United States District Court, N.D. New York
RANDALL SCOTT TIFFANY, of Counsel: McDonough, New York, Plaintiff Pro Se.
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this action against the New York State Veterans Home ("Home"), Cynthia Fairchild, a co-worker, Deborah Murphy, identified as a supervisor, Bonnie Norton, the Director of Human Resources, Philip J. Dzwonczyk, the Medical Director and Acting Administrator, and Susan Parker, identified as Nutritional Services Administrator 2. In a Report, Recommendation, and Order, Magistrate Judge Peebles conducted an initial review of the complaint, granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP"), and recommended that Plaintiff's complaint be dismissed in part. See Dkt. No. 4 at 24.
Currently before the court is Magistrate Judge Peebles' Report, Recommendation, and Order.
Although difficult to discern the claims Plaintiff makes in his complaint, the essence appears to allege violations of Plaintiff's rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq, and under Title VII of the Civil Rights Act of 1964, as codified by 42 U.S.C. § 2000e et seq. Plaintiff's complaint asserts a retaliation claim under the FMLA, alleging he was unlawfully discharged for requesting leave pursuant to the FMLA. See Dkt. No. 4 at 9. Plaintiff also asserts that he "felt afraid and threatened, " and "felt his health and safety were at risk" in the workplace, which when construed liberally seem to be asserting a Title VII hostile work environment claim. See Dkt. No. 1 at 3, 6, 12. Plaintiff seeks relief in the form of retirement benefits earned by him during his thirty-two year employment with the Home, medical insurance coverage for life, and compensatory damages in the amount of ten million dollars.
In his initial review, Magistrate Judge Peebles concluded that the Home has sovereign immunity under the Eleventh Amendment and, therefore, all claims against it should be dismissed with prejudice. See Dkt. No. 4 at 19-20. Likewise, Magistrate Judge Peebles recommended that the Court dismiss the damage claims against the remaining Defendants with prejudice to the extent they are sued in their official capacities. Id. at 20 n.5. However, Plaintiff's retaliation claim seeking damages against Defendants Dzwonczyk, Norton, Parker, and Murphy in their individual capacities survives, as does the retaliation claim seeking prospective injunctive relief against Defendants Dzwonczyk, Norton, Parker, and Murphy in their official capacities. Id. at 17-18, 25. All of Plaintiff's claims against Defendant Fairchild were dismissed without prejudice because she does not fall under the term employer as defined by the FMLA so she cannot be held liable without more information regarding her official position at the Home. Id. at 15, 18. Magistrate Judge Peebles recommended that the Court dismiss without prejudice Plaintiff's claim that he was unlawfully denied his request for FMLA leave as to the claims against Defendants in their individual capacities. Id. at 24.
Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2)... the court shall dismiss the case at any time if the court determines that -... (B) the action... (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). Thus, although the Court has the duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution... in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, ..." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted), the court also has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. 
When reviewing a complaint, the court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, ... prepare an adequate defense, " and determine whether the doctrine of res judicata is applicable. Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977))) (other citation omitted).
A court should not dismiss a complaint if the plaintiff has stated "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). "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 at 678 (citation omitted). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare 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). Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Having reviewed the Report, Recommendation and Order and the applicable law, the Court finds that Magistrate Judge Pebbles correctly determined that the complaint should be dismissed in part and accepted for filing in part. The Home and the claims for damages against the individual Defendants in their official capacities are barred by the Eleventh Amendment. Further, Magistrate Judge Peebles correctly determined that the FMLA claim against Defendant Fairchild should be dismissed without prejudice because Plaintiff has failed to plausibly allege that she is an "employer." Moreover, the Court agrees with Magistrate Judge Peebles that Plaintiff has plausibly alleged facts suggesting that Defendants Dzwonczyk, Norton, Parker and Murphy all qualify as employers under the FMLA in that they have the authority either to hire, fire, supervise, control employee work schedules or conditions of employment, determine pay rates and methods, or maintain employment records. See Housel, 6 F.Supp. 3d at 315.
Additionally, when liberally construed, it appears Plaintiff is attempting to allege a hostile work environment as he claims he "felt afraid and threatened, " and he "felt his health and safety were at risk." See Dkt. No. 1 at 6, 12.
Under Title VII, in order to raise a hostile work environment claim, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive - that is, ... creates an environment that a reasonable person would find hostile or abusive'; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive'; and (3) creates such an environment because of the plaintiff's sex[, ]'" or because of any other characteristic protected by Title VII. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quotation omitted); Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) (indicating that any characteristic protected by Title VII is sufficient to satisfy the third element). In the context of a hostile work environment, courts must also "consider the frequency and severity of the discriminatory conduct, whether the conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff's work performance." Salmon v. Pliant, 965 F.Supp.2d 302, 305 (W.D.N.Y. 2013) (citations omitted). Furthermore, "a few isolated incidents of boorish or offensive use of language' are generally insufficient to establish a hostile work environment." Id. (citations omitted).
In the present matter, the Court finds that Plaintiff has failed to plausibly allege a Title VII hostile work environment. On his form complaint, Plaintiff checked the box to indicate that he was bringing this matter pursuant to Title VII. See Dkt. No. 1 at 3. Thereafter, however, Plaintiff does not allege any facts that indicate that the alleged hostile work ...