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McCray v. Project Renewal, Inc.

United States District Court, S.D. New York

February 22, 2017

SAMMY E. MCCRAY, Plaintiff,
v.
PROJECT RENEWAL, INC., Defendant.

          OPINION & ORDER

          VALERIE CAPRONI United States District Judge.

         In this 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.

         BACKGROUND[1]

         McCray is an African-American male who was employed as a non-staff kitchen cook at Project Renewal.[2] 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.[3] 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.[4] 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.

         McCray 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.

         In 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”).

         McCray 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 disabled.

         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). 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.

         DISCUSSION

         In 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.

         “It 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.

         Exhaustion of Administrative Remedies

         Before 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.

         A 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 ...


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