United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, District Judge.
On February 6, 2012, plaintiff Fernando Barroso, proceeding pro se and in forma pauperis, commenced this action against the City University of New York ("CUNY") and CUNY's Vice Chancellor of Legal Affairs, in his official capacity (together, "defendants"), alleging age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. (Compl. (Doc. No. 1). Currently before the Court is defendants' motion to dismiss Barroso's amended complaint (Am. Compl. (Doc. No. 19)) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. Nos. 22-25.) For the reasons that follow, defendants' motion is granted.
Barroso, who has been a CUNY employee since 1992, is a licensed exterminator who works at CUNY's Hunter College ("Hunter"). On September 28, 2011, Barroso filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that on July 20, 2011, presumably in a job interview for a "laborer" position, "Peter Plevritis-Administrative Superintendent" discriminated and retaliated against Barroso based on race and age, by asking "questions... for extermination, not laborer, laborer is moving furniture among other things." (Decl. of Alissa Wright Supp. Defs.' First Mot. to Dism. (Doc. No. 11) Ex. 1 (the "EEOC Charge").) The EEOC subsequently issued a Dismissal and Notice of Rights to Sue letter, which Barroso received on November 7, 2011. (Compl. at 7.)
On February 6, 2012, Barroso filed his original complaint in the instant action, alleging that CUNY discriminated against him on the basis of his age. Specifically, Barroso alleged that since 2003, he had applied for several higher-paying, non-exterminator jobs but, despite his qualifications, was not hired for any of them. Barroso asserted multiple, and sometimes conflicting, reasons for his inability to obtain these jobs, alleging not only that certain individuals at CUNY told him his age was a factor, but also that Hunter needed him to continue doing extermination work, that it would be inconvenient for Hunter to give him a different job, that Hunter had no incentive to promote him, that he failed to answer certain interview questions correctly, and that CUNY's job posts were disingenuous because CUNY already had someone in mind for jobs prior to advertising them, perhaps due to favoritism or nepotism. ( See Compl. at 5, 7; Pl.'s Mem. of L. Opp'n First Mot. to Dism. ("Pl. Orig. Br.") (Doc. No. 13) at 4-5.) Barroso also alleged, albeit not clearly, that he suffered unspecified retaliation after somebody made a phone call to the New York Fire Department. ( See Compl. at 6.) Barroso did not include the claim concerning Plevritis that he had raised in his earlier EEOC Charge.
On August 9, 2013, the Court granted defendants' motion to dismiss the original complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Aug. 9, 2013 Order (Doc. No. 18).) The Court found that the Eleventh Amendment barred all of Barroso's claims, and in any event, the claims were unexhausted and, therefore, procedurally barred. ( Id. at 4-8.) Further, although Barroso did not raise his one exhausted claim in his original complaint, the Court noted that this claim would fail under Rule 12(b)(6) in any event because Barroso described neither discriminatory conduct nor a nexus between any protected conduct and any adverse employment action. ( Id. at 9-10.) Because of Barroso's pro se status, the Court granted him leave to file an amended complaint alleging viable claims consistent with the Court's Order. ( Id. at 10.)
On November 7, 2013 Barroso filed an amended complaint, which contains the following new allegations: (1) Hunter "practices favoritism and nepotism in its hiring practices" (Am. Compl. ¶¶ 1-2); (2) "Management" at Hunter has given Barroso "misleading" information about whether Hunter's Central Office plays a role in hiring - specifically, while Associate Director of Facilities Management Maria Holder told Barroso that the Central Office plays a role in hiring, Director of Human Resources Serafina Dolan told Barroso that it does not ( id. ¶ 7); and
(3) Barroso's union delegate, Jose Sierra, told Barroso that the union could not assist him because "Hunter does what it wants to do'" ( id. ¶ 9). Barroso does not mention age or discrimination in the amended complaint.
I. Standard of Review
A plaintiff must establish that the court has subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1); 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Rene v. Citibank CA, 32 F.Supp.2d 539, 541-42 (E.D.N.Y. Jan. 11, 1999) (dismissing pro se complaint for lack of subject matter jurisdiction). Subject matter jurisdiction exists in federal court only when the (1) complaint presents a federal question, 28 U.S.C. § 1331, or (2) plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75, 000.00, id. § 1332. "[S]ubject-matter jurisdiction, because it involves the court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002).
A plaintiff must also plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed.R.Civ.P. 12(b)(6). 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The determination of 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. at 679.
The Court construes a pro se plaintiff's allegations liberally, to raise the strongest arguments that they suggest. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). However, 28 U.S.C. § 1915(e)(2)(B) requires a court to dismiss an in forma pauperis action that (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a defendant immune from such relief. A plaintiff's pro se status "does not exempt a party from compliance with ...