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Piedad Garzon v. Jofaz Transportation

February 28, 2013


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff Piedad Garzon, proceeding pro se and in forma pauperis, commenced this action in the United States District Court for the Southern District of New York on August 2, 2011. (Doc. No. 2.) The complaint alleged discrimination in violation of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. (Id.) By an Order dated November 10, 2011, the action was transferred to this Court. (Doc. No. 12.) On April 30, 2012, defendant requested a pre-motion conference regarding two motions it wished to file pursuant to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(f). (Doc. No. 18.) By an Order dated October 24, 2012, this Court dispensed with the pre-motion conference and directed the parties to file their motion papers. On January 28, 2013, defendant filed a copy of this fully briefed motion to dismiss. (Doc. No. 25.) For the reasons that follow, defendant's motion is GRANTED in part and DENIED in part.


When deciding a motion to dismiss, the Court's review is "limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPointPepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). In order to withstand a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At this stage the Court takes all factual allegations in the complaint as true and draws all reasonable inferences in favor of the non-movant. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). A complaint need not contain "'detailed factual allegations,'" but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Although a pro se plaintiff must satisfy pleading requirements, the Court is "obligated to construe a pro se complaint liberally." See Harris, 572 F.3d at 71-72 (citations omitted). In other words, the Court holds pro se pleadings to a less exacting standard than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008) (citation omitted). Since pro se litigants "are entitled to a liberal construction of their pleadings," the Court reads pro se pleadings to "raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted). However, the Court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Molina v. New York, 956 F.Supp. 257, 259 (E.D.N.Y. 1995). When a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted).


Pursuant to Rule 12(b)(6), defendant has moved to dismiss the complaint on the ground that plaintiff has failed to state a claim for race or gender discrimination. (Doc. No. 25.) First, however, the Court considers defendant's request pursuant to Rule 12(f) to strike certain newspaper articles appended to the complaint. (Def.'s Mem. of Law in Supp. (Doc. No. 26) at 7-8.)

I.Motion to Strike

Plaintiff attached to her complaint newspaper articles describing investigations of corruption involving several bus companies, including defendant. (See Doc. No. 2 at 17-18.) Defendant seeks to strike this material as prejudicial and irrelevant. (See Def.'s Mem. of Law in Supp. (Doc. No. 26) at 7-8.) Rule 12(f) allows a court to "order stricken from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Fed R. Civ. P. 12(f). "Motions to strike 'are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation.'" Crespo v. New York City Transit Auth., No. 01-CV-0671, 2002 WL 398805, at *11 (E.D.N.Y. Jan. 7, 2002) (quoting Lennon v. Seaman, 63 F.Supp.2d 428, 446 (S.D.N.Y. 1999)). A motion to strike matter as impertinent or immaterial "will be denied, unless it can be shown that no evidence in support of the allegation would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976); Lynch v. Southampton Animal Shelter Found. Inc., 278 F.R.D. 55, 63 (E.D.N.Y. 2011). In order to succeed on a motion to strike, a movant must show "(1) no evidence in support of the allegations would be admissible; (2) the allegations have no bearing on the relevant issues; and (3) permitting the allegations to stand would result in prejudice to the movant." Roe v. City of New York, 151 F.Supp.2d 495, 510 (S.D.N.Y. 2001). Ultimately, whether to grant a motion to strike is committed to the sound discretion of the district court. See Chacko v. Dynair Services Inc., No. 96-CV-2220 (SJ), 1998 WL 199866, at *1 (E.D.N.Y. Mar. 15, 1998).

In light of the allegations in the complaint, the Court concludes that these articles "amount[] to nothing more than name calling" and do not contribute to plaintiff's substantive claims. Global View Ltd. Venture Capital v. Great Cent. Basin Exploration, L.L.C., 288 F.Supp.2d 473, 481 (S.D.N.Y. 2003). First, it is highly unlikely that newspaper articles about an investigation into corruption would have any bearing on plaintiff's claims for discrimination under Title VII or the NYSHRL. The articles neither relate to any element of plaintiff's claims nor provide any circumstantial evidence from which permissible inferences could be drawn. Second, given the attenuated link between the subject of these articles and plaintiff's suit, the prejudicial quality of the articles stands in stark contrast to any probative value. Finally, the inclusion of the articles fosters the false inference that plaintiff's employer is unscrupulous and therefore more likely to have discriminated against plaintiff -- an inference the rules of evidence strenuously seek to discourage. See, e.g., Fed. R. Evid. 403, 404. The Court concludes that defendant's motion to strike the newspaper articles should be granted.

II.Motion to Dismiss

Claims brought under Title VII are usually analyzed under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that analysis, a plaintiff must make out a prima facie case that demonstrates (1) she was within the protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas,411 U.S. 802-04; United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011). The same analysis applies to claims brought under the NYSHRL. See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). However, McDonnell Douglas does not apply at the motion to dismiss stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) ("This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss."); Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F.Supp.2d 228, 236 (E.D.N.Y. 2011). Thus, the standard here is simply whether plaintiff's complaint satisfies federal pleading requirements.

The complaint in this case alleged discrimination in violation of the Title VII and the NYSHRL, claiming unlawful termination and unequal terms and conditions of employment. (Doc. No. 2.) Construing the complaint liberally, the Court interprets it as raising claims for (1) discriminatory treatment in the assignment of bus routes; (2) unlawful withholding of wages; (3) a hostile work ...

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