The opinion of the court was delivered by: Therese Wiley Dancks, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent two pro se Complaints together with an application
to proceed in forma pauperis to the Court for review.*fn1
(Dkt. Nos. 1,1-1 and 2.) One of Plaintiff Bernard B.
Idlisan's Complaints alleges employment discrimination under Title I
of the Americans with Disabilities Act of 1990, 42 U.S.C. §§
12111-12117 ("ADA") by Defendants SUNY Upstate Medical University
("SUNY Upstate") and Heather Baldwin ("Baldwin"), and attempted
bribery by Defendant Piccotti ("Piccotti"). (See generally Dkt. No. 1.)
Plaintiff's other Complaint alleges employment discrimination under
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. ("Title VII") by SUNY Upstate and Baldwin
and attempted bribery by Piccotti. (See generally Dkt. No. 1-1.)
Plaintiff's discrimination claims alleged under Title VII include
failure to hire based upon his national origin, race, and prior
criminal conviction. (Dkt. No. 1-1.)
I. ALLEGATIONS OF THE COMPLAINT
Plaintiff's nation of origin is the Phillippines, and he is Asian by race. (Dkt. No. 1-1 at ¶ 8.) He has been diagnosed with severe triple vessel heart disease. (Dkt. No. 1 at ¶ 6 and pp. 7-10*fn2 .) Plaintiff was found guilty of grand larceny and bail jumping in 2007 and imprisoned for two years. Id. at ¶¶ 8-9 and p. 5.
Plaintiff received a B.S. in accounting from Zamboanga A.E. Colleges in the Phillippines, and before coming to the United States, he worked in the Phillippines Children's Medical Center in Quezon City from 1986 to 1994, first as a medical clerk and later as a records officer. Id. at p. 35. As a records officer, Plaintiff was responsible for managing and supervising a medical records section of the hospital; assembling records; preparing coded reports, verified data and abstracted information; compiling data from medical records; evaluating and disciplining employees under his supervision; and implementing training and review programs. Id.
After coming to the United States, Plaintiff worked in the accounting department at a furniture store in Queens, New York from 1994 to 2001, performing a variety of duties such as bookkeeping, maintaining accounts, encoding data, and managing accounts payable and receivable. Id. Since leaving the furniture store job, Plaintiff has had a couple of very short term jobs and worked as an information clerk at the Board of Elections in Brooklyn, New York for a period of time beginning in August of 2010. Id. at pp. 34 and 37.
On May 25, 2011, Plaintiff was certified as an individual with a physical disability that qualified him for an employment consideration pursuant to New York Civil Service Law §§ 55-a and 55-b/c*fn3 , as job ready, and as likely to succeed in performing the duties of accounting clerk or any clerical position in an office setting. (Dkt. No. 1-1 at p. 47.) Plaintiff was placed on the list of eligible candidates qualified for clerical positions at SUNY Upstate. Id. at p. 10. In or about December of 2011, Plaintiff passed Civil Service examinations for Hospital Patient Services Clerk and Nursing Station Clerk I with ratings of 90% and 80%, respectively. Id. at p. 9.
Plaintiff applied for a total of thirty-four Clerk I and 1/Trainee positions at SUNY Upstate over a period from February of 2011 through January of 2012. Id. at pp. 11, 38-39. At least twenty-two of the positions were filled by others. Id. at p. 11. None of the positions were offered to Plaintiff. Id.
Defendant Baldwin is the SUNY Upstate Human Resources Department employee to whom Plaintiff sent his May 24, 2011 application for the position of Hospital Patient Services Clerk I, a position that was filled by someone else. Id. at 7-8, 38. The only factual allegations in either of Plaintiffs' Complaints with regard to Baldwin are that she was a human resources recruiter at SUNY Upstate and that she called Plaintiff to let him know that his "application will be referred to the hiring manager for consideration." (Dkt. No 1 at ¶ 6.) Plaintiff has included his job application letter of May 24, 2011 to Baldwin and follow up letter to her of August 1, 2011 as exhibits to his Title VII Complaint. (Dkt. No. 1-1 at pp. 7-8.)
On March 5, 2012, Plaintiff filed a complaint against Defendants SUNY Upstate and Baldwin with the New York State Division of Human Rights ("NYSDHR") alleging discrimination based upon disability, national origin, race, and his prior criminal conviction . Id. at pp. 10-15. The NYSDHR found no probable cause that SUNY Upstate had engaged in discriminatory conduct. Id. at p. 40-41. The Equal Employment Opportunity Commission ("EEOC") issued a right to sue letter on October 26, 2012. (Dkt. No. 1 at 9.) The two Complaints in this action were filed on December 5, 2012.*fn4
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
After reviewing Plaintiff's in forma pauperis application (Dkt. No. 5), the Court finds that Plaintiff may properly proceed with this matter in forma pauperis.
III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
28 U.S.C. § 1915(e) directs that when a plaintiff is permitted to proceed in forma pauperis, " the court shall dismiss the case at any time if the court determines that . . . the action . . . (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(I)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless, such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before ...