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Barlow v. Buffalo News

June 1, 2006

PHILIP P. BARLOW, PLAINTIFF,
v.
THE BUFFALO NEWS, DEFENDANT.



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn1

INTRODUCTION

Plaintiff, proceeding pro se, filed this action alleging that his former employer, The Buffalo News ("the News"), discriminated against him on the basis of his race and disability, in violation of the Title VII of the Civil Rights Act, 42 U.S.C. §2000e ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. §12112 et seq ("ADA"). On December 2, 2005, this Court dismissed Plaintiff's initial Complaint concluding that his disability claim was precluded by his failure to file an administrative charge of discrimination and concluding that the Complaint failed to state a claim for race discrimination under Title VII. The Court granted Plaintiff leave to replead his Title VII race discrimination claim.

On December 13, 2005 Plaintiff filed his Amended Complaint again alleging disability discrimination under the ADA and race discrimination under Title VII. On December 22, 2005 the News filed this second Motion to Dismiss. The Court heard oral argument on February 2, 2006.

FACTS

The Court accepts as true, for purposes of this Motion, the following facts alleged in Plaintiff's Amended Complaint:

"I was suspended and never return[ed] to work [and] never signed any paper saying I was fired." Amended Complaint ¶13.

Plaintiff further alleged that:

"Defendant's [sic] called me for a hearing and gave me a paper's [sic] saying I was suspended 9-7-04 and I never heard from them. I also called numerous of time [sic] [asking] when can I come back."

Amended Complaint ¶19. Plaintiff's Amended Complaint did not allege any other facts relevant to his race discrimination claim. In his opposition to this Motion, however, Plaintiff submitted an affirmation and a memorandum of law containing additional factual allegations which are consistent with those he alleged in his EEOC charge - specifically, that on or about September 7, 2004 he was involved in a verbal altercation with a white co-worker and, as a result, Plaintiff was suspended while the white co-worker was not suspended.

DISCUSSION

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), the Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). The motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, the Court is not concerned with whether plaintiff may ultimately succeed on his claims but must "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). In light of plaintiff's pro se status, the Court must construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

The News seeks dismissal of Plaintiff's ADA claim because the same claim was previously dismissed with prejudice. The News seeks dismissal of Plaintiff's Title VII claim for failure to comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure ("FRCvP").

Plaintiff's ADA claim must be dismissed. As noted in the Court's December 2005 Memorandum and Order, Plaintiff failed to file an administrative charge of disability discrimination and his ADA claim was dismissed with prejudice. Likewise, the ...


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