United States District Court, W.D. New York
ALPHONSO L. WELCH, Plaintiff,
SWEETWORKS/NIAGARA CHOCOLATES, Defendant.
ALPHONSO L. WELCH, Pro Se West Seneca, New York,
JAECKLE FLEISCHMANN & MUGEL, LLP SCOTT PATRICK HORTON, of Counsel, Buffalo, New York, Attorneys for Defendant.
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned by Honorable Richard J. Arcara on April 30, 2013, for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendant's motion to dismiss for failure to state a claim (Doc. No. 5), filed April 29, 2013.
BACKGROUND and FACTS
Plaintiff Alphonso L. Welch ("Plaintiff" or "Welch"), proceeding pro se, commenced this employment discrimination action on February 7, 2013, alleging employment discrimination against his employer, Defendant SweetWorks, Inc. ("Defendant" or "SweetWorks"). The two claims for relief asserted by Plaintiff are sparse, alleging (1) Defendant, to retaliate against Plaintiff for "a past filing, " has failed to pay Plaintiff his "proper wages" ("Retaliation Claim"); and (2) others employed in the same position as Plaintiff are treated differently by Defendant ("Discrimination Claim"). Although the Complaint's allegations fail to specify the type of "past filing" for which Defendant has allegedly retaliated against Plaintiff, or the ground on which Plaintiff's Discrimination Claim is based, the Notice of Right to Sue ("Right to Sue Letter"), attached to the Complaint provides some more detail. Specifically, Plaintiff identifies an Equal Employment Opportunity Commission ("EEOC"), charge Plaintiff filed on October 23, 2007, complaining about disability discrimination as the impetus for two adverse employment actions taken against Plaintiff by Defendant in May 2012. Plaintiff further maintains that although his work classification is as a "D-Operator, " Plaintiff's job responsibilities are more consistent with those of an "A-Operator, " such that Plaintiff has been paid the lower salary for a D-Operator as compared to an A-Operator, which Plaintiff attributes to the fact Plaintiff is black and disabled, and as retaliation for having earlier filed a claim with the EEOC.
On April 29, 2013, Defendant filed the instant motion (Doc. No. 5) ("Defendant's Motion"), seeking to dismiss the Complaint for failure to state a claim, supported by the attached Declaration of Scott P. Horton, Esq. (Doc. No. 5-1) ("Horton Declaration"), and Memorandum of Law in Support of Defendant SweetWorks, Inc.'s Motion to Dismiss (Doc. No. 5-2) ("Defendant's Memorandum"). On June 10, 2013, Plaintiff filed an Answer in opposition to Defendant's Motion (Doc. No. 9) ("Plaintiff's Response"). On July 22, 2013, Defendant filed the Reply Memorandum of Law in Further Support of SweetWorks, Inc.'s Motion to Dismiss (Doc. No. 12) ("Defendant's Reply"). On September 3, 2013, Plaintiff filed the Reply Memorandum of Law in Further Support of Plaintiff's Motion for Motion Not to Dismiss (Doc. No. 13) ("Plaintiff's Sur-Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion should be GRANTED.
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"), the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (court is required to liberally construe the complaint, accept as true all factual allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor). The Supreme Court requires application of "a plausibility standard, ' which is guided by [t]wo working principles.'" Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "First, although a court must accept as true all of the allegations contained in a complaint, ' that tenet' is inapplicable to legal conclusions, ' and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris, 572 F.3d at 72 (quoting Iqbal, 556 U.S. at 678). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss, ' and [d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 556 U.S. at 679).
"To 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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A claim will have 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.'" Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Ashcroft, 556 U.S. at 678); see Twombly, 550 U.S. at 570 (the complaint must plead "enough facts to state a claim to relief that is plausible on its face"). The factual allegations of the complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Twombly, 550 U.S. at 570.
Further, "[ p ] ro se complaints must be liberally construed and interpreted to raise the strongest arguments they suggest." Sykes, 723 F.3d at 403 (internal quotation marks and citation omitted). "In adjudicating a motion to dismiss, a court may consider only the complaint, any written instrument attached, and any document upon which the complaint heavily relies.'" ASARCO LLC v. Goodwin, ___ F.3d ___, 2014 WL 2870117, at * 5 (2d Cir. June 25, 2014) (quoting In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013)). Here, Plaintiff has attached to the Complaint a copy of the Charge of Discrimination ("Charge") filed with the EEOC in connection with his instant claims, and a copy of the EEOC's Notice of Right to Sue Letter ("Right to Sue Letter") issued with regard to such claims. Nevertheless, even a liberal construction of the Complaint, including the attached Charge and Right to Sue Letter, fails to set forth sufficient factual allegations to state a plausible claim for relief.
Preliminarily, the court addresses Defendant's argument in support of dismissal that the Complaint fails to identify the statutory basis for either of Plaintiff's claims. Defendant's Memorandum at 2-3. Although not alleged within the confines of the actual Complaint, the Charge and Right to Sue Letter specify that Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C. § 2000e et seq. ("Title VII"), provides the statutory basis for Plaintiff's claim that he was subjected to retaliation based on his earlier filing of an EEOC charge, and the employment discrimination claim insofar as it is based on race, whereas the Americans with Disabilities Act of 1990, § 202, 42 U.S.C. § 12132 ("the ADA"), is the statutory basis insofar as Plaintiff's employment discrimination claim is ...