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Venson Price v. William Gizzi; William

June 11, 2012




On August 18, 2011, Plaintiff Venson Price ("Plaintiff"), a resident of Schenectady County, New York, commenced this action pro se in the Northern District of New York. Dkt. No. 1 ("Complaint"). Plaintiff names as Defendants William Gizzi, President of Tri-Valley Plumbing and Heating ("Defendant Gizzi"), William P. Gizzi, Jr., Vice President of Tri-Valley Plumbing and Heating ("Defendant Gizzi, Jr,"), and Paul A. Gannon, Foreman at Tri-Valley Plumbing and Heating ("Defendant Gannon") (collectively "Defendants"). Id. All Defendants are residents of Schenectady County and Albany County, New York. Id. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging a deprivation of his civil rights. Id.

Presently before the Court is a Motion to dismiss the Complaint for failure to state a claim upon which relief can be granted, filed by Defendants Gizzi and Gizzi, Jr. on October 7, 2011, and a Motion to dismiss the Complaint for failure to state a claim upon which relief can be granted, filed by Defendant Gannon on October 26, 2011. Dkt. Nos. 5 ("Gizzi Motion"), 8 ("Gannon Motion"). In asking the Court to dismiss Plaintiff's claims with prejudice, Defendants argue, inter alia, that:

(1) Plaintiff cannot bring a § 1983 suit against private citizens; (2) Plaintiff cannot bring a suit under Title VII of the Civil Rights Act of 1964 against private individuals; (3) Plaintiff cannot sue Defendants because they have not first been administratively charged and named in an EEOC complaint; and (4) Plaintiff cannot amend his Complaint or add a new defendant because such an amendment is time barred. See generally Gizzi Mot.; Gannon Mot.; Dkt. No. 11 at 6-11.*fn1

Plaintiff concurrently seeks permission for leave to amend his Complaint, making his request first while still pro se in a Letter Motion filed on October 24, 2011 and later by counsel on January 3, 2012.*fn2 See Dkt. Nos. 7 ("Letter Motion") and 18 ("Cross-Motion"). Plaintiff's proposed amendment would withdraw the claims against Defendants and would instate Tri-Valley Plumbing and Heating ("Tri-Valley") as a Defendant in the action. See Dkt. No. 7-1 ("Proposed amended complaint"); Dkt. No. 27-1 ("Plaintiff's Support Memorandum II").*fn3 Furthermore, Plaintiff's Proposed amended complaint seeks to withdraw the claims of alleged violations of 42 U.S.C. § 1983 and replace them with causes of action alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law ("NYSHRL"). Dkt. No. 18-3 ("Plaintiff's Opposition Memorandum") at 7; see also N.Y. EXEC. LAW § 290.

For the reasons stated below, Plaintiff's Motion to amend is granted, Defendant Gannon's Motion to dismiss is granted and all claims against him are dismissed with prejudice, and Defendants Gizzi and Gizzi, Jr.'s Motion is granted in part and denied in part.


Plaintiff is of African American descent. Pl.'s Opp'n Mem. at 5. Defendants all worked for Plaintiff's former employer, Tri-Valley, located in Schenectady County, New York. See Compl. During his employment, Plaintiff was the only African American employed by Tri-Valley. Id. ¶ 27. Plaintiff's causes of action against Defendants stem from a series of work-related incidents that allegedly took place between April 2007 and August 2011. See id. ¶¶ 7-16. Plaintiff alleges the following: that in April 2007, his identification badge "was defaced with extreme racial prejudice" by Defendant Gannon, who drew an "Afro" on the image, placed a label reading "BLACK ICE" under Plaintiff's photo, and subsequently taped the badge to the steering wheel of Plaintiff's company-supplied vehicle. Id. ¶ 7. Plaintiff further alleges that Defendant Gannon gained access to the vehicle from Defendant Gizzi, Jr., the son of Tri-Valley President, Defendant Gizzi. Id. Plaintiff alleges that in March 2008 he "was subjected to racial intolerance and verbal abuse" by Tri-Valley foreman, Defendant Gannon. Id. ¶ 8.

Plaintiff further alleges that for over three years he faced constant abuse from Defendant Gannon who "would [often] use words like 'Nigger, Coon, Porch Monkey' etc. when addressing [him]." Id. ¶ 18. On one occasion Defendant Gannon said to Plaintiff with other co-workers present, that "the only good Niggers were dead Niggers," and on another occasion while at a job, where another African American contractor was present, Defendant Gannon criticized the contractor's work, referred to the other contractor as Plaintiff's "dad," and stated that "all you guys look alike." Id. at ¶¶ 18, 20 (internal quotation marks omitted). Plaintiff also alleges that on one occasion, Defendant Gannon, after using a portable toilet, told Plaintiff that he had "drop[ped] [Plaintiff's] kids off at the pool." Id. ¶ 18. Plaintiff asserts that the racial hostility became so severe and abusive that he informed company Vice President, Defendant Gizzi, Jr., of "the intolerable working conditions" to which he was being subjected. Id. ¶ 8.

In 2008, Defendant Gannon allegedly hung a picture of then-Senator Obama, doctored to look like Adolf Hitler, on the company tool storage box. Id. ¶ 21. When Plaintiff confronted Defendant Gannon about it, informed him that he found the picture to be offensive, and said that he thought that Senator Obama would be elected President, Defendant Gannon responded saying that "[e]ven if he does[,] someone will kill his black ass." Id. (internal quotation marks omitted). When Plaintiff informed Defendant Gizzi, Jr. of the offensive photo and remarks made by Defendant Gannon, Defendant Gizzi, Jr. responded only that "he did not care for Obama either." Id.

On November 21, 2008, Plaintiff alleges that he was publicly humiliated in front of other co-workers at a foreman's meeting, at which both Defendants Gizzi and Gizzi, Jr. were present, by a company commercial salesman, who described Plaintiff's work as "Nigger rigging," and Plaintiff was subsequently belittled and mocked by those present. Id. ¶ 9. On September 18, 2009, Plaintiff further alleges that while performing work at Pinewood School on behalf of Tri-Valley, Defendant Gannon "discredited work that [Plaintiff had] performed, and [Plaintiff's] ability to do work in a public setting by stating that [Plaintiff's] work looked like 'shit' and proceed[ing] to tear it apart." Id. ¶ 10. Defendant Gannon then allegedly altered another picture of President Obama to show a penis in his mouth and hung it over the job box for the purpose of angering Plaintiff. Id. ¶ 24. When Plaintiff called Defendant Gizzi, Jr. to tell him about the incident, Defendant Gizzi, Jr. simply told Plaintiff to "do [his] fucking job." Id. Plaintiff, infuriated, told Defendant Gizzi, Jr. "that [he was] not putting up with this anymore [and was] giving [him his] two week notice." Id. ¶ 25.

Plaintiff alleges that on September 21, 2009 Defendant Gizzi, Jr. specifically altered the Tri-Valley employee handbook section regarding vacation pay, so as to avoid dispersing vacation pay owed to Plaintiff. Id. ¶ 11. Defendant Gizzi, Jr. also allegedly refused to return Plaintiff's personal tools to him. Id. Addtitionally, Defendant Gizzi allegedly filed false charges of grand larceny, for which he provided a sworn statement, alleging that Plaintiff had unlawfully taken tools from Tri-Valley after his discharge on October 5, 2009. Id. ¶ 14. Plaintiff was subsequently arrested on October 19, 2009, and these charges against Plaintiff were eventually dismissed in their entirety on March 2, 2011. Id. Plaintiff further alleges that Defendant Gizzi defamed him by knowingly issuing the false sworn statement that led to his arrest, since the arrest resulted in Plaintiff's discharge from employment at John R. Mott Inc, where he was employed at the time, and caused Plaintiff to be disqualified from a number of other prospective employment positions. Id. ¶ 15.

On September 22, 2009, Defendant Gizzi, Jr. allegedly deducted $125.00 from Plaintiff's pay for a saw that had not been returned to Tri-Valley. Id. ¶ 12. Plaintiff alleges that the saw in question was his and that it was purchased with Plaintiff's personal funds. Id. Plaintiff further alleges that on or around September 22, 2009, Defendant Gizzi, Jr. knowingly submitted false documentation to the New York State Department of Labor Unemployment Insurance Appeal Board regarding Plaintiff's termination, falsely stating that Plaintiff had left his employment with Tri-Valley without good cause. Id. ¶ 13. Plaintiff alleges that on September 28, 2010, he was diagnosed with depression by his family physician. Id. ¶ 16. The present action followed.


A. Motion to Amend the Complaint

Rule 15 of the Federal Rules of Civil Procedure state that "a party may amend its pleading only with the opposing party's written consent or the court's leave[,] . . . [but that t]he court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). "In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962). Additionally, the allegations of a pro se litigant are to be construed under a "less stringent standard[] than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). "A pro se plaintiff, particularly one bringing a civil rights action, should be afforded an opportunity fairly freely to amend his complaint." Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Additionally, "'[t]he party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial.'" Gorham-DiMaggio v. Countrywide Home Loans, Inc., No. 1:08-CV-019, 2009 WL 1748743, at *3 (N.D.N.Y. June 19, 2009) (quoting New York v. Panex Indus., Inc., No. 94-CV-0400, 1997 WL 128369, at *2 (W.D.N.Y. Mar.14, 1997)). A district court is afforded broad discretionary power in granting leave to amend pleadings. Local 802, Associated Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998). However, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Where "futility is an appropriate basis for denying leave to amend, such denial should be contemplated within the standards necessary to withstand a motion to dismiss pursuant to [Rule 12(b)(6)]." Gorham-DiMaggio, 2009 WL 1748743, at *3.

In order to be granted leave to amend a complaint that names a new party, Plaintiff must name a "new party [who must] be deemed to relate back to the original timely complaint." VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir. 2001). Further, [t]here are . . . three requirements that must be met before an amended complaint that names a new party can be deemed to relate back to the original timely complaint. First, both complaints must arise out of the same conduct, transaction, or occurrence. Second, the additional ...

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