United States District Court, S.D. New York
SAMMY E. MCCRAY, Plaintiff,
PROJECT RENEWAL, INC., Defendant.
OPINION & ORDER
VALERIE CAPRONI United States District Judge.
employment discrimination case, Plaintiff Sammy McCray,
proceeding pro se, sued his former employer,
Defendant Project Renewal, Inc. (“Project
Renewal”), for race discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000 et seq., and New
York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 290 et seq., and disability
discrimination in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12112 et seq. Defendant moves to dismiss the
Amended Complaint for lack of subject matter jurisdiction and
failure to state a claim pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). For the following reasons,
the Motion to Dismiss is GRANTED.
is an African-American male who was employed as a non-staff
kitchen cook at Project Renewal. At around the time that his
supervisor was considering whom to promote to a staff
position, McCray was transferred to Project Renewal's
facility on Bronx Boulevard. Amended Complaint (“Am.
Compl.”), at 3, Dkt. 21. McCray's co-worker informed
McCray that another colleague did not want McCray working at
the Bronx Boulevard site. Am. Compl. at 5. The clients at
Project Renewal began to “harass [McCray] day and
night” including by using racial epithets. Am. Compl.
at 5, 6, 12. Although McCray reported the incidents to
his supervisor, the supervisor “said don't worry
about it and he never did anything to help.” Am. Compl.
at 5. McCray alleges that several clients use drugs and
alcohol on Project Renewal's premises, that McCray is
“not suppose[d] to be around drug use, ” and that
“it was discriminatory because it started affecting
[his] health.” Am. Compl. at 6.
requested to “go downtown to speak on [his own]
beha[lf], ” but his request was denied, and his
supervisors “did nothing to help [him] or stop the
harassment.” Am. Compl. at 6. McCray alleges that
Project Renewal “didn't care about [his] safety all
they cared about was [him] cooking the food.” Am.
Compl. at 5. McCray asserts that he “feel[s] like they
were trying to push [him] out the job.” Letter re:
Opposition to the Motion to Dismiss (“Opp.”), at
2, Dkt. 27. McCray alleges that Project Renewal's most
recent act of discrimination against him occurred on January
9, 2015. Am. Compl. at 3.
February 2015, McCray filed a complaint
(“Administrative Complaint”) with the New York
State Division of Human Rights (“NYSDHR”) against
Project Renewal, claiming race discrimination in violation of
New York Human Rights Law and Title VII. Am. Compl. at 8. The
NYSDHR Complaint was dual-filed with the U.S. Equal
Employment Opportunity Commission (“EEOC”). Am.
Compl. at 9. In the Administrative Complaint, McCray
“charged [Project Renewal] with an unlawful
discriminatory practice relating to employment because of
race/color” in violation of the NYSHRL and Title VII.
Am. Compl. at 8. McCray alleged that Project Renewal
“harassed or intimidated [him], ” “denied
[him] a promotion or pay raise, ” and “paid [him]
a lower salary that other workers in [his] same title.”
Am. Compl. at 13. After conducting an investigation into the
case, the NYSDHR issued a “no probable cause”
finding, concluding that there was not “sufficient
evidence to establish an inference of discrimination based on
race/color.” Affidavit of Jason A. Zoldessy, Esq. in
Support of Defendant's Motion to Dismiss Plaintiff's
Amended Complaint (“Zoldessy Aff.”), Ex. D
(“NYSDHR Order”), at 1-2, Dkt. 24. The NYSHDR
dismissed McCray's complaint. NYSHDR Order at 2. The EEOC
“adopted the findings” of the NYSDHR, dismissed
McCray's case, and issued a notice to sue. Am. Compl. at
7 (“EEOC Notice”).
then filed a complaint in federal court, alleging employment
discrimination in violation of the ADA. Complaint, Dkt. 2.
McCray subsequently amended his complaint to add claims of
employment discrimination in violation of Title VII and
NYSHRL. Am. Compl. McCray alleges that Project Renewal failed
to promote him, failed to accommodate his disability, and
imposed unequal terms and conditions of his employment. Am.
Compl. at 2. Although the employment-discrimination complaint
form queried the protected class that was the basis of his
discrimination claim, and listed race, color, and disability
as various options to select, McCray did not select any
protected class on the form complaint. Am. Compl. at 3. In
support of his claims, McCray attached the Administrative
Complaint to his federal complaint. Am. Compl. at 3, 6-13.
Nowhere does Plaintiff allege the way in which he is
moves to dismiss the Amended Complaint for lack of subject
matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Defendant's Motion to Dismiss Plaintiff's Amended
Complaint (“Motion to Dismiss”), Dkt. 22.
McCray's only argument in opposing the Motion to Dismiss
is to indicate that he wants a jury trial so he can explain
his case. Opp. at 1.
general, when deciding a motion to dismiss, a district court
may not consider materials extrinsic to the pleadings; if any
extrinsic material is considered, then the motion to dismiss
is converted into a motion for summary judgment. Fed.R.Civ.P.
12(d). The district court, however, may consider any
documents attached to or incorporated by reference into the
complaint without converting the motion to dismiss into one
for summary judgment. ATSI Commc'ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In addition,
“[e]ven where a document is not incorporated by
reference, the court may nevertheless consider it where the
complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (internal quotation marks and citation omitted).
Because McCray attached the Administrative Complaint and the
EEOC decision to the Amended Complaint, the Court may
consider those documents in evaluating the Motion to Dismiss.
is well established that the submissions of a pro se
litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (emphasis in original) (internal quotation
marks and citation omitted). Courts are required to give
pro se submissions “special solicitude,
” Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.
1994), because “[i]mplicit in the right of
self-representation is an obligation on the part of the court
to make reasonable allowances to protect pro se
litigants from inadvertent forfeiture of important rights
because of their lack of legal training.”
Triestman, 470 F.3d at 475 (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Because McCray is
a pro se plaintiff, the Court construes McCray's
pleadings liberally and draws every inference in his favor.
Nevertheless, for the reasons stated herein, the Court grants
the Motion to Dismiss.
of Administrative Remedies
filing a Title VII or ADA suit in federal court, a plaintiff
must file a timely charge of discrimination with the EEOC. 42
U.S.C. §§ 2000e-5(e), 12117(a); Riddle v.
Citigroup, 449 F. App'x 66, 69 (2d Cir. 2011);
see also Tewksbury v. Ottaway Newspapers, 192 F.3d
322, 325 (2d Cir. 1999). To be timely, the EEOC charge must
be filed within 180 days of the alleged discriminatory act or
within 300 days if the state has local administrative
mechanisms for the redress of discrimination claims.
Tewksbury, 192 F.3d at 325 (citing 42 U.S.C. §
2000e-5(e)(1)); see also Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 78-79 (2d Cir. 2015). Because
New York has an agency to address employment discrimination
claims (NYSHDR), and McCray filed his EEOC charge within 300
days of the alleged discriminatory act, his EEOC charge was
timely. See Greene v. Trustees of Columbia Univ.,
234 F.Supp.2d 368, 376 (S.D.N.Y. 2002); see also
Tewksbury, 192 F.3d at 325.
plaintiff may raise a claim in district court that was not
included in the EEOC complaint if the federal claim is
“reasonably related” to the claim filed with the
EEOC. Littlejohn v. City of N.Y., 795 F.3d 297, 322
(2d Cir. 2015). A claim is considered reasonably related
“if the conduct complained of would fall within the
scope of the EEOC investigation which can reasonably be
expected to grow out of the charge that was made.”
Id. (quoting Deravin v. Kerik, 335 F.3d
195, 200-01 (2d Cir. 2003)). In determining whether a claim
is reasonably related, the district court “focus[es]
‘on the factual allegations made in the [EEOC] charge
itself, describing the discriminatory conduct about which a
plaintiff is grieving.'” Littlejohn, 795
F.3d at 322 (alteration in original) (quoting
Deravin, 335 F.3d at 201). “The central
question is ...