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Gonzales v. Legend Hospitality

United States District Court, E.D. New York

March 27, 2017

AMABLE GONZALEZ, pro se, Plaintiff,


          DORA L. IRIZARRY, Chief United States District Judge

         Amable Gonzalez (“Plaintiff”), proceeding pro se, [1] commenced this action against Legends Hospitality (“Defendant”) alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). (See Amended Complaint (“Am. Compl.”), Dkt. Entry No. 5, at 1.) Defendant filed the instant motion to dismiss the Amended Complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Def. Mem. in Supp. of Mot. to Dismiss (“Def.'s Mem.”), Dkt. Entry No. 19.) Plaintiff opposed the motion seeking equitable tolling for his untimely filing. (See Pl.'s Aff. in Opp'n to Mot. to Dismiss (“Pl.'s Opp'n”), Dkt. Entry No. 24.)

         For the reasons set forth below, the motion to dismiss is granted and the Amended Complaint is dismissed in its entirety. Plaintiff's Title VII, ADEA, and ADA claims are all dismissed as untimely because equitable tolling is unwarranted. Furthermore, even if the action had been filed timely, the Amended Complaint still would fail to state a claim for which relief could be granted.


         Plaintiff is a Hispanic man, born in the Dominican Republic in 1955.[2] (Am. Compl. at 3, ¶ 7.)[3] From 2009 to 2012, Plaintiff was employed as a utility prep pastry cook for Defendant. (Pl.'s Opp'n at ¶ 12.) Throughout this entire period, Plaintiff allegedly suffered from a torn ligament in in his knee as well as misaligned vertebrae. (Id. at ¶ 17.) Sometime in 2012, Plaintiff was terminated. (Id. at ¶ 32.)

         Plaintiff commenced this action by filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) in June 2012.[4] (Am. Compl. at 6 ¶ 10.) On January 15, 2014, the EEOC mailed Plaintiff his Dismissal and Notice of Rights Letter (“right-to-sue letter”) stating that the their investigation did not lead to a conclusion that Title VII, the ADEA, or the ADA were violated. (See Complaint (“Compl.”), Dkt. Entry No. 1, at 4.) Over nine months after the EEOC's decision, on October 29, 2014, Plaintiff filed the present suit claiming employment discrimination related to his “age, race, [and] physical health issues.” (Compl. at 1, 2 ¶ 8.) Although the Complaint was deemed untimely and insufficient, in light of his pro se status, Plaintiff was granted leave to amend on November 5, 2014. (Nov. 5, 2014 Decision, (“Nov. 2014 Order”), Dkt. Entry No 4, at 3, 5.)

         On December 5, 2014, Plaintiff filed his Amended Complaint. It alleges three causes of action: (1) discrimination based on his race and national origin in violation of Title VII; (2) discrimination based on his age in violation of the ADEA; and (3) discrimination based on his health issues in violation of the ADA. (See Am. Compl. at 1, 4, 6 ¶ 8, 7 ¶ 8.) In support of the claims, Plaintiff alleges that his “supervisor made repeated comments to [him] related to [his] age, race, [and] physical health issues [he] was experiencing.” (Id. at 6 ¶ 8.) Plaintiff offers examples of this commentary. Insofar as race and national origin, Plaintiff alleges that his supervisor asked him why “Spanish people don't appreciate [their] job[s], ” and why “Dominican people” act a certain way. (Id. at 4, 6 ¶ 8.) Similarly, Plaintiff claims that the commentary about his age included questions about his stamina, and more pointedly, if he was “too old” to do his job. (Id. at 4.)

         As for timeliness, Plaintiff argues that he could not initiate litigation in a timely fashion because of an illness that began on November 14, 2014.[5] (Id. at 4.) In support of this position, Plaintiff attached a medical report showing that he had received an influenza vaccine on December 2, 2014. (See Id. at 11.)

         On May 15, 2015, Defendant filed the instant motion to dismiss the action for untimeliness and failure to state a claim for which relief can be granted. (See Def.'s Mem.)

         On March 8, 2016, Plaintiff filed his opposition papers, in which, he made additional factual assertions related to his Amended Complaint.[6] (See Pl.'s Opp'n.) Regarding timeliness, Plaintiff claims that he never actually received the EEOC's right-to-sue letter. (Id. at ¶ 4.) He states that he did not receive the letter because he moved to a different residence prior to January 15, 2014. (Id. at ¶ 4-6.) Later that year, Plaintiff inquired as to the status of his EEOC claim, and the EEOC informed him that it had already sent him its decision. Following this contact, the EEOC re-sent the letter to his new address. (Id. at ¶ 6.) Plaintiff insists that, as soon as he received the right-to-sue letter, he went to this courthouse and filed this action. (Id. at ¶ 7.) Accordingly, Plaintiff urges the Court to toll his filing deadline because he “should not be prevented from going forward with [his] case because of a deadline [he] did not even have notice of.” (Id. at ¶¶ 8-9.)

         As to the claims, Plaintiff reiterated in his opposition that he was “being harassed and discriminated against because [he] [is] Dominican, because [he] [is] an older worker, and because of [his] medical condition.” (Id. at ¶ 14.) To support the Title VII claim, Plaintiff asserted that his supervisor: treated other Hispanics discriminatorily; fired other Dominicans; and asked him about “Spanish people.” (Id. at ¶¶ 23, 27-29.) To substantiate the ADEA claim, Plaintiff insisted that his supervisor would ask him why he completed tasks slowly and why he lacked energy. (Id. at ¶¶ 22, 26.) Finally, to supplement the ADA claim, Plaintiff declared that, in addition to the comments concerning energy, his supervisor also stated the claimed medical reasons for his lackluster performance were “no excuse, ” and Plaintiff “shouldn't work [there].” (Id.)

         Ultimately, in addition to these specific factual allegations concerning the three claims, Plaintiff generally stated that “management fired [him] because [his supervisor] thought [he] was [a] threat to him.” (Id. at ¶ 32.)

         On March 21, 2016, Defendant responded to Plaintiff's filing and argued that: (1) a change of address does not justify equitable tolling; (2) the additional factual allegations contained in the opposition papers should be disregarded; and (3) the Amended Complaint should be dismissed as untimely and/or for failing to state a claim for which relief can be granted. (Reply Mem. of Law in Further Supp. of Def.'s Mot. to Dismiss Pl.'s Am. Compl. (“Reply Mem.”), Dkt. Entry No. 25.)


         Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). In general, pro se complaints are held to less stringent standards than pleadings drafted by attorneys, and the Court is required to read a pro se complaint liberally and interpret it raising the strongest arguments it suggests. See Erickson, 551 U.S. at 89; Huges v. Rowe, 449 U.S. 5, 9 (1980); Sealed Petitioner v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).

         Under Rule 12(b)(6), a defendant may move, in lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” To resolve such a motion, courts “must accept as true all [factual] allegations contained in a complaint, ” but need not accept “legal conclusions.” Iqbal, 556 U.S. at 678. For this reason, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to insulate a claim against dismissal. Id. “[A] complaint must contain ...

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