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Cinevert v. Varsity Bus Co., Inc.

United States District Court, E.D. New York

September 22, 2014

VARSITY BUS CO., INC. et al., Defendants.


ROSLYNN R. MAUSKOPF, District Judge.

Pro se plaintiff Daniel Cinevert ("Cinevert") brings this action, sounding in employment discrimination and intentional tort, against his former employer, Varsity Bus Company, Inc. ("Varsity"), [1] several of its individual employees, and the Department of Education's Office of Pupil Transportation ("the DOE"). Currently before the Court is the DOE's fully-briefed[2] motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). (Doc. No. 61.) For the reasons set forth below, the DOE's motion is GRANTED.


I. Facts[3]

Briefly stated, and as alleged, from 1998 to 2010, Cinevert worked at Varsity as a school bus driver, and he was subject to inspections and oversight by the DOE's Office of Pupil Transportation. Cinevert claims that, during his employment at Varsity, he was discriminated against on the basis of his Haitian ancestry and age, and defamed and caused to suffer emotional distress by alleged comments calling him a homosexual, a drug user, and a thief. As relevant to the motion at hand, Cinevert specifically alleges that DOE inspectors did the following: on March 19, 2009 and October 19, 2010, inspected the bus that Cinevert was driving; conducted surveillance of Cinevert at unspecified times while he drove his bus routes; on April 26, 2010, "worked in connivance" with Varsity to change the "conditions" of Cinevert's job by adding a new student to his route, which required Cinevert to begin work earlier in the morning and to drive the bus through a dangerous intersection; and, following his resignation from Varsity on January 4, 2011, cancelled his bus-driving "certified card." (Plaintiff's Second Amended Complaint ("Pl.'s Comp.") (Doc. No. 36) ¶¶ 21, 64, 70, 85, 88, 135, 209.)

II. Procedural History

On January, 24, 2012, Cinevert filed a complaint against Varsity and a number of its employees in Kings County Supreme Court. (Doc. No. 4.) On March 13, 2012, Varsity removed the action to this Court. (Doc. No. 1.) On April 25, 2013, Cinevert filed the operative pleading in this case - the "2nd Amended Complaint" - in which he named the DOE as a defendant for the first time.[4] (Doc. No. 36.)

Cinevert's complaint, read broadly, is construed to raise the following causes of action: race discrimination under 42 U.S.C. § 2000-3 ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), the New York State Human Rights Law as codified in New York Executive Law § 296 ("SHRL"), and the New York City Human Rights Law as codified in New York Administrative Code §§ 8-101 et seq. ("CHRL"); retaliation under Title VII; age discrimination under the Age Discrimination in Employment Act ("ADEA"); "constructive discharge"; and common law actions for defamation and intentional infliction of emotional distress.


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)). 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.'" Malachi v. Postgraduate Ctr. for Mental Health, No. 10-CV-3527 (RRM) (LB), 2013 WL 782614, at *1 (E.D.N.Y. Mar. 1, 2013) (quoting Harris, 572 F.3d at 71-72). In other words, the Court holds pro se pleadings to a less exacting standard than complaints drafted by attorneys, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and reads such pleadings to "raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations omitted). Nevertheless, 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), and "[w]hen a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the claim." Malachi, 2013 WL 782614, at *1 (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).


I. Race and Age Discrimination Claims, and Title VII Retaliation Claim

Cinevert raises a host of claims under federal and state law sounding in race and age discrimination, and for retaliation ostensibly concerning protected action under Title VII. However, in his opposition to the DOE's motion to dismiss, Cinevert repeatedly and unequivocally states that he is not advancing any claims of race or age discrimination against the DOE. ( See Pl.'s Opp'n at 1 ("Plaintiff has to say that he does not involve DOE in the age and race discrimination claims"), 9 ("Plaintiff never has [sic] the intention to include Defendant DOE in the age and race discrimination' claims"), 10 ("Plaintiff does not bring absolutely no [sic] age and race discrimination claims against Defendant DOE").) As such, the Court construes that aspect of Cinevert's response as a motion to withdraw such claims against the DOE. See generally Ibraheem v. Wackenhut Services, Inc., No. 09-CV-5335 (SLT), 2011 WL 4592832, at *2 (E.D.N.Y. Sept. 30, 2011) ("In the Plaintiff's [opposition to the ...

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