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McLeod v. Lowe's Home Improvement

October 28, 2010

WYLIE MCLEOD, PLAINTIFF,
v.
LOWE'S HOME IMPROVEMENT AND LOU C, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

In this employment discrimination action, defendants moved on June 1, 2010 (Case No. 1:09-CV-834, Dkt. No. 18) to dismiss the amended complaint (Case No. 1:09-CV-834, Dkt. No. 10) in these consolidated cases.*fn1 By letter motion (Case No. 1:09-CV-834, Dkt. No. 33) plaintiff requests an extension of time to oppose the motion. For the reasons set forth below, the Court denies plaintiff's request for an extension of time. The Court grants the motion to dismiss in part and denies it in part.

PLAINTIFF'S MOTION TO EXTEND TIME TO RESPOND

Since July 22, 2009, when he filed his initial complaints (Case No. 1:09-CV-834, Dkt. No. 1; Case No. 1:09-CV-835, Dkt. No. 1) and motions for leave to proceed in forma pauperis (Case No. 1:09-CV-834, Dkt. No. 2; Case No. 1:09-CV-835, Dkt. No. 2), the only step plaintiff has taken to pursue this case is to file his amended complaint (Case No. 1:09-CV-834, Dkt. No. 10).

He had interposed three requests in each case (Case No. 1:09-CV-834, Dkt. Nos. 4, 5, and 7; Case No. 1:09-CV-835, Dkt. Nos. 4, 5, and 7) for extensions of time to file the amended complaint, which he ultimately filed on March 9, 2010, more than six months after its initial due date. On June 1, 2010, defendants made the instant motion (Case No. 1:09-CV-834, Dkt. No. 18) to dismiss the amended complaint. Plaintiff has interposed five requests (Case No. 1:09-CV-834, Dkt. Nos. 25, 26, 30, 32, and 33) for extensions of time to oppose the dismissal motion. On September 17, 2010, in response to plaintiff's fourth request for an extension of time to oppose the motion, the Court issued a text order granting a final extension to September 24, 2010, and stating: "No further requests for an extension will be considered without good cause shown and supporting documentation." Nevertheless, plaintiff did not submit opposition to the motion, and on September 27, 2010 he filed the pending request for a further extension of time, stating that he requested help from the Pro Se Assistance Program and has "mental health issues." Plaintiff gives no further information and attaches no documentation.

The Court finds that plaintiff has failed to show good cause for a further extension of time. The first time plaintiff claimed to be seeking assistance from the Pro Se Assistance Program and to have mental health issues was over a year ago, on October 15, 2009, in support of a request to extend the time to file his amended complaint. Plaintiff has never provided any details or documentation regarding either issue. Despite repeated warnings, he makes no showing that he has taken any steps to address these issues or that he has otherwise made good faith efforts to proceed with this action. Plaintiff's conduct has placed a burden on the Court and defendants, and has made it impossible for defendants to obtain prompt resolution of the claims against them. The Court denies plaintiff's motion (Case No. 1:09-CV-834, Dkt. No. 33) for an additional extension of time to oppose the dismissal motion.

DEFENDANTS' MOTION TO DISMISS

Standard on a Motion to Dismiss

The Court turns to address defendants' motion (Case No. 1:09-CV-834, Dkt. No. 18) to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the claims are time-barred or unexhausted. To survive a Rule 12(b)(6) motion, "a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint should be especially liberally construed when it is submitted pro se. See Jacobs v. Mostow, 271 Fed.Appx. 85, 87 (2d Cir. 2008) (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)). The submissions of a pro se litigant should be interpreted to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). As explained below, the Court grants the dismissal motion in part and denies it in part.

EEOC Charges

On July 18, 2008, plaintiff, an African American man, filed an administrative charge ("first EEOC charge") (New York State Division of Human Rights ("NYDHR") No. 0127334; Equal Employment Opportunity Commission ("EEOC") No. 16G-2008-05427) alleging he had experienced racial discrimination at Lowe's Home Improvement ("Lowe's"), his former employer.*fn2 Plaintiff alleged that the most recent acts of discrimination occurred on June 29, 2008, July 4, 2008, and July 10, 2008. He complained that the manager assigned all the work to him and another black man and that the white workers "stand and joke around with each other." He also claimed he "was recently threatened that if [he] did not write a statement against another black employee that there would be consequences." On March 16, 2009, EEOC issued a "Dismissal and Notice of Rights" ("first right-to-sue notice") regarding the charge. The notice advised plaintiff: "You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice or your right to sue based on this charge will be lost." (Emphasis in original.)

Plaintiff subsequently filed a second administrative charge ("second EEOC charge") on January 2, 2009 alleging racial discrimination and retaliation occurring as recently as July 28, 2008 (NYDHR No. 10130615; EEOC No. 16G-2009-1686).*fn3 Under the heading, "Retaliation for Opposing Discrimination and/or Objecting to a Discriminatory Practice," plaintiff wrote: "Retaliation for being a witness in discriminatory practices against [two] other employees Quinton La Grande, Sharlene Parrot." In response to the question, "Why do you believe that you were/are being discriminated against?" he wrote: "Racial discrimination, Retaliation for being a witness to other employees (internal investigation)." He added:*fn4

On or about July 17th 2008 I wasn't given an opportunity to give statement in to the way certain minorities were being treated in an unfair way. On or about July 2nd 2008 I was not allowed to give a statement about an incident that ...


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