United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
Rickey McClarence, proceeding pro se, brings this
employment discrimination action against a labor union.
(Compl. (Doc. No. 1).) Fie attaches the September 27, 2016
letter from the Equal Employment Opportunity Commission
("EEOC") notifying him of his right to sue in
federal court. (Id.) His request to proceed in
forma pauperis is granted for the purpose of this Order.
For the reasons that follow, McClarence's complaint is
dismissed with leave to amend within thirty (30) days of the
entry of this Order.
November 22, 2016, McClarence commenced this action by filing
a form complaint for employment discrimination actions and
checking the box to initiate an action under Title VII of the
Civil Rights Act of 1964. (Compl. at 3.) He checked the
boxes on the form indicating that he was discriminated
against on the basis of race and color, but he did not
specify his race or color. (Id. at 5.) He also
checked the box for "disability or perceived
disability" and specified "my conviction
record." (Id.) He checked the boxes indicating
failure to hire and termination of his employment.
(Id. at 4.) In the space to describe the facts of
his case, McClarence states "[w]hen I completed my
sentence from prison the International Union of Operating
Engineers Local Union 14-1413 would not let me continue to
work thru the union." (Id. at 5.) He states
that he was informed that the exclusion was based on the
results of a drug test in April, 2007, "even tho I work
thru the union until I went to prison in 2009 without
discrimination until 1 finished my prison sentence and tryed
[sic] to reconnect with the union, "
(Id.) He alleges that he camiot support his
pre-prison lifestyle and meet his child support obligations
because he is unable to get his union card and renew his work
licenses and certificates. (Id. at 6.)
complaint filed in forma pauperis may be dismissed
"at any time" upon determination that the action
"(i) is frivolous or malicious, (ii) fails to state a
claim upon which relief may be granted, or (iii) seeks
monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B). In evaluating
whether a pleading states a claim for relief, "a court
must accept as true all factual allegations contained in a
complaint but need not accept legal conclusions."
Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). "Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal,
556 U.S. at 678. Moreover, the "[f]actual allegations
must be enough to raise a right to relief above the
speculative level, " and to nudge a plaintiffs claims
"across the line from conceivable to plausible."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
se complaints, like other pleadings, must contain
sufficient factual allegations to meet the plausibility
standard. See Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009). However, "[a] document filed pro se
is 'to be liberally construed, ' . . . and 'a
pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers.'" Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). Thus, a court must read a pro
se complaint with "special solicitude, "
Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir, 1994), and
must interpret it to raise the strongest claims it suggests.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474-75 (2d Cir. 2006). Where a liberal reading of the
pleading "gives any indication that a valid claim might
be stated, " the court must grant leave to amend it at
least once. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation marks omitted).
VII provides that "[i]t shall be an unlawful employment
practice for a labor organization to exclude or to expel from
its membership, or otherwise to discriminate against. any
individual because of his race, color .. . or national origin
....** 42 U.S.C.A. § 2000e-2. To state a Title VII
wrongful termination or exclusion claim against a labor
organization, "a plaintiff must demonstrate that the
union 1) discriminated against her because of her race,
color, religion, sex, or national origin, 2) segregated or
limited its membership, or classified its membership or
applicants for membership 'in any way which would deprive
or tend to deprive any individual of employment
opportunities, ' or 3) caused or attempted to cause an
employer to discriminate against an individual because of her
race, color, religion, sex, or national origin."
Daniels v. Health Ins. Plan of Greater N.Y., No.
02-CV-6054 (HB), 2007 WL 27115, at *7 (S.D.N.Y. Jan. 4, 2007)
(quoting 42 U.S.C. § 2000e-2(c)(1)-(3)).
case, McClarence's complaint fails to state a claim under
Title VII. McClarence has asserted a bare-bones claim that he
was discriminated against on the basis of race or color, but
has not identified himself as a member of a protected class
based on race, nor presented any facts indicating that he was
discriminated against on the basis of his membership in a
protected class. Indeed, the only explanations he provides
for why he was terminated or failed to be reinstated to union
membership are the result of a drug test and a past criminal
conviction. (Compl. at 4-5.) Neither of these factors
indicate membership in a suspect class that is protected
under federal anti-discrimination laws. Title VII and the
Americans with Disabilities Act do not protect against
employment discrimination based upon a prior
conviction. See McCoy v. People Care Inc.,
No. 1 l-CV-2689 (RA), 2013 WL 5313433, at *5 (S.D.N.Y. Sept.
20, 2013); Idlisan v. N.Y.S. Dep't of Taxation
& Fm., No. 12-CV-1787 (MAD) (CFH), 2013 WL 2898050,
at *4 (N.D.N.Y. June 13, 2013); Tubbs v. N.Y.C. Parks
Dep't (JTP) Parks Opportunity Arsenal W., No.
12-CV-3322 (CBA) (VMS), 2012 WL 4838439, at *1 (E.D.N.Y. Oct.
10, 2012); see also 42 U.S.C.
§§12112-12117. Moreover, "courts consistently
conclude that an employee's failure of a drug test
constitutes a legitimate nondiscriminatory reason for
terminating the employee." Fahey v. City of
MY., No. 10-CV-4609 (ILG) (MDG), 2012 WL 413990, at *9
(E.D.N.Y. Feb. 7, 2012) (collecting cases). As McClarence has
not adequately alleged that he was discriminated against on
the basis of his membership in a suspect class, the complaint
as filed fails to state a claim for relief and must be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
light of McClarence's pro se status, the Court
grants leave to file an amended complaint to state any
possible claim for employment discrimination pursuant to
Title VII. With respect to any claim for racial
discrimination, McClarence must identify his race and specify
any race-based discrimination or classification that he
faced. McClarence may submit an amended complaint within
thirty (30) days from the date of this Order. The new
complaint should be captioned as an "Amended Complaint,
" and bear the same docket number as this Order, The
Amended Complaint shall completely replace the original
reasons set forth above, the complaint is dismissed for
failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B). McClarence's claims related to his prior
conviction are dismissed without prejudice to filing in state
court. McClarence is granted leave to file an amended
complaint to allege claims related to Title VII
discrimination. No summons shall issue at this time, and all
further proceedings shall be stayed for thirty days. Failure
to plead sufficient facts in the amended complaint to give
rise to a claim will result in dismissal of this action, and
if plaintiff fails to file an amended complaint within thirty
days, judgment shall enter.
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore
in forma pauperis status is denied for purpose of an
appeal. See ...