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Borden v. City of New York

United States District Court, S.D. New York

February 24, 2017

DERRICK BORDEN, Plaintiff,
v.
CITY OF NEW YORK, Defendant.

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS, United States District Judge

         Plaintiff Derrick Borden, proceeding pro se and in forma pauperis, brings claims for employment discrimination against the City of New York (the “City”) in connection with his employment with the New York City Department of Parks and Recreation. The City has moved to dismiss Mr. Borden's amended complaint on the ground that it is barred by a prior settlement and general release. Because the claims that Mr. Borden asserts here fall within the scope of that release, the City's motion to dismiss is GRANTED, and Mr. Borden's amended complaint is DISMISSED.

         I. BACKGROUND[1]

         On January 29, 2016, Mr. Borden initiated this action by filing a complaint against the New York City Department of Parks and Recreation (the “DPR”) using the Court's form complaint for employment discrimination cases. ECF No. 2, Compl. On the form, Mr. Borden checked the boxes indicating that he was asserting claims under Title VII and the New York City Human Rights Law for discrimination on the basis of his race and color. Compl. at 1, 3. He also checked boxes indicating that he was complaining of adverse action in the form of failure to hire, failure to promote, and termination of employment. Compl. at 2. Other than those checkmarks, Mr. Borden's initial complaint contained no factual allegations. Attached to the complaint was a right-to-sue letter issued by the Equal Employment Opportunity Commission and the first page of an Order After Stipulation of Settlement issued by the New York State Division of Human Rights (“NYSDHR”) on October 22, 2014. Compl. at 5-6. The order incorporated a stipulation of settlement as the “Order of the Commissioner.” Compl. at 5. It also stated that the stipulation of settlement was attached to the order as Exhibit A, although Mr. Borden did not include the stipulation as an attachment to the complaint. Id.

         On June 13, 2016, Chief Judge Colleen McMahon issued an order sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B), stating that the allegations in Mr. Borden's complaint were “insufficient to state a plausible claim for relief under Title VII because they lack any detail” and granting Mr. Borden leave to file an amended complaint “to allege facts showing that he has a plausible claim for relief.” ECF No. 4, Order dated June 13, 2016. The case was reassigned to this Court on September 7, 2016.

         On August 19, 2016, Mr. Borden made a submission that was docketed by the District's Pro Se Intake Unit as an amended complaint. ECF No. 5, Am. Compl (“AC”). The Court adopts that interpretation and construes the submission as an amended complaint. Mr. Borden's amended complaint contains what appears to be an incomplete handwritten statement and several attached documents from the New York State Unemployment Insurance Appeal Board and the NYSDHR. Id.

         In the amended complaint, Mr. Borden alleges that he “was hired [by DPR] and was not given proper attire to do his assignment [in] April, 2013.” AC at 1. More specifically, he alleges that “[a]ll of [his] co-workers were dressed with protective clothing, which included googles [sic], gloves, boots and overalls, ” but that “[n]o such provisions were made for [him].” AC at 2. Mr. Borden also alleges that he “complained that he was injured in the past by the lack of proper work items, specifically coveralls to protect his entire body.” AC at 1. After bringing this grievance to his supervisor, “she fired him on July 24, 2013.” Id. According to the amended complaint, the supervisor stated that she was firing Mr. Borden for excessive absences and, perhaps, other forms of insubordination. AC at 1-2. However, Mr. Borden alleges that he “worked for [DPR] for approximately 8 years without any lack of professional work behaviors, ” that he was fired “without just cause, ” and that “he was discriminated against.” AC at 1-2.

         On August 29, 2013, approximately one month after his termination, Mr. Borden filed a complaint with the NYSDHR, alleging that DPR had discriminated against him because of his race and color, and that DPR had retaliated against him for complaining about the alleged discrimination. AC at 6. In his amended complaint in this action, Mr. Borden alleges that “[DPR] resolved the legal matter in Plaintiff favor by paying monetary damages in the amount of $2, 000 dollar which was supposed to be for wages which Plaintiff could have earned supposely.” AC at 2. Mr. Borden adds: “[T]his action still admits culpability. Plaintiff asks to be granted $50, 000 for all pain and suffering, and other further damages whereas being injured by asigned chores.” Id.[2]

         On December 28, 2016, the Court granted the City[3] leave to file a motion to dismiss Mr. Borden's amended complaint. ECF No. 16. The Court ordered that the City file and serve its motion no later than January 18, 2017, that Mr. Borden file and serve an opposition to the City's motion no later than February 9, 2017, and that the City file any reply no later than one week following service Mr. Borden's opposition. Id.

         On January 18, 2017, The City filed a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that it is barred by a release that was executed in connection with the settlement referenced in the amended complaint. ECF No. 19. Although, as noted above, Mr. Borden had attached to his initial complaint an NYSDHR document entitled Order After Stipulation of Settlement, he did not attach that document to his amended complaint. The City has provided that Order, however, as well as the stipulation of settlement referenced in and attached to the Order, in connection with its motion. ECF No. 20, Decl. of Shawna C. MacLeod in Supp. of Def.'s Mot. to Dismiss (“MacLeod Decl.”), Ex. 1.[4] The Order itself states that the parties had signed a settlement, that the “terms of said settlement agreed upon by the parties are incorporated into the Stipulation annexed hereto as Exhibit A, ” and that the agreed-upon terms set forth in the annexed stipulation “are herein adopted and incorporated by reference.” Id. Finally, it orders that “the settlement and discontinuance stipulated and agreed upon by the parties herein be, and the same hereby is, made the Order of the Commissioner.” Id.

         The stipulation of settlement, which is both annexed to and incorporated by reference into the NYSDHR Order, contains the following term:

The Complainant hereby withdraws the verified complaint (Case No. 1016-4179) before the Division, and before the United States Equal Opportunity Commission . . . with prejudice and releases and discharges the Respondent, and Respondent's affiliated companies, subsidiaries, parent companies, and directors, shareholders, officers, employees, attorneys, agents, representatives, and successors and assigns, and all persons acting with or on behalf of them, from all charges, complaints, claims, liabilities, . . . actions, or causes of action . . . of any nature whatsoever, including but not limited to employment discrimination claims arising under local, state or federal statute, regulation, or ordinance relating to employment discrimination or other employment conditions, or prohibiting termination or retaliation for reporting a violation of the law, or any other claim related to or arising out of the Complainant's employment by the Respondent, known or unknown, which the Complainant may ever before have had or claim to have had from the beginning of the world through the date of this agreement.

Id. at 4 (¶ 6). The stipulation dated July 9, 2014 and is executed by Mr. Borden and an assistant corporation counsel on behalf of DPR. Id. at 5.

         Mr. Borden has not filed an opposition to the City's motion, despite the fact that both the Court's December 28, 2016 briefing schedule order and the City's notice of motion―each of which were served on ...


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