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Gary R. v. Held's Janitorial Service

September 12, 2012

GARY R. KREHAN, JR., PLAINTIFF,
v.
HELD'S JANITORIAL SERVICE, INC.
DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

1. Plaintiff Krehan, proceeding pro se, commenced this action on February 22, 2012, alleging that Held's Janitorial Service, Inc. ("Held's") discriminated against him on the basis of his gender and disability, failed to provide him reasonable accommodations, and retaliated against him for complaining of discrimination and/or harassment. He asserts claims under Title VII of the Civil Rights Act of 1962, as amended, 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq., and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Presently before the Court is Held's Motion to Dismiss. (Docket No. 4.)

2. Krehan filed a form employment discrimination complaint provided by the Court, and alleges that he was employed by Held's beginning in August 2003. The first discriminatory act is alleged to have occurred on November 1, 2010, with several additional incidents taking place between then and December 10, 2010. Krehan disclosed his alleged disability to his employer on January 28, 2011, and a further act of discrimination is alleged to have occurred on March 14, 2011.

3. The Court's complaint form directs, that the plaintiff "[s]tate here as briefly as possible the facts of your case. Describe how each defendant is involved, including dates and places." (See Docket No. 1, ¶ 19 (emphasis in original).) In response, Krehan provided the following:

I was bullied and harassed on several occasions.

I was discriminated against for my sex.

I was in a bias situation for multiple years.

I was discriminated against because, I have a brain tumor.

After I was terminated in 4/2011, the defendant also prevented me from obtaining employment with a new employer. (Id.)

4. Held's moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to provide sufficient facts to state a claim for relief. The Court issued a scheduling notice, giving Krehan a date by which to respond. (Docket No. 9.) He did not do so. Thereafter, the Court provided Krehan a second opportunity to respond, warning that it would consider Held's motion as unopposed if no response was filed by June 15, 2012. (Docket No. 10.) The second deadline is long expired, with no action by Krehan.

5. In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595

F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. 6. The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The decision instructs district courts to first "identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations[,] a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "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. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57 (internal citations omitted)).

7. Here, Krehan has not set forth any facts in support of his claims that would allow for a finding of plausibility.

8. Krehan alleges that he was discriminated against because of his sex and "in a bias situation for multiple years." To establish a prima facie case of gender discrimination,*fn1 a plaintiff must show that he is a member of a protected class, has satisfactorily performed his job, suffered an adverse employment action, and the adverse action occurred under circumstances giving rise to an inference of discrimination. McDonald Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Krehan does allege that he was terminated, which clearly is an adverse job action. However, any suggestion he was terminated because of his gender is wholly conclusory. He does not provide any details about his termination, nor does he state any circumstances that would suggest gender-bias. Conclusory allegations are ...


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