United States District Court, W.D. New York
FRANK P. GERACI, JR. CHIEF JUDGE.
se Plaintiff Anthony Whitt brings this action for racial
discrimination and retaliation against Defendant Buffalo
Transportation Inc. pursuant to 42 U.S.C. § 1983 and
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000-e-2000e-17.
See ECF No. 1. Plaintiff filed his Complaint on July
20, 2017. Id. On August 1, 2017, Defendant moved to
dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). ECF No. 3. For the reasons that follow,
Defendant's Motion is GRANTED, and Plaintiff is granted
leave to file an Amended Complaint.
worked for Defendant on an at-will basis as a
“wheelchair driver” from November 11, 2015 to
September 26, 2016. ECF No. 5, at 3. He takes issue with
three incidents that occurred during his employment: First,
on August 14, 2016, Plaintiff was asked to complete a pick-up
during his lunch break, which he refused to do. ECF No. 1, at
2. Plaintiff declined repeated requests to take his lunch
break later, and-upon discussion with his supervisor and
Defendant's owner- returned the keys and company vehicle
without completing the pick-up. See Id. The next
day, Plaintiff was informed that the exchange had been a
“misunderstanding, ” and that he was still
on September 14, 2016, Plaintiff received an
“[e]mployment packet” describing a partnership
between Defendant and Cornerstone, an employment company.
Id. He learned that he would become a
“leased-out[, ] [a]t-will employee of Cornerstone,
” and he received a new rulebook. Id.
Plaintiff took issue with the new rulebook's lack of
revision and failure to include “key elements of NYS
Discrimination Rights, ” along with “any sign of
a contract between employer and employee.” Id.
at 3. Accordingly, Plaintiff “refused to sign th[e] new
employment packet/contract.” Id.
on September 23, 2016, an administrator with Defendant called
Plaintiff to inform him that he would be switched to the
morning shift. Id. Plaintiff explained that he was
unable to accommodate that change because he watched his
child in the morning, and the administrator directed him to
speak with Defendant's owner. Id. On September
26, 2016, Defendant's owner terminated Plaintiff's
employment, citing Plaintiff's inability to work the
morning shift. Id.
Rule of Civil Procedure 8(a)(2) instructs that a complaint
must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Supreme Court clarified the requirements of Rule 8(a)(2) for
“all civil actions.” Iqbal, 556 U.S. at
684. To be sufficient, a pleading “does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678 (quoting
Twombly, 550 U.S. at 555). In that vein, “[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). Rather, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). That measure of
plausibility requires “more than a sheer possibility
that a defendant has acted unlawfully”-the pleaded
facts must permit a “reasonable inference” of
liability for the alleged misconduct. Id.; see
also Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011) (instructing that “all reasonable
inferences” are to be taken in the plaintiff's
pro se plaintiff's complaint remains subject to
Rule 8(a)(2)'s requirements, it is entitled to
“special solicitude, ” requiring a court to
“interpret the complaint to raise the
‘strongest claims that it suggests.' ”
See, e.g., Williams v. Priatno, 829 F.3d
118, 122 (2d Cir. 2016) (quoting Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011)); see also Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting the
“obligat[ion] to construe a pro se complaint
liberally”). Beyond the facts alleged in a pro
se plaintiff's complaint, a court may also consider
“documents attached to the complaint as exhibits and
documents incorporated by reference in the complaint, ”
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010), along with “materials outside the complaint
to the extent that they are consistent with the allegations
in the complaint, ” e.g., Martinez v.
Aycock-West, 164 F.Supp.3d 502, 508 (S.D.N.Y. 2016)
(quoting Alsaifullah v. Furco, No. 12 Civ. 2907(ER),
2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)); see
also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.
2013) (instructing that a district court may consider facts
included in a pro se party's opposition papers
in deciding a motion to dismiss).
brings his claims “under 42 U.S.C. Section 1983, Title
VII OF THE CIVIL RIGHTS ACT OF 1964 (Title VII).” ECF
No. 1, at 2. Specifically, Plaintiff seeks monetary damages
from Defendant under § 1983 for alleged violations of
Title VII. See ECF No. 1; see also ECF No.
5, at 3. Defendant argues that Plaintiff “fails to
allege ‘state action' or that [D]efendant acted
under color of state law, which are conditions precedent to
maintaining a 1983 action.” ECF No. 3-2, at 2.
is correct that-by its terms-§ 1983 requires action
“under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District
of Columbia.” 42 U.S.C. § 1983. Plaintiff suggests
that Defendant's incorporation under the laws of the
State of New York transformed it into a “state actor,
” ECF No. 5, at 3, but that argument has no merit,
see, e.g., Tancredi v. Metro. Life Ins.
Co., 316 F.3d 308, 312-13 (2d Cir. 2003); see also
Abdul-Rahman v. Brooklyn Hosp., No. 05CV2996 (CBA)(LB),
2005 WL 2809172, at *1 (E.D.N.Y. Oct. 26, 2005) (“The
mere fact that a hospital is incorporated under the laws of
the State of New York or licensed to do business in New York
. . . does not make it a state actor.”). Plaintiff
pleads no other facts to suggest any relationship between
Defendant's activities and the State of New York.
Contrary to Defendant's contentions, however,
Plaintiff's failure to plead state action under §
1983 does not warrant the dismissal of his Complaint.
proper consideration to Plaintiff's status as a pro
se party, the Court reads the Complaint to clearly
include claims under Title VII, which prohibits employers
from discriminating on the basis of race. 42 U.S.C. §
2000e-2(a)(1); see ECF No. 1 (listing the
“nature of the suit” and “cause of
action” as Title VII and citing violations of Title
VII). Title VII also bars an employer from discriminating
against an employee for opposing an employment practice that
violates Title VII. 42 U.S.C. § 2000e-3(a).
Notwithstanding Title VII's ...