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Felder v. Madison Square Garden

United States District Court, S.D. New York

March 1, 2018

SEAN G. FELDER, Plaintiff,


          GEORGE B. DANIELS, United States District Judge:

         Plaintiff Sean G. Felder, pro se, brings this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against his former employers, Madison Square Garden and Radio City Music Hall (collectively, "Defendants"), alleging discrimination in his employment as a security guard because he is African-American. (3d Am. Compl., ECF No. 52, ¶¶ 1-5, 7-13.) The relevant procedural and factual background is set forth in greater detail in this Court's March 13, 2017 Memorandum Decision and Order ("3/15/17 M&O, " ECF No. 49), and in Magistrate Judge Debra Freeman's January 25, 2017 Report and Recommendation ("1/25/17 Report, " ECF No. 46).

         Defendants previously moved to dismiss the claims asserted in Plaintiffs second amended complaint, which this Court granted on the basis of Magistrate Judge Freeman's 1/25/17 Report. (See 3/15/17 M&O at 4.) However, on Magistrate Judge Freeman's recommendation, this Court granted Plaintiff one final opportunity to replead solely to set forth the factual basis for what Judge Freeman construed as a discriminatory denial-of-hours claim. (Id. at 3-4.) In doing so, Plaintiff was directed to follow the detailed pleading instructions Magistrate Judge Freeman provided in her 1/25/17 Report.[1] (See id at 4.)

         Plaintiff filed a third amended complaint in May 2017. Plaintiffs amended complaint, however, does not track the specific instructions laid out in Magistrate Judge Freeman's 1/25/17 Report. Instead, he asserts allegations, never before raised, that Defendants' Hispanic employees received "easier, more favorable" work assignments than Plaintiff.[2] (3d Am. Compl. ¶¶ 7-12.) For the second time in this now three-year-old litigation, Defendants move to dismiss Plaintiffs claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment under Rule 56.[3](Defs.'Mot., ECFNo. 54.)

         Before this Court is Magistrate Judge Freeman's January 29, 2018 Report and Recommendation ("Report, " ECF No. 67), recommending that this Court grant Defendants' motion to dismiss because Plaintiff fails to allege, among other things, that he was denied hours of work because work was given instead, preferentially, to Hispanic employees. (Id. at 16.) In addition, the Report recommends that to the extent Plaintiff seeks to assert a disparate treatment claim based on the types of work assignments he did receive, that claim should be dismissed as unexhausted and for failure to state a claim under Title VII. (Id. at 16-17.) Magistrate Judge Freeman advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal, (Id. at 19.) Plaintiff filed a timely response to the Report, raising only perfunctory objections to the findings and conclusions set forth therein. (See Plaintiffs Letter to the Court dated February 4, 2018 ("PL's Resp."), ECF No. 68, at 1-2.)

         Having reviewed the Report de novo and for clear error, and finding none, this Court ADOPTS the Report in full.


         A. Report and Recommendations

         A court "may accept, reject, or modify, in whole or in part, the findings or recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). The court must review de novo the portions of a magistrate judge's report to which a party properly objects. Id. On de novo review, it is sufficient that the court "arrive at its own, independent conclusions regarding those portions to which objections were made." Manolov v. Borough of Manhattan Cmty. Coll., 952 F.Supp.2d 522, 526 (S.D.N.Y. 2013) (citations omitted).

         Portions of a magistrate judge's report to which no objections or merely "general objections" are made are reviewed for clear error. See Owusu v. N.Y. State Ins., 655 F.Supp.2d 308, 313 (S.D.N.Y. 2009); see also Id. ("[O]bjections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review.") (citation omitted). Clear error is present only when "upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).

         B. Rule 12(b)(6)

         To survive a motion to dismiss brought under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In deciding a 12(b)(6) motion, the court must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in the plaintiffs favor. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The court, however, need not credit "mere conclusory statements, " Iqbal, 556 U.S. at 678, nor must it give effect to "legal conclusions couched as factual allegations." Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555).

         C. Title VII

         Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that "[i]t shall be an unlawful employment practice for an employer, . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "[A]n employer discriminates against a plaintiff by taking an adverse employment action against him." Vega v. Hempstead Union Free Sch. Dist.,801 F.3d 72, 85 (2d Cir. 2015). "An adverse employment action is a materially adverse change in the terms and conditions of employment." Mathirampuzha v. Potter,548 F.3d 70, 78 (2d Cir. 2008) (internal quotation marks and citation omitted). To be actionable, the adverse change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry v. Ashcroft,336 F.3d 128, 138 (2d Cir. 2003) (citation omitted). Examples of materially adverse changes include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation, " Id. Receiving an unfavorable work schedule or assignment is insufficient to state a claim under Title VII, Smalls v. Allstate Ins. ...

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