United States District Court, S.D. New York
REPORT AND RECOMMENDATION
FRANK MAAS, Magistrate Judge.
Pro se plaintiff Solo Obi Omor ("Omor") brings this action against Sera Security Services, LLC ("Sera"), alleging that Sera refused to hire him because of his age, sex, religion, race, national origin and disability. Omor seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et esq. ("Title VII"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et esq. ("ADEA"); the Americans with Disabilities Act, 42 U.S.C. §§ 12112, et esq. ("ADA"); the New York State Human Rights Law, N.Y. Exec. Law § 290, et esq. ("NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101, et esq. ("NYCHRL").
Sera has now moved to dismiss Omor's Second Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that Omor (a) failed to exhaust his administrative remedies, (b) failed to allege facts sufficient to support an inference that Sera's decision not to hire him was because of his membership in a protected group, and (c) improperly named an individual defendant. (See Defendant's Motion to Dismiss the Second Amended Complaint (ECF No. 25) ("Def.'s Mot."); Defendant's Memorandum of Law in Support of Motion to Dismiss the Second Amended Complaint (ECF No. 28) ("Def.'s Mem.")). Sera further requests that the Court not exercise supplemental jurisdiction over Omor's state and local law claims in the event that his federal claims are dismissed. For the reasons set forth below, Sera's motion should be granted in all respects.
A. Relevant Facts
The following facts are derived from Omor's Equal Employment Opportunity Commission ("EEOC") charge and his Second Amended Complaint. Those facts are presented in the light most favorable to Omor, and for present purposes are assumed to be true.
Omor was born on October 4, 1949, making him sixty-five years old when he commenced this action. (Compl. at 1; Ex. A). He was born in the Edo State of Southern Nigeria, and became a United States citizen on August 5, 1986, at which time he shortened his name from Solomon Obi Omorotionmwan to Solo Obi Omor. (Compl. at 2-3). Omor is Black and a practicing Christian, and he speaks English with a "funny accent." (Id. at 4-5). He holds a number of college degrees and is licensed by New York State to work as a security guard. (Id. at 1).
On November 27, 2013, Omor attended a recruitment event hosted by Workforce 1 for individuals licensed to work as security guards. Workforce 1 referred Omor to Sera, where Omor applied for a security guard position. (Id. at 2; Ex. A). On December 2, 2013, Shaquan Londen ("Londen"), Sera's Personnel Director, interviewed Omor, who believed that the interview "went very well." (Ex. A). Londen indicated to Omor that "she would see when [he] could be placed on the schedule, " and that, in the meantime, Omor "should go home and wait for a call." (Id.). Omor followed up with Londen several times, and each time she responded in a similar manner. (Id.). Ultimately, however, Sera did not select Omor for a position. (Id.). Omor contends that Sera's decision not to hire him was discriminatory because Sera hired "most" of the other applicants who had applied at the same time, "all of whom were substantially younger and none of whom were Nigerian." (Id.; see also Compl. at 2).
B. Procedural History
On December 19, 2013, Omor dual-filed a charge of discrimination against Sera with the federal EEOC and the New York State Division of Human Rights, in which he alleged discrimination on the basis of his race, age, and national origin. (Ex. A). On March 31, 2014, the EEOC issued Omor a "right to sue" letter. (Ex. B). On April 2, 2014, Omor filed his original complaint in this District, asserting claims under Title VII, the ADEA and ADA, and the United States Constitution. (Ex. C). On May 28, 2014, however, Judge Preska entered a sua sponte order dismissing that complaint for failure "to state a plausible claim of discrimination." (Ex. D). As Judge Preska explained, the complaint "fail[ed] to allege any facts sufficient to support any claim that Defendants' conduct was based upon his race, gender, religion, or national origin." (Id. at 3). Judge Preska nevertheless granted Omor leave to amend his complaint. (Id. at 4).
On June 17, 2014, Omor filed an amended complaint alleging violations of Title VII, and the ADEA, NYSHRL and NYCHRL, adding an allegation that his accent constituted a disability. (Ex. E). Subsequently, on October 7, 2014, during a pre-motion conference before Your Honor, Omor again was granted leave to amend his complaint. (See ECF No. 18). Thereafter, on October 14, 2014, Omor filed his Second Amended Complaint, largely repeating his prior claims and allegations.
II. Standard of Review
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's claims for relief. Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 511 (S.D.N.Y. 2010) (Lynch, D.J.). In deciding the motion, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). The complaint need not contain "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Nonetheless, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555-56).
To survive a Rule 12(b)(6) motion, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely "conceivable to plausible" requires a court to "draw on its judicial experience and common sense." Id. at 679-80. In making its assessment, a court may consider, in addition to the plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached to the complaint or incorporated by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). When a plaintiff is proceeding pro se, a court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. See Crum v. Dodrill, 562 F.Supp.2d 366, 373 n.13 (N.D.N.Y. 2008) (citing Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)). Furthermore, a court may take judicial notice of ...