United States District Court, N.D. New York
KRZYSZTOF DOROZ, pro se Utica, NY.
KRISTEN M. BENSON, ESQ., SMITH, SOVIK, KENDRICK & SUGNET, P.C., Syracuse, NY, Attorneys for Defendants.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
Plaintiff Krzysztof Doroz ("plaintiff" or "Doroz") initiated this civil action on September 12, 2013. On January 22, 2014, he filed an amended complaint in which he asserts various claims against defendants Columbia Place Associates, LLC ("CPA"), Diane Benn ("Benn"), and Garry Smith ("Smith") (collectively "defendants").
Liberally construing the amended complaint, which is made difficult due to plaintiff's pro se status, he brings the following claims: (1) employment discrimination based on his perceived disability in violation of the Americans with Disabilities Act ("ADA"); (2) employment discrimination based on his age in violation of the Age Discrimination in Employment Act ("ADEA"); (3) discrimination in violation of 42 U.S.C. § 1981; (4) employment discrimination based on his national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); (5) a hostile work environment in violation of Title VII; and (6) retaliation in violation of Title VII.
On April 18, 2014, defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has responded in opposition, and defendants replied. The motion was considered on submit without oral argument.
II. FACTUAL BACKGROUND
The following factual allegations, which are assumed true for purposes of the motion to dismiss, have been gleaned from the somewhat confusing amended complaint and informed by plaintiff's opposition to the pending motion.
CPA is a staffing agency located in Utica, New York. Benn is a recruiter at CPA, and Smith is her supervisor. Doroz, a native of Poland and resident of Utica, sought employment assistance from CPA in 2010. In April 2011 he was placed in a position at Indium Corporation ("Indium"). However, after working at Indium for a period of months, his employment was terminated despite the fact that he was qualified for the job and performed satisfactorily. Plaintiff claims Benn and Smith were somehow responsible for his termination.
Nonetheless, Doroz continued to work at Indium for two more months, reportedly with the approval of that employer. In mid-October 2011 Benn advised him that his employment had again been terminated and instructed him not to return to Indium. She also threatened to call the police if he returned to Indium's facility. Plaintiff protested and attempted to contact a manager at Indium to discuss the matter. Smith reportedly showed up at plaintiff's house unannounced, yelled at him in the driveway, and threatened to have him arrested if he contacted anyone at Indium. Plaintiff claims Benn failed to secure comparable alternative employment for him thereafter and instead found jobs in undesirable locations with lesser pay than he had earned at Indium. She also allegedly recruited American candidates with similar or lesser qualifications than plaintiff.
On October 15, 2012, Doroz lodged a complaint with the New York State Division of Human Rights ("NYSDHR"), alleging employment discrimination by CPA generally and Benn and Smith specifically. In that complaint, he checked off the boxes for age and national origin discrimination as well as retaliation. See Benson Affirmation, Ex. A, ECF No. 20-2, 3. He then provided a detailed narrative-which practically mirrors the allegations in the amended complaint, including the incident involving Smith allegedly yelling at him in his driveway-in which he claims Benn and Smith discriminated against him because he is Polish. The NYSDHR completed an investigation and concluded that "there is NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." Benson Affirmation, Ex. D, ECF No. 20-5, 2.
On April 16, 2013, Doroz filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC adopted the findings of the NYSDHR investigation and issued a right-to-sue letter on June 14, 2013. Plaintiff has since found employment unrelated to CPA or Indium.
Doroz alleges that the termination of his employment at Indium was orchestrated by Benn and Smith, who then harassed him and failed to find him comparable alternative employment. In his amended complaint, he claims these defendants were motivated by bias against his national origin, age, and perceived disability and because he had lodged a complaint with the NYSDHR.
Defendants argue that the amended complaint must be dismissed in its entirety because: (1) The ADA, ADEA, and Title VII do not provide for individual liability; and (2) plaintiff's allegations fail to state any plausible substantive claims. Doroz does not specifically respond to these legal arguments.
A. Rule 12(b)(6) Motion to Dismiss-Legal Standard
Defendants seek dismissal of the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " FED. R. CIV. P. 8(a)(2), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of his claims. See Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is plausible on its face").
When considering a motion to dismiss, the complaint is to be construed liberally, all factual allegations are to be deemed true, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers, 282 F.3d at 152. These pleading requirements apply to pro se plaintiffs as well as plaintiffs represented by counsel. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004). However, particular deference should be given to a pro se litigant's complaint when applying the above standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Finally, a district court may consider documents attached to the complaint as exhibits or incorporated by reference therein. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). "Where a document is not incorporated by reference, the court may neverless [sic] consider it where the complaint relies heavily upon its terms and effect, thereby ...