United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. KOELTL, DISTRICT JUDGE
pro se plaintiff, Keith Ashmeade, brings this action
against his alleged former employers, Citizens Bank, N.A.
("Citizens Bank"), and Citizens Securities, Inc.
("Citizens Securities") (collectively,
"Citizens"), as well as his former supervisor,
Jennifer Depeau ("Depeau"), and Citizens Financial
Group ("CFG"), the alleged parent company of
Citizens, alleging claims arising out of the termination of
his employment. Ashmeade alleges claims of discrimination on
the basis of his personal bankruptcy, in violation of 11
U.S.C. § 525(b) and the New York State Human Rights Law,
N.Y. Exec. Law §§ 2 90 et seq. (the
"NYSHRL"); state law claims of defamation and
wrongful termination caused by the defendants' alleged
negligence, failure to train, and negligent supervision; and
federal claims of racial discrimination, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. Ashmeade also asserts
that the defendants committed several so-called
"procedural violations" by improperly removing this
case from state court and failing to respond in a timely
manner to his original Complaint. Ashmeade seeks sanctions
against the defendants pursuant to Rule 11 of the Federal
Rules of Civil Procedure for these "procedural
violations." Presently before the Court is a motion
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure to dismiss Ashmeade's Amended Complaint and an
alternative motion pursuant to Rule 12(f) of the Federal
Rules of Civil Procedure to strike any remaining claims of
procedural errors. For the following reasons, the
defendants' motion to dismiss is granted in
part and denied in part.
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's
favor. McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). A court's function on a
motion to dismiss is "not to weigh the evidence that
might be presented at a trial but merely to determine whether
the complaint itself is legally sufficient." Goldman
v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). A court
should not dismiss the complaint if the plaintiff has stated
"enough facts to state a claim to relief that is
plausible on its face." 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."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
the Court should construe the factual allegations in the
light most favorable to the plaintiff, "the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions."
may also consider documents incorporated by reference in the
complaint as well as documents the plaintiff either had in
the plaintiff's possession or had knowledge of and upon
which the plaintiff relied in bringing suit. See Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d
faced with a pro se complaint, a court must
"construe [the] complaint liberally and interpret it to
raise the strongest arguments that it suggests."
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(brackets and internal quotation marks omitted). A court may
also consider allegations that are contained in the
plaintiff's opposition papers. See Burgess v.
Goord/ No. 98-CV-2077, 1999 WL 33458, at *1
n.l (S.D.N.Y. Jan. 26, 1999) (collecting cases); see also
Kaplan v. N.Y. State Dep't of Corr. Servs., No.
99-cv-5856, 2000 WL 959728, at *1 (S.D.N.Y. July 10, 2000).
"Even in a pro se case, however, . .
.threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
suffice." Chavis, 618 F.3d at 170. Thus,
although a court is "obligated to draw the most
favorable inferences" that the complaint supports, it
"cannot invent factual allegations that [the plaintiff]
has not pled." Idw* see also Estevez v. City of New
York, No. 16-cv-73, 2017 WL 1167379, at *1 (S.D.N.Y.
Mar. 28, 2017).
following facts are taken from Ashmeade's Amended
Complaint ("Am. Compl.") and are accepted as true
for the purposes of this motion to dismiss.
January 4, 2016, Ashmeade agreed to work as a licensed banker
at Citizens Bank, a subsidiary of CFG, in Middletown, New
York. Am. Compl. ¶¶ 2, 3. His position with
Citizens constituted at-will employment. PL's Response at
12. As a licensed banker, Ashmeade was subject to the
Financial Industry Regulatory Authority ("FINRA")
regulations and to the employment policies of Citizens Bank.
Am. Compl. 1 8. Ashmeade's supervisor at Citizens Bank
throughout his employment was the Middletown Branch Manager,
Jennifer Depeau. Am. Compl. ¶¶ 6, 24.
2016, Ashmeade filed a bankruptcy petition pursuant to
Chapter 13 of Title 11 of the United States Code. Am. Compl.
¶¶ 4, 8; See 11 U.S.C. §§ 1301 et
Bank then received an anonymous phone call informing it that
Ashmeade had petitioned for bankruptcy under Chapter 13. Am.
Compl. ¶ 4. FINRA rules required Ashmeade to disclose
any history of bankruptcy by updating his FINRA Form U4. Am.
Compl. ¶¶ 2, 8; Am. Compl. Exs. 7.1a, 7.1b. As
Ashemeade's employer, Citizens was responsible for
reviewing and ensuring such disclosures were in compliance
with FINRA rules. See Am. Compl. fl 8, 9; Exs. 7.1a, 7.1b.
Citizens therefore conducted an investigation into
Ashmeade's bankruptcy disclosures pursuant to its
authority as a FINRA employer. Am. Compl. ¶ 5; Exs.
7.1a, 7.1b. Citizens closed the investigation after two
months and did not share with Ashmeade the information it
gathered. Am. Compl. ¶ 5. After Citizens closed the
investigation, Depeau verbally informed Ashmeade of a
"stipulation" that the he could not be promoted
until his Chapter 13 case was completed. Am. Compl. ¶ 5;
see Am. Compl. ¶¶ 6, 8.
2016, Citizens discovered that in April, 2016, Ashmeade
failed to mark a personal day as "Paid Time Off" in
the time-keeping system. Am. Compl. f¶ 14, 16, 17.
Depeau reviewed and approved Ashmeade's erroneous
timesheet when Ashmeade initially completed it, and Depeau
only became aware of the error over six months later upon an
end-of-year review. Am. Compl. ¶¶ 14, 17. Depeau
informed Ashmeade that this error was an oversight. Am.
Compl. ¶ 17. Upon asking Citizens's Human Resources
("HR") department about the procedure to amend his
timesheet, Ashmeade was not given any warning of a risk of
termination. Am. Compl. ¶ 14. Ashmeade completed a
manual adjustment to his timesheet which was subsequently
submitted by Depeau. Am. Compl. ¶ 15.
employment with Citizens Bank was terminated in January,
2017. Am. Compl. ¶ 24. Before termination, Ashmeade
received strong performance reviews from his supervisor and
received no warnings of inadequate conduct. Am. Compl. ¶
14. Pursuant to their obligation to disclose the reason for
termination of a FINRA-registered employee on the terminated
employee's Form 05, Citizens disclosed that Ashmeade was
"[d]ischarged . . . due to policy violations. Mr.
Ashmeade falsified his bank time card. Not investment
related." Ex. 7.2.
month after his termination in January 2017, Ashmeade's
position was filled by a former colleague who is twenty years
younger and less qualified than Ashmeade. Ashmeade's
replacement maintained a friendly relationship with Depeau,
and she is not a member of a protected class. Am. Compl.
¶¶ 21, 24. Since his discharge from Citizens Bank,
Ashmeade has had difficulty finding a new job and suffered
adverse employment consequences. Am. Compl. ¶ 20.
filed this pro se action on October 27, 2017, in New
York State court. The defendants jointly removed the case to
federal court on November 17, 2017, invoking this Court's
federal question and supplemental jurisdiction. Dkt. No. 1;
see 28 U.S.C. §§ 1331, 1367, 1441. On
November 27, 2017, the defendants moved for a more definite
statement of Ashmeade's claim. Dkt. Nos. 6-10. After a
brief exchange of correspondence and a pre-motion hearing
before the Court, Ashmeade filed the operative Amended
Complaint on January 8, 2018. Dkt. No. 18. The defendants
moved to dismiss Ashmeade's Amended Complaint on January
26, 2018. Dkt. Nos. 23-26.
defendants move to dismiss Ashmeade's claim of bankruptcy
discrimination under 11 U.S.C. § 525(b) because Ashmeade
has failed to state sufficient facts to claim ...