United States District Court, S.D. New York
SEAN G. FELDER, Plaintiff,
MADISON SQUARE GARDEN and RADIO CITY MUSIC HALL, Defendants.
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge:
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).
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. (See id at 4.)
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. (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.(Defs.'Mot., ECFNo. 54.)
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.)
reviewed the Report de novo and for clear error, and
finding none, this Court ADOPTS the Report in full.
Report and Recommendations
"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).
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).
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).
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.