United States District Court, S.D. New York
G. GARDEPHE, UNITED STATES DISTRICT JUDGE
January 4, 2019, pro se Plaintiff Daaron Crawford filed a
complaint alleging that U.S. Security Associates, Inc.
("U.S. Security") had discriminated against him in
violation of the Americans with Disabilities Act of 1990
("ADA"), Title VII of the Civil Rights Act of 1964,
and the New York City Human Rights Law. Crawford claims that
Defendant did not hire him because of a disability.
March 6, 2019, the Clerk of Court entered a certificate of
default against U.S. Security. (Dkt. No. 9) Two days later,
U.S. Security filed a motion to set aside the entry of
default under Federal Rule of Civil Procedure 55(c) and to
dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 11) The Court referred the motion to
Magistrate Judge Robert W. Lehrburger (Dkt. No. 19), who
issued a 17-page report and recommendation
("R&R") recommending that the Court vacate the
entry of default and grant U.S. Security's motion to
dismiss. (R&R (Dkt. No. 20)) For the reasons set forth
below, the Court adopts Judge Lehrburger's R&R in its
entirety as it pertains to Plaintiffs federal claims. The
Court declines to exercise supplemental jurisdiction over
Plaintiffs New York City Human Rights Law claim.
2014, Crawford was employed as a security guard by a
contractor that provided security services to Goldman Sachs
in New York City. (Cmplt. (Dkt. 1) at 5, 21-22) On September 26,
2014, Crawford took a medical leave of absence after his toe
was amputated due to underlying diabetes. (Id. at
22) In January 2015, while still on medical leave, Crawford
learned that Goldman Sachs was switching security companies,
and that U.S. Security Associates would take over the Goldman
Sachs contract effective February 1, 2015. (Id. at
applied for employment with U.S. Security in January 2015, so
that he could continue working at the Goldman Sachs location.
(Id. at 22) On January 30, 2015, two days before
U.S. Security was scheduled to take over the security
contract for Goldman Sachs, U.S. Security's human
resources department sent an email to Crawford stating that
his application would "be reviewed shortly" and
that U.S. Security would contact him if his qualifications
met the company's requirements. (Id. at 19)
March 2015, Crawford received medical clearance to return to
work. (Id. at 22) He then repeatedly contacted
Defendant about the status of his application. (Id.
at 22-25) For example, in April 2015, Crawford met with U.S.
Security's human resources department, and was told that
someone would contact him "soon" about his
application. (Id. at 23) In May 2015, a U.S.
Security's human resources department employee told
Crawford him that "they were still waiting on a
decision" concerning this application. (Id.)
March 7, 2016, more than a year after he had applied to U.S.
Security, Crawford received an email from U.S. Security's
human resources department, which stated that "after a
careful review of your application, we have elected to pursue
other candidates whose qualifications more closely match our
needs for this position." (Id. at 20)
March 16, 2018, Crawford sent a fax to the Equal Employment
Opportunity Commission ("EEOC") in which he
complained that, after "a 6 month leave of absence due
to a serious medical condition involving a[n]
amputation," he was "never given the opportunity to
get [his] job back." (Id. at 11) Crawford does
not identify the employer or the position he was seeking, but
states that he "would like to file a charge"
against the employer. (Id.)
November 29, 2018, Crawford submitted a formal charge of
discrimination against U.S. Security with the EEOC.
(Id. at 30) Crawford claimed that, in failing to
hire him for a security guard position at Goldman Sachs, U.S.
Security had discriminated against him on the basis of a
disability. (Id.) On December 6, 2018, the EEOC
issued a letter informing Crawford that his charge was
untimely, as he had filed it more than "300 days [after]
the date of the last employment harm due to the alleged
discrimination." (Id. at 31)
January 4, 2019, Crawford filed the instant Complaint against
U.S. Security, alleging disability discrimination in
violation of the ADA, Title VII, and the New York City Human
Rights Law. (Id. at 3-4) As Judge Lehrburger notes
(R&R (Dkt. No. 20) at 4), although Crawford checks boxes
alleging failure to hire and retaliation on the form
complaint, his factual allegations concern exclusively a
failure to hire. (Id. at 5, 21-29)
February 22, 2019, Crawford filed an affidavit of service
stating that he had served the Complaint on January 10, 2019.
(Dkt. No. 4) U.S. Security did not answer or appear, and on
March 5, 2019, Crawford applied for a Clerk's certificate
of default. (Dkt. Nos. 5, 7, 8) The Clerk of Court issued a
certificate of default on March 6, 2019. (Dkt. No. 9) On
March 8, 2019 - two days later - U.S. Security moved to set
aside the entry of default and to dismiss the complaint.
(Dkt. Nos. 11, 12)
August 30, 2019, the Court referred U.S. Security's
motion to Judge Lehrburger. (Dkt. No. 19) In a September 11,
2019 R&R, Judge Lehrburger recommends that the entry of
default be set aside and that the complaint be dismissed. The
R&R warns that a "[f]ailure to file timely
objections will result in a waiver of objections and will
preclude appellate review." (R&R (Dkt. No.
20) at 16 (emphasis in original)) The R&R further notes
that Judge Lehrburger's chambers mailed ...