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Thomas Flowers v. Construction and General Building Laborers Local 79

April 30, 2012


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:*fn1


Before the court is a motion to dismiss brought by Defendant Construction and General Building Laborers Local 79 ("Defendant"). The complaint, filed by Pro Se Plaintiff Thomas Flowers ("Plaintiff"), alleges that Defendant discriminated against Plaintiff because of his race and retaliated against him for his participation in an earlier complaint against Defendant. The claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e - 2000e-17 ("Title VII"). Defendant moves to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff also requests appointment of pro bono counsel to assist in his claims. For the reasons set forth below, Defendant's motion to dismiss is GRANTED and Plaintiff's request for counsel is DENIED.


Plaintiff is an African American man who is a member of Defendant union. On August 17, 2011, Plaintiff filed a charge of racial discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). Compl. 1. On September 16, 2011, the EEOC mailed Plaintiff a Notice of Right to Sue, instructing Plaintiff that he had 90 days to commence his action in federal court.

Plaintiff filed his Complaint on September 28, 2011 with the Court's Pro Se office on a form provided to pro se litigants seeking to sue their employers for discriminatory conduct. Id. In it, Plaintiff alleged racial discrimination under Title VII for Defendant's failure to hire him, failure to promote him and for providing unequal terms and conditions of employment. Id. at 2. Plaintiff was previously named as a plaintiff in a discrimination complaint filed against Defendant. Summary judgment was entered in favor of Defendant on that complaint in September 2009. Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, 691 F. Supp. 2d 372 (S.D.N.Y. 2009). Plaintiff also alleges that he was retaliated against for being named as a plaintiff in the earlier suit.


According to the Supreme Court's most recent pronouncements, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The requirement that the court accept all factual allegations as true does not apply to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. The court's determination of whether a complaint states a "plausible claim for relief" is a "context-specific task" that requires application of "judicial experience and common sense." Id. at 1950.

Complaints brought by pro se plaintiffs "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted). This guidance applies especially when the plaintiff's civil rights are at issue. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). "However, even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a 'right to relief above the speculative level.' " Jackson v. NYS Dep't of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010)(quoting Twombly, 550 U.S. at 555).

In the context of an employment discrimination claim, the Supreme Court has held that a complaint need not allege specific facts that establish a prima facie case of discrimination. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). Rather, an employment discrimination complaint "must include only a short and plain statement of the claim [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 512 (internal quotations and citations omitted). Accordingly, to survive a motion to dismiss, a complaint in a Title VII case need not establish a prima facie case of employment discrimination, but the complaint must be facially plausible. Morales v. Long Island R.R. Co., No. 09 Civ. 8714, 2010 WL 1948606, at *3 (S.D.N.Y. May 14, 2010).


A.Plaintiff's Claims are Likely Time Barred*fn2

As an initial matter, Plaintiff's claims are likely time barred. A charge under Title VII must be filed with the EEOC by the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). If the charge is not timely filed, "a Title VII claim must be dismissed." Fields v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 301 F. Supp. 2d 259, 262 (S.D.N.Y. 2004). However, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

Plaintiff alleges in his complaint that the unlawful conduct occurred on May 5, 2010, but he did not file his charge with the EEOC until August 18, 2011. Defendant argues that these acts occurred more than 300 days prior to the filing of the charge and are time barred. Although Defendant is likely correct, I review the merits of the case for this Pro Se Plaintiff because "[f]airness, and not excessive technicality, must guide the ...

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