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Shallow v. Scofield

September 21, 2012


The opinion of the court was delivered by: Jesse M. Furman, United States District Judge


Sean S. Shallow brings this case, pro se, against two of his former employers and several employees thereof, alleging - among other things and in various combinations - sexual assault, sexual harassment, employment discrimination, libel and slander, and unauthorized disclosure of medical records.*fn1 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants all move to dismiss the operative complaint - that is, the second amended complaint (Docket No. 21) - for failure to state a claim upon which relief can be granted. In addition, after Defendants' motions were filed, Plaintiff moved for leave to amend his complaint. For the reasons discussed below, Defendants' motions to dismiss are GRANTED and Shallow's motion for leave to amend the complaint is DENIED.


In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). The Court may consider not only the complaint itself, but also any written instrument attached to the complaint as an exhibit, any statements or documents incorporated by reference in the complaint, and documents that are "integral" to the complaint even if they are not incorporated by reference. See, e.g., L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). In addition, although a court generally may not look outside the pleadings when reviewing a 12(b)(6) motion to dismiss, because a pro se plaintiff's allegations must be construed liberally it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition papers, as long as the allegations are consistent with the complaint. See, e.g., Braxton v. Nichols, No. 08 Civ. 8568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); cf. Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering a pro se plaintiff's affidavit in opposition to a motion to dismiss in addition to those in the complaint). Accordingly, the following facts are drawn from Shallow's second amended complaint and his opposition papers to the motions to dismiss (to the extent they are consistent with the complaint), and are accepted as true for the purposes of this motion.

72nd Street Medical, a medical practice, and Enzo Labs, a clinical laboratory, are both located in New York City. (Compl. at 2, 10). In or about March 2007, 72nd Street Medical hired Shallow as a phlebotomist. (Compl. at 9-10). The complaint alleges that while employed there, Shallow was the victim of discrimination on the grounds of perceived homosexuality. (Compl. at 9; Pl.'s Mem. in Opp. to 72nd Street Medical's Mot. to Dismiss ("Opp. Mem.") at 3 (Docket No. 44)). For the most part, the complaint does not detail the nature of this alleged discrimination, but it does allege that Shallow's supervisor - Defendant Sterlin Johnson - physically touched him on several occasions. (Compl. at 9; Opp. Mem. at 4).*fn2 When Shallow complained about the most serious of these instances to his boss - Defendant Richard Scofield - he was ignored. (Compl. at 9; Opp. Mem. at 4). Additionally, shortly after complaining, Defendant Camille Frederick - a colleague with whom Shallow had recently broken off an affair - began to accuse him of having HIV. (Compl. at 9-10; Opp. Mem. at 4). In reaction to this accusation, Shallow had himself tested for a battery of sexually transmitted diseases and submitted the results to 72nd Street Medical as proof that he was healthy. (Compl. at 9-10; Opp. Mem. at 4-5). Shortly thereafter, on March 20, 2008, Johnson fired Shallow, allegedly for insubordinate and inappropriate behavior toward his co-workers and supervisor. (Compl. at 10; see also 72nd Street Medical's Mem. in Support of Mot. to Dismiss at 3). The complaint appears to assert, however, that Shallow was fired based on the false perception that he was HIV positive or in retaliation for complaining about (or rejecting) Johnson's sexual advances. (Compl. at 8-10; Opp. Mem. at 5).

In 2009, Shallow began to work in the patient service center of Enzo Labs, only a few blocks from 72nd Street Medical. (Compl. at 10). The complaint alleges that, a few weeks into the job, a repair technician who did work at both 72nd Street Medical and Enzo Labs told an employee at Enzo Labs - Defendant Chato Luna - about the complications at Shallow's former job. (Id.). Thereafter, Luna and two other Enzo Labs employees - including Shallow's supervisor, Defendant Robin Pratt - contacted Johnson at 72nd Street Medical, who told them that Shallow was HIV positive. (Id.). Shallow claims that, as a result, he was the victim of discrimination at Enzo Labs. The discrimination he describes was comprised mostly of statements from delivery drivers, patients, and employees about his health. (Id.). Shallow also alleges that Enzo Labs patients discriminated against him by, among other things, refusing to give him their insurance cards and making suggestive references to his anatomy. (Id.). According to the complaint, Shallow offered to be tested to prove to Enzo Labs that he was in good health, but Enzo Labs instead obtained his medical records directly from 72nd Street Medical without his consent. (Id. at 30).

On August 31, 2009, Shallow filed a complaint with the Office of Civil Rights ("OCR") at the Department of Health and Human Services ("HHS"), alleging that 72nd Street Medical had disclosed the results of a blood test to Enzo Labs without his consent. (Id.). At about the same time, he complained to Pratt at Enzo Labs. (Id. at 10). The next day, Pratt visited Shallow at the patient service center and fired him, allegedly for "performance issues" related to his "refus[al] to perform accessioning on [a] stat. specimen." (Greenhaus Affirmation Ex. 4 (Docket No. 39)). Almost exactly one year later, on August 31, 2010, the OCR advised Shallow that it had concluded its investigation of his claim. (Compl. at 30). The OCR reported that it had spoken to 72nd Street Medical personnel and conducted interviews with the members of the Enzo Labs staff who had been identified by Shallow. (Id. at 30-31). The OCR concluded that there was insufficient evidence to substantiate Shallow's claim and it closed his case. (Id. at 31).

Shallow's complaint includes a slew of bizarre and conspiratorial allegations with respect to the period after his employment at Enzo Labs (id. at 10-13), although the connections between these allegations and any of Defendants are unclear or altogether absent. Following his termination by Enzo Labs, Shallow moved to Phoenix, Arizona. (Id. at 10-11). Shallow alleges that the false rumors about his health followed him there and that he was discriminated against everywhere he went - from the restaurants he patronized to the laundromats where he washed his clothes. (Id. at 11). Among other things, he claims that his apartment and telephone were bugged with recording devices, his car was tampered with so that it would overheat every twenty minutes, and his food was laced with a substance that gave him "hyper adrenal syndrome." (Id.). In addition, Shallow states that he was falsely accused of child molestation and being a gang member, a drug dealer, and a counterfeiter - although it is not clear by whom or for what purpose. (Id.). The "discrimination, slander, [and] violation of [his] . . . civil liberties continued," Shallow alleges, even after he moved away from Arizona to New Jersey. (Id. at 13).

On approximately May 10, 2011, and May 27, 2011, Shallow filed complaints with the Equal Employment Opportunity Commission ("EEOC") alleging that 72nd Street Medical and Enzo Labs discriminated and retaliated against him on various grounds. (Id. at 3; Greenhaus Affirmation Ex. 2 at 2; see also Zwerling Decl. Ex. 3 at 9 (Docket No. 36)). About one month later, the EEOC issued a right-to-sue letter stating that it had been unable to make any factual findings or conclude that there had been any violations. (Compl. at 5).

On August 19, 2011, Shallow filed the instant law suit alleging various claims pursuant to Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. §§ 2000e -2000e-17; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-297; the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101-131; and unspecified sections of the Health Insurance Portability and Accountability Act ("HIPAA"). (Docket No. 2). On September 22, 2011, Shallow amended his complaint to add claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112-12117. (Docket No. 9). On October 31, 2011, with subsequent leave from the Court (Docket No. 19), Shallow amended the complaint for a second time to add a new defendant and correct the name of a defendant already named; in so doing, however, he neglected to check the boxes for NYSHRL and NYCHRL claims on the civil cover sheet. (Docket No. 21). Finally, on April 19, 2012, after Defendants had filed their motions to dismiss the second amended complaint, Shallow filed a motion for leave to file yet another amended complaint (incorrectly styled a "second amended complaint" as well). (Docket No. 63). In the proposed amended complaint, Shallow realleges both of his state law claims.


A.Standard of Review

To survive a Rule 12(b)(6) motion, a plaintiff must generally plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant acted unlawfully." Id. A complaint that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Further, if the plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570.

The heightened pleading standards outlined in Twombly and Iqbal notwithstanding, the Supreme Court has made clear that, to survive a motion to dismiss, "a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 ...

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