (2d Cir. Apr. 4, 2013) (table)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011) (alterations and quotation marks
omitted)). Moreover, even though Plaintiff failed to respond to Studco’s motion, the Court
must still consider whether his Complaint states a claim. See, McCall v. Pataki, 232 F.3d
321, 322 (2d Cir. 2000) (“[W]here the pleadings are themselves sufficient to withstand
dismissal, a failure to respond to a 12(c) motion cannot constitute ‘default’ justifying
dismissal of the complaint.”) (citation and internal quotation marks omitted).
Title VII
Plaintiff’s claim arises from conversations that he had with his supervisor and with
Studco’s owner, respectively, on June 17, 2014, after which he resigned because he did not
feel “respected.” However, feeling that one has been disrespected by a co-worker or
supervisor is not enough to establish an actionable discrimination claim. In that regard, our
courts have emphasized that “Title VII does not create a general civility code for the
American workplace.” Adams v. Festival Fun Parks, LLC, 560 Fed.Appx. 47, 51 (2d Cir. Mar.
21, 2014) (citation omitted).
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Liberally construing the Complaint, Plaintiff’s strongest possible claim is that he
suffered a hostile work environment based on his race and/or national origin.2
The
Complaint [#1] does not specify Plaintiff’s race, but the Court will assume for purposes of
this discussion that he is a racial minority, though there is no indication that anyone made
any reference to his race during the conversations that led to his resignation. Regarding the
“national origin” aspect of his claim, it seems that Studco’s owner, “Gordon,” is not a U.S.
citizen and made a disparaging remark about “Americans” “not listening.” Accordingly, the
allegedly discriminatory conduct consisted of: 1) Plaintiff’s supervisor “yelling” at him; and
2) the company’s owner telling Plaintiff that “you Americans don’t listen.”
However, to plausibly state a claim for hostile work environment discrimination under
Title VII, the alleged conduct must be “severe and pervasive”:
[T]o establish a hostile work environment claim under Title VII, a plaintiff is
required to provide evidence that his workplace was permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of his employment and create an abusive
working environment.
Wright v. City of Syracuse, — Fed.Appx. — , 2015 WL 1727169 at *2 (citing Redd v. New
York Div. of Parole, 678 F.3d 166, 175 (2d Cir.2012)) (emphasis added, internal quotation
2
The Complaint [#1] gives no hint that Plaintiff suffered an “adverse employment action” of the type
that would be required to support a typical discrimination claim or retaliation claim. See, e.g., Talwar v. Staten
Island University Hosp., — Fed.Appx. — , 2015 WL 2080989 at *1 (2d Cir. May 6, 2015) (“To establish a
prima facie case of Title VII employment discrimination, a plaintiff must show that (1) she is a member of a
protected class (2) who was qualified for the position she held, and (3) suffered an adverse employment action
(4) under circumstances creating an inference of discrimination.”) (emphasis added; citation omitted); see
also, Wright v. City of Syracuse, — Fed.Appx. — , 2015 WL 1727169 at *2 (2d Cir. Apr. 16, 2015) (“To
establish a prima facie case of retaliation, a plaintiff must show: “(1) participation in a protected activity; (2)
that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.”) (emphasis added, citation
omitted).
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marks omitted). “The incidents of allegedly offensive conduct must also be more than
episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.” Adams v. Festival Fun Parks, LLC, 560 Fed.Appx. at 51 (citation omitted). On
this point,
[a] plaintiff must show that a single incident was extraordinarily severe, or that
a series of incidents were sufficiently continuous and concerted to have
altered the conditions of his working environment. Although a single act can
meet this threshold if it transforms the plaintiff's workplace, isolated acts,
unless very serious, do not meet the threshold of severity or pervasiveness.
Chukwuka v. City of New York, 513 Fed.Appx. 34, 35-36 (2d Cir. Feb. 28, 2013) (citations
and internal quotation marks omitted).
In the instant case, it is clear that Plaintiff was upset by his interactions with his
supervisor and with Studco’s owner on the day in question. However, the Complaint simply
fails to allege facts sufficient to support an actionable hostile work environment claim on the
basis of race or national origin. Consequently, the Complaint will be dismissed.
Motion to Re-Plead
Although the pro se Plaintiff did not oppose Studco’s motion or request leave to file
an amended complaint, the Court is mindful that dismissals under FRCP 12(b)(6) are usually
granted with leave to replead, unless the Court determines that such leave would be futile.
See, Stern v. General Elec. Co., 924 F.2d 472, 477 (2d Cir.1991) (“[D]ismissals for
insufficient pleadings are ordinarily with leave to replead.”) (citation omitted); McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (“A district court has discretion to
deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to
the opposing party.”). A request to replead is futile where the problems with the complaint
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are substantive, and would not be cured by better pleading. See, Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (“The problem with Cuoco's causes of action is substantive;
better pleading will not cure it. Repleading would thus be futile. Such a futile request to
replead should be denied.”).
In this action, any attempt to replead would be futile, since the Complaint has already
described the alleged discriminatory events, which are insufficient to establish actionable
discrimination. “Better pleading” will not cure this substantive deficiency. Accordingly, leave
to replead is denied.
CONCLUSION
Defendant’s motion [#10] is granted, and this action is dismissed with prejudice.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this
Order would not be taken in good faith and leave to appeal to the Court of Appeals as a
poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further
requests to proceed on appeal in forma pauperis should be directed on motion to the
United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the
Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate
this action.
SO ORDERED.
Dated:
May 20, 2015
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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