United States District Court, E.D. New York
Kevin Anderson, Plaintiff, Pro se, Brooklyn, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff Kevin Anderson, proceeding pro se, commenced the above-captioned action on November 18, 2014, against Defendant Royal Realty Corporation, doing business as One Bryant Park. Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq . (" Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § § 621-34 (" ADEA") and the Americans with Disabilities Act of 1990, 42 U.S.C. § § 12112 et seq . (" ADA"). The Court grants Plaintiff's request to proceed in forma pauperis (" IFP") pursuant to 28 U.S.C. § 1915. For the reasons stated below, Plaintiff is ordered to show cause by written affidavit within 30 days from the date of filing of this Order why the Court should not dismiss his ADA and ADEA claims and his Title VII claim alleging discrimination on the basis of his gender. Plaintiff's Title VII claim alleging discrimination on the basis of race may proceed.
The following facts are taken from the Complaint and the attached Equal Employment Opportunity Commission (" EEOC") Notice of Right to Sue (" Right-to-Sue letter") and Intake Questionnaire (" EEOC Charge"). Plaintiff was employed as a porter by Defendant, a cleaning company, from July 2000 until December 27, 2012. (Docket Entry No. 1 at 8.) Plaintiff claims that he was subject to discriminatory treatment, including failure to promote, retaliation, and termination, beginning in 2010. (Id. at 3.) Plaintiff was terminated on December 27, 2012. (Id. at 9.)
On March 12, 2013, Plaintiff filed an EEOC Charge against Defendant alleging race discrimination and retaliation. (Id. at 9.) Plaintiff alleged that he was the " only African-American on this job that such extreme action was take[n] that lead to my termination." (Id.) While the EEOC Charge is not clear as to why Plaintiff was terminated, Plaintiff alleges that other employees of other races were not terminated for " numerous incidents, " including one " incident that was caught on tape." (Id.) On October 31, 2014, the EEOC issued Plaintiff a Right-to-Sue letter upon his request because more than 180 days had passed since the filing of the charge and no action had been taken by the EEOC. (Id. at 6.)
On November 18, 2014, Plaintiff initiated this action. The precise nature of Plaintiff's discrimination claims is unclear. Plaintiff filed his Complaint using a complaint form, and inconsistently refers to the basis for this action. For the purposes of this Order, the Court presumes that Plaintiff brings this action pursuant to Title VII, the ADA and the ADEA, because Plaintiff refers to each of the three statutes in the narrative portion of his Complaint. (Id. at 4.) Plaintiff complains that Defendant terminated him, failed to promote him and retaliated against him. (Id. at 3.) He alleges that he " was discriminated against because of [his] race." (Id. at 4.) While Plaintiff does not provide any facts in support of any other basis for discrimination, he completes portions of paragraph seven of the complaint form identifying his race (" African American"), color (" Black"), gender (" Male"), national origin (" U.S.A.") and age (" born in 1962 . . . more than 40 years old."). (Id. at 3.)
a. Standard of review
A complaint must plead " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet is " inapplicable to legal conclusions." Id. In reviewing a pro se complaint, the court must be mindful that the Plaintiff's pleadings should be held " to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (internal quotation marks omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court " remain[s] obligated to construe a pro se complaint liberally"). If a liberal reading of the complaint " gives any indication that a valid claim might be stated, " the Court must grant leave to amend the Complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action, if the Court determines it " (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b. Plaintiff fails to state an ADA or ADEA claim
Plaintiff fails to state a claim for age discrimination or discrimination based upon disability for two reasons. First, Plaintiff has not administratively exhausted either claim, and second, he fails to allege sufficient facts to support these claims.
i. Failure to Exhaust
Under both the ADA and the ADEA, a claimant may bring suit in federal court only if he has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001) (" Exhaustion of administrative remedies through the EEOC is 'an essential element' of the Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal court."); Stalter v. Board of Co-op. Educ. Servs. of Rockland Cnty., 235 F.Supp.2d 323, 332 (S.D.N.Y. 2002) (" Before bringing a claim under the ADA, a plaintiff is required to file a timely EEOC charge." (citing Harris v. City of New York, 186 F.3d 243, 247 (2d.Cir. 1999))). However, " claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are 'reasonably related' to those that were filed with the agency." Legnani, 274 F.3d at 686 (quoting Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999)). " Reasonably related" claims are recognized in three situations: (1) the alleged discriminatory conduct " would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; '" (2) the claim is one of " retaliation by an employer against an employee for filing ...