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Al-Qadaffi v. Services for Underserved (SUS)

United States District Court, S.D. New York

January 30, 2015


Wajid Al-Qadaffi, Plaintiff, Pro se, Bronx, N.Y. USA.

For Services For The Underserved(Sus), Defendant: Mary Ellen Donnelly, Robert Mossman Tucker, Putney Twombly Hall & Hirson LLP, New York, N.Y. USA.

For Department of Health Office of Mental Hygiene, Defendant: Benjamin Eldridge Stockman, Corporation Counsel Office City of New York, New York, N.Y. USA; Tanya N. Blocker, NYC Law Department, New York, N.Y. USA.

For Carol Kuzmyak, Director of Human Records SUS, Priscilla Fuller, Sr. V.P., Corporate Compliance Officer SUS, Judith Jackson, Chief of Staff, SUS, Don Hofford, Sr. V.P., Behavior Health Programs, SUS Wellness Center, Marie Sabatino, Defendants: Robert Mossman Tucker, Putney, Twombly, Hall & Hirson LLP, New York, N.Y. USA.


WILLIAM H. PAULEY III, United States District Judge.

Plaintiff Wajid Kahlil Al-Qadaffi, pro se, alleges various employment discrimination and federal civil rights claims against Services for the Underserved (" SUS"), five individuals affiliated with SUS--Carol Kuzmyak, Priscilla Fuller, Judith Jackson, Don Holford, and Marie Sabatino--(collectively " SUS Defendants") and the New York City Department of Health and Mental Hygiene (" DOHMH"). Defendants move to dismiss the Amended Complaint for failure to state a claim. For the reasons that follow, Defendants' motion to dismiss is granted.


Al-Qadaffi is a 57 year-old black man who suffers from depression and substance abuse issues. He holds a bachelor's degree and is a licensed private investigator. In February 2012, Al-Qadaffi enrolled in a mental health clinic run by Services for the Underserved (" SUS") in Brooklyn to address his chronic depression. (Compl., No. 6-1, at 9.)[1] SUS is a private non-profit organization that provides education, training, and rehabilitation services to disabled New Yorkers. Al-Qadaffi's claims relate to his experiences with SUS's employment services and " clubhouse" programs.

I. Employment Services Program

In April 2012, SUS admitted Al-Qadaffi to its Employment Services Program which places participants in job training programs or permanent employment. In May 2012, frustrated by a lack of job interviews, Al-Qadaffi complained that SUS was not placing him due to his age and mental health disability. (Compl., No. 6-1, at 10.) He informed his SUS job coach he planned to file an EEOC complaint.

The following day, SUS offered Al-Qadaffi a part-time, paid " training" position as a front desk clerk at one of its facilities. (Compl., No. 6-1, at 10.) On June 6, 2012 he began his training. But Al-Qaddafi alleges that a female administrative assistant, Ms. Carabello, who was also his supervisor, " began almost immediately to harass" him. Specifically, she refused to respond to his questions, refused to permit him to take breaks, and criticized him in the presence of others. (Compl., No. 6, at 7.) Al-Qadaffi maintains that the SUS employees at the facility were predominantly female.

Later in June, Al-Qadaffi reported via email to Fuller about his experiences with the " discriminatory culture" he believed permeated SUS. (Compl., No. 6-1, at 11.) He complained that he was being treated differently because of his race, gender, and mental disability. (Compl., No. 6-1, at 25.) In July 2012, Kuzmyak (Vice President of Human Resources at SUS), Holford (Senior Vice President of Behavioral Health Programs at SUS), and other SUS personnel, met with Al-Qadaffi to discuss his concerns. Kuzymak encouraged Al-Qadaffi to apply for vacant positions and assured him that SUS personnel would not retaliate against him because of his complaints. (Compl., No. 6-1, at 11.)

Over the next three months, Al-Qadaffi applied for approximately twenty positions but received no responses. He also expressed interest in two positions at SUS's Clubhouse but was informed by Sabatino that he was not eligible because Clubhouse members are not permitted to work there. (Compl., No. 6, at 8.)

In September 2012, SUS terminated Al-Qadaffi's participation in its Employment Services program. Al-Qadaffi alleges that the reasons advanced by Sabatino for his termination--missing three days of work without calling in and making condescending comments to other staff members--were pretexts. (Compl., No. 6-1, at 27.) He complained to Fuller by email about Sabatino's " harassment and retaliation, " and attributed much of the impetus to mental health issues. (Compl., No. 6-1, at 28.) By letter, SUS informed Al-Qadaffi that his Employment Services program " case was being closed" but encouraged him to " continue to work with the SUS Brooklyn Clubhouse to address some ... skill-building needs." (Compl., No. 6-1, at 29.)

In considering this motion to dismiss, it is appropriate to take judicial notice of three New York State Division of Human Rights' (" NYSDHR") Determinations and Orders after Investigation. (See Tucker Deck Ex. E-G.) First, on December 27, 2012, Al-Qadaffi filed a complaint with the New York State Division of Human Rights (" SDHR"), which was dual-filed with the United States Equal Employment Opportunity Commission (" EEOC"), alleging that SUS discriminated against him on the basis of age, creed, disability, race/color, and sex and retaliated against him for opposing discriminatory practices. On February 20, 2013, Al-Qadaffi filed a complaint with the SDHR, alleging that SUS retaliated against him because of the first complaint he filed. And on February 28, 2013, Al-Qadaffi filed a third complaint with the SDHR, alleging SUS retaliated against him because of the first two administrative complaints. All three complaints resulted in " no probable cause" determinations--on June 19, 2013, August 16, 2013, and August 26, 2013, respectively--finding SUS had legitimate business reasons for terminating services to Al-Qadaffi as he continued to violate its rules.

II. Clubhouse Program

In February 2012, Al-Qadaffi joined the SUS Brooklyn Clubhouse (the " Clubhouse"). (Compl., No. 6-1, at 9.) The Clubhouse is a " psychosocial clubhouse" offering a variety of services including vocational, job training, and placement assistance to individuals with mental illness or mental health issues coupled with substance abuse problems. (Compl., No. 6-1, at 9-10; see also Tucker Decl. Ex. E.)

In September 2012, Holford informed Clubhouse members, including Al-Qadaffi, that the Clubhouse would be seeking accreditation by the International Center for Clubhouse Development (" ICCD"). Al-Qadaffi alleges that accreditation would require changes in Clubhouse programs in order to continue to receive funding from DOHMH. Because Al-Qadaffi did not want to see the Clubhouse programs changed, he opposed accreditation. According to Al-Qadaffi, SUS sought to silence his opposition. (Compl., No. 6-2, at 3.)

In December 2012, Holford informed DOHMH Deputy Commissioner Adam Karpati that SUS planned to terminate Al-Qadaffi from the Clubhouse program because of his opposition to accreditation. Al-Qadaffi alleges that Karpati authorized this termination. (Compl., No. 6-1, at 18). Undeterred, Al-Qadaffi continued his Clubhouse participation and anti-accreditation efforts. In January 2013, Al-Qadaffi informed ICCD, the accrediting agency, that the Clubhouse was not in compliance with accreditation requirements and urged ICCD to scrutinize the Clubhouse's application. (Compl., No. 6-2, at 1.)

In February 2013, Holford wrote to Al-Qadaffi and explained to him how his persistent attempts to discuss his administrative complaints with other Clubhouse participants and his continuing anti-accreditation efforts interfered with Clubhouse activities. Holford also reported to Al-Qadaffi that other Clubhouse members had complained about these disruptions. (Compl., No. 6-2, at 4.) Holford asked Al-Qadaffi to refrain from discussing these matters except during the lunch hour " unless other [Clubhouse] members indicate[d] that they prefer not to hear about them." (Compl., No. 6-2, at 4.) When SUS asked Al-Qadaffi not to attend Clubhouse activities until his next scheduled meeting, Al-Qadaffi responded that he intended to participate and that " 911 might need to be involved" if SUS interfered. (Compl., No. 6-2, at 4.)

In February 2013, Holford and Sabatino met with Al-Qadaffi to discuss how he might be able to " reengage" with the Clubhouse on certain conditions; At the meeting, Al-Qadaffi informed them that " Muhammad Speaks, " a publication with which Al-Qadaffi was involved, was preparing to publish an exposé on mental health services in New York. Al-Qadaffi offered them the opportunity to comment for publication in the article. They declined. According to Al-Qadaffi, Holford instructed the plaintiff that he " could not return indefinitely [to the Clubhouse] because of the [Muhammad Speaks] article." (Compl., No. 6-1, at 15.)

Ten days later, SUS terminated Al-Qadaffi's participation in Clubhouse activities. (Compl., No. 6-2, at 7; Compl., No. 6-1, at 15.) By letter SUS informed Al-Qadaffi that it was terminating him because of " repeated complaints" about his disruptive behavior; violations of Clubhouse rules and policies; confrontations with staff; and his " ongoing refusal to support efforts of the program to obtain accreditation by the ICCD." (Compl., No. 6-2, at 7.)

In November 2013, Al-Qadaffi filed this action, alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII"), the Age Discrimination in Employment Act of 1967 (" ADEA"), the Americans With Disabilities Act (" ADA"), the New York State Human Rights Law (" NYSHRL"), the New York City Human Rights Law (" NYCHRL"), and violations of his federal civil rights. Chief Judge Preska dismissed the original complaint sua sponte and ordered Al-Qadaffi to submit an amended complaint. (Order to Amend, ECF No. 5.)

Al-Qadaffi filed an Amended Complaint that included various correspondence as exhibits. Defendants move to dismiss the Amended Complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to state a claim.


I. Motion to Dismiss Standard

" 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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In ruling on a motion to dismiss, a court " is required to proceed 'on the assumption that all the [factual] allegations in the complaint are true.'" Anderson News. L.L.C. v. Am. Media. Inc., 680 F.3d 162, 185 (2d Cir. 2012) (alteration in original) (quoting Twombly, 550 U.S. at 555). The court must " construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff." Anderson News, 680 F.3d at 185. Nevertheless, this Court need not accept as true " conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).

On a Rule 12(b)(6) motion, a court may consider " facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint--Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The court may also " 'consider factual allegations made by a pro se party in his papers opposing the motion, ' to determine if the pro se party can sufficiently set forth a claim for relief." Powell v. Corr. Med. Care, Inc., No. 13CV6842 (WHP), 2014 WL 4229980, at *2 (S.D.N.Y. Aug. 15, 2014) (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)); see also Nielsen v. Rabin, 746 F.3d 58, 61 (2d Cir. 2014).

A pro se litigant's submissions are held to " less stringent standards than [those] drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Courts liberally construe pro se pleadings " to raise the strongest arguments they suggest. Nonetheless, a pro se complaint must state a plausible claim for relief." Nielsen, 746 F.3d at 63 (citation omitted).

II. State Law Claims

Al-Qadaffi's NYSHRL and NYCHRL claims are barred by the respective election of remedies provisions. See N.Y. Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502 (2013). In opposition to this motion, demonstrating an impressive command of the law, Al-Qadaffi concedes his state law claims are barred. (Pl. Opp. 20.)

III. Title VII, ADA, and ADEA Discrimination Claims

Al-Qadaffi alleges that the SUS Defendants discriminated against him on the basis of his age, race, sex, and disability in violation of Title VII, the ADA, and the ADEA. Chief Judge Preska previously dismissed Al-Qadaffi's federal discrimination claims against the individual defendants, without leave to replead. (Order to Amend, ECF No. 5, at 7 (collecting cases).) Because individuals are not subject to liability under these federal statutes, Al-Qadaffi's Title VII, ADEA, and ADA against defendants Kuzmyak, Fuller, Jackson, Holford, and Sabatino are dismissed.[2]

Recently, the Second Circuit clarified uncertainty on the standard to be applied to employment discrimination complaints: " while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, . .., it must at a minimum assert nonconclusory factual matter sufficient to " 'nudge[] [its] claims' ... 'across the line from conceivable to plausible.'" E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 253-54 (2d Cir. 2014) (alterations in original and citations omitted).

1. Discrimination Claims

Turning to Al-Qadaffi's discrimination claims, a prima facie case of discrimination requires a plaintiff to assert that: (1) he was a member of a protected class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the circumstances of the adverse action give rise to an inference of discrimination based on his membership in the protected class. Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014).

Here, Al-Qadaffi asserts that SUS, as both an employer and employment agency, failed to hire him or refer him for placement with other employers. Al-Qadaffi alleges that his age and disability were factors considered by SUS in its placement efforts; that SUS did not hire him for the numerous jobs he applied to and hired people with " lesser education" instead; that only one hiree out of 69 hirees was in Al-Qadaffi's 55-years-and-older age group; that SUS hired someone less qualified than Al-Qadaffi for a Quality Assurance Investigator position; and that no person has ever been terminated from the Employment Services program " other than for violence." (Pl. Opp. 22 (citing to same allegations in Amended Complaint).) Al-Qadaffi also takes issue with SUS's " policy" that Clubhouse members cannot work at the Clubhouse.

While Al-Qadaffi refers to his gender, race, and religion, his factual allegations focus only on his age and disability. He fails to plead sufficient allegations of fact--e.g., the nature of the positions, the applicants who filled them, etc.--for the court to draw a plausible inference of discrimination under either the ADEA or the ADA. For example, Al-Qadaffi alleges that only one individual over age 55 was hired for any position to which Al-Qadaffi applied. But that allegation fails to account for those individuals between the ages of 40 and 54 who are protected under the ADEA. Therefore, absent any other factual allegations, Al-Qadaffi fails to state a claim for age discrimination. Cf Bohnet v. Valley Stream Union Free Sch. Dist. 13, 30 F.Supp.3d 174, 2014 WL 3400462, at *4-5 (E.D.N.Y. 2014).

In a similar vein, Al-Qadaffi's allegations concerning disability discrimination are insufficient to state a claim under the ADA. SUS accepted Al-Qadaffi into its programs because of his disability. It is implausible to allege that SUS terminated him from those programs because of that same disability.

Finally, Al-Qadaffi's challenge to the SUS policy prohibiting employment of Clubhouse members at the Clubhouse fails to plead a claim of disability discrimination. The Clubhouse's programs are designed specifically for individuals with mental illness and substance abuse-related disabilities. It is entirely appropriate for SUS to insist that its client population be supervised and treated by individuals outside of the client population.

2. Retaliation Claims

Turning to Al-Qadaffi's retaliation claims, to allege a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007). " Protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination. Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir. 2000). " To establish that his activity is protected under Title VII, a plaintiff need not prove the merit of his underlying discrimination complaint, but only that [he] was acting under a good faith, reasonable belief that a violation existed." Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 2000) (citations omitted). Title VII's retaliation provision protects " informal protests of discriminatory employment practices, including making complaints to management [.]" Sumner, 899 F.2d at 209. While the complaint must allege retaliation as one cause of the adverse action, it need not be the only cause, Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003); see, e.g., McKenzie v. Gibson, No. 07 CIV. 6714 (WHP), 2008 WL 3914837, at *3 (S.D.N.Y. Aug. 25, 2008).

Al-Qadaffi worked 12 hours a week in SUS's employment services division as a front desk clerk. He alleges the following " protected activity" in support of his retaliation claims: (i) his June 28, 2012 email to Fuller complaining of a discriminatory culture at SUS; and (ii) the July 25, 2012 meeting held ostensibly to address the concerns raised in the email and other issues of concern to Al-Qadaffi. (See Compl., No. 6-1, at 11, 25-26). Al-Qadaffi's June 28, 2012 email does not report to SUS anything more specific than references to his race and gender, and his belief that SUS suffers from " a systemic and cultural bias." (Compl., No. 6-1, at 25.) Al-Qadaffi reiterated this belief at the July 25, 2012 meeting, where he also complained of being discriminated against on the basis of his mental health disability. (Compl., No. 6-1, at 26.) He highlights his complaints about his mental health disability as the impetus for SUS's retaliation. But these vague and conclusory assertions are not sufficient to make his claim plausible when SUS's mission is to treat Al-Qadaffi because of his disability. And in the correspondence he refers to in his Amended Complaint, it is apparent that SUS continued to provide him with support and treatment at the Clubhouse until early February 2013.

Al-QadafFi's other retaliation allegations also fail to state a plausible claim. When he filed his SDHR complaints, SUS had already terminated Al-Qadaffi from its employment program. And SUS's termination of Al-Qadaffi's Clubhouse services did not take place in any employment context.

IV. Federal Civil Rights Claims

Al-Qadaffi alleges certain " constitutional" violations. Reading those allegations " liberally . . . to raise the strongest arguments they suggest, " this Court construes Al-Qadaffi's constitutional claim as arising under the First Amendment. Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007). He claims Defendants violated his right to free speech by terminating his participation in the Clubhouse because he opposed the Clubhouse's efforts to obtain ICCD accreditation.

A. Claims against SUS and Individual Defendants

" Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012). Here, SUS is a private non-profit organization and Al-Qadaffi must allege sufficient facts to show state action existed to sustain his § 1983 claims.

As the Second Circuit has observed, Supreme Court jurisprudence on state action has " not been a model of consistency, " and we therefore have " no single test to identify state actions and state actors." Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (citation omitted). But the law is clear that " a private entity does not become a state actor for purposes of § 1983 merely on the basis of 'the private entity's creation, funding, licensing, or regulation by the government.'" Fabrikant, 691 F.3d at 207 (quoting Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)). Here, while Al-Qadaffi alleges that DOHMH controls SUS funding, that is insufficient to establish state action. Cf., e.g., Sanders v. Grenadier Realty. Inc., No. 08 CIV. 3920 (WHP), 2009 WL 1270226, at *2-3 (S.D.N.Y. May 6, 2009), aff'd, 367 F.App'x 173 (2d Cir. 2010).

In order to establish a First Amendment claim against a private entity based on the entity's relationship to the state, " there must be such a close nexus between the [s]tate and the challenged action" that the state is " responsible for the specific conduct of which the plaintiff complains." Cranley, 318 F.3d at 112 (internal quotation marks omitted)). " A nexus of state action' exists between a private entity and the state when the state exercises coercive power, is entwined in the management or control of the private actor, or provides the private actor with significant encouragement, either overt or covert, or when the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies." Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 187 (2d Cir. 2005) (internal quotation marks omitted).

DOHMH's alleged involvement in SUS's decision to terminate Clubhouse services to Al-Qadaffi, is insufficient to establish state action. Chief Judge Preska previously dismissed Al-Qadaffi's Section 1983 claim against all defendants because his allegation that DOHMH " participated directly in the violation of [Al-Qadaffi's] constitutional rights" by " reviewing and approving" the decision to discharge Al-Qadaffi failed to allege any cognizable state action. (Order to Amend, ECF No. 5, at 4.) In his Amended Complaint, Al-Qadaffi alleges that Holford " contacted" Karpati, the Deputy Commissioner of DOHMH, and " informed" him that Al-Qadaffi was " actively contesting" the Clubhouse's accreditation. (Compl., No. 6-1, at 18.) Al-Qadaffi alleges that " Holford suggested terminating plaintiff from [the Clubhouse] and Karpati advised that was the best remedy which his office would sanction. . . ." (18 of 37.)[3] This does not meet the state action threshold. And Al-Qadaffi's allegation about the " oppressive and coercive" nature of the exchange is wholly conclusory. (Compl., No. 6-1, at 19.) Overall, the Amended Complaint does not allege that DOHMH's participation in Al-Qadaffi's discharge from the Clubhouse involved compulsion or significant encouragement to transform the SUS Defendants' conduct into conduct by the State. Accordingly, Al-Qadaffi's First Amendment claim is dismissed as to all SUS Defendants. This Court has considered Al-Qadaffi's remaining allegations of constitutional violations and finds them to be without merit.

B. Claim against DOHMH

It is well settled that municipal agencies of the City of New York are not suable entities, and therefore Al-Qadaffi's claims against the DOHMH are dismissed. See Suarez v. New York City Dep't of Human Res. Admin., No. 09 CIV. 8417 (WHP), 2011 WL 1405041, at *3 (S.D.N.Y. Mar. 24, 2011) (citing Flemming v. New York City, No. 02 Civ. 4112 (AKH), 2003 WL 296921, at *2 (S.D.N.Y. Feb. 11, 2003)).

To the extent Al-Qadaffi asserts his First Amendment claim against the City of New York, it well settled that a municipality may only be held liable under § 1983 when there is a deprivation of rights pursuant to a " policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Al-Qadaffi fails to allege that any policy or custom of the City of New York that denied his Constitutional rights. Accordingly, Al-Qadaffi's federal civil rights claim against the City of New York is dismissed.

V. Leave to Amend

" A pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks omitted). Al-Qadaffi has already had one chance to amend his Complaint, and there is still no indication that a valid claim might be stated if given a second chance. The Defendants went to great lengths in their motion papers to construe Al-Qadaffi's claims liberally, and so did this Court. Although this Court sympathizes with Al-Qadaffi, amending his pleading would be futile.


For the foregoing reasons, the Defendants' motion to dismiss Plaintiff Wajid Kahlil Al-Qadaffi's Amended Complaint is granted. The Clerk of the Court is directed to terminate all pending motions and mark this case as closed.

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