UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FELIX CORTIJO, Plaintiff, 19-CV-3047 (CM) -against- ORDERTO AMEND 1711 DAVIDSON AVE HDFC,et al., Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff brings this pro seemployment discrimination action underthe Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634; the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796; 42 U.S.C. § 1981; the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297; andthe New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 131. By order datedApril 12, 2019,the Court granted Plaintiff’s request to proceed in forma pauperis.For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction.SeeFed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro sepleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND Plaintiff uses the Court’s “Employment Discrimination” complaint form to raise his
discrimination claims and checks off the boxes next to the ADEA and the Rehabilitation Act as the statutes under which he brings this lawsuit. He does not check the box next to 42 U.S.C. § 1981, but he does write “black” next to “My race is.” (Compl. at 4.) The following facts are taken from the complaint, which is not a model of clarity: Defendant Vanessa Hatchet, the manager at Defendant 1711 Davidson Avenue HDFC [Housing Development Fund Corporation], did not hire Plaintiff as a superintendent, possibly because he was not in a union. Plaintiff also asserts: “monitor for personal reason.” (Compl. at 5.) He claims that Defendants retaliated against him but does not detail any retaliatory acts. Plaintiff states that he did not exhaust his administrative remedies with the Equal
Employment Opportunity Commission (EEOC). Plaintiff requests that the Court order Defendants to reasonably accommodate his disability, which hedoes not identify. He also seeks “$18,000 for real estate information provided to her for continuance of managing 1711 Davidson Ave HDFC.” (Id.at 6.) DISCUSSION A. Plaintiff fails to state a claim under the ADEA The ADEA makes it unlawful for an employer to“discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a). The ADEA protects workers who are at least 40 years old from discrimination because of age. Feldman v. Nassau Cnty., 434 F.3d 177, 180 (2d Cir. 2006); see29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”). A plaintiff asserting a claim for age discrimination in violation of the ADEA must allege “that age was the ‘but for’ cause of the employer’s adverse actions.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177 (2009) (holding that in contrast to Title VII, “the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.”); Barone v. S & N Auerbach Mgmt., Inc., 645 F. App’x 13, 14 (2d Cir. 2016)(“Under the ADEA, a plaintiff must allege that age was the ‘but for’ cause –not merely a motivating factor – of the adverse employment action.”). As an initial matter, Plaintiff affirmatively states that he did not exhaust his administrative remedies with the EEOC. ADEA plaintiffs may file suit in federal court at any time from 60 days after filing the EEOC charge until 90 days after the plaintiff receives notice from the EEOC that the EEOC proceedings are terminated.SeeHodge v. New York Coll. of
Podiatric Med., 157 F.3d 164, 166 (2d Cir. 1998) (relying on 29 U.S.C. § 626(d), (e)). On this basis alone, the complaint fails to state a claim becausePlaintiff states that hedid not exhaust his administrative remedies with the EEOC.See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (“[B]oth the Supreme Court and the Second Circuit have long held that courts may dismiss actions on their own motion in a broad range of circumstances where they are not explicitly authorized to do so by statute or rule.”); Akassy v. Hardy, Nos.17-2737, 17-2741, 17-2994, 2018 WL 1612164, at *3 (2d Cir. Apr. 4, 2018) (finding that dismissal can be based on an affirmative defense that was clear on the face of the complaint). Moreover, Plaintiff fails to allege that he is at least forty years old. It is therefore unclear whether he is protected under the ADEA. Plaintiff alsofails to allege facts suggesting that Hatchett did not hire him because of his age. The complaint therefore fails to state a claim on which relief can be granted.
While the Court is inclined to dismiss this claim, because it is not clear that an amendment would befutile, the Court grants Plaintiff leave to amend his complaint to plead facts suggestingthat he has since filed a charge with the EEOC, he is at least forty years old,and that Hatchett did not hire him because of his age. B. Plaintiff fails to state a claim under the Rehabilitation Act Plaintiff asserts that Defendants discriminated against him in violation of the Rehabilitation Act. Under the Rehabilitation Act, “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of . . .his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.. ..”29 U.S.C. § 794(a).
Because Plaintiffbrings this action against a private apartment building in New York City, the Rehabilitation Act most likely does not apply. But even if the Act did apply, Plaintiff does not assert any facts suggesting that Defendants did not hire him because of a disability. But because the Court has granted Plaintiff leave to amend his complaint, he may also assert any facts indicating that Defendants discriminated against him based on his disability. C. Plaintiff did not exhaust his claim of discrimination underthe Americans with Disabilities Act (ADA) Because Plaintiff asserts that Defendants did not hire him because of his disability, the complaint could be construed as asserting a claim under the ADA. “The ADA prohibits discrimination against a ‘qualified individual on the basis of disability’ in the ‘terms, conditions, and privileges of employment.’” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. §12112(a)). Before filing suit under the ADA, a plaintiff must first file a timely charge with the Equal Employment Opportunity Commission (EEOC) and obtain a Notice of Right to Sue.See42 U.S.C. §2000e-5(e)(1); 42
U.S.C. §12117(a) (incorporating into the ADA the filing requirements for Title VII claims set forth in 42 U.S.C. §2000e-5); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012). In New York, this charge must be filed with the EEOC within 300 days of the alleged act of discrimination. 42 U.S.C. §2000e-5(e)(1); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28(2d Cir. 1999). Exhaustion of administrative remedies is not, however, jurisdictional, but like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. SeeZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)); see also Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir.
2006) (“Because [the] failure to exhaust [one’s] administrative remedies is not a jurisdictional defect, it is subject to equitable defenses.”). Plaintiff states that he did not exhaust his claims with the EEOC.1While a plaintiff is not required to plead exhaustion of administrative remedies,because “the burden of pleading and proving exhaustion lies with defendants and operates as an affirmative defense,” Hardaway v. Hartford Pub. Works Dep’t,879 F.3d 486, 491 (2d Cir. 2018), a court may consider or even
1ADA plaintiffs must receive a right-to-sue letter from the EEOC, but ADEA plaintiffs need only filea charge with the EEOC. dismiss a complaint where the existence of the affirmative defense is plain from the face of the pleading, see Walters, 651 F.3d at 293; Akassy, 2018 WL 1612164, at *3. The Court therefore declines to construe the complaint as asserting a claim under the ADA because it would be futile to do so. D. Plaintiff fails to state a claim under 42 U.S.C. § 1981
The Court construes the complaint as asserting a claim under § 1981because Plaintiff asserts that (1) he is black,and (2) Defendants refused to hire him. To state a claim under § 1981, a plaintiff must allegethat he “is a member of a racial minority,” that the defendant discriminated against him because of his race, and the discrimination concerned one or more of the activities enumerated in the statute, such as making and enforcing a contract. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). At-will employment is a “contractual relationship within the meaning of § 1981.” Lauture v. Int’l Bus. Machines Corp., 216 F.3d 258, 261 (2d Cir. 2000). A§ 1981 claim must be filed within four years of the discrimination.See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382(2004).
The facts alleged are insufficient to state a claim under § 1981. But because Plaintiff raises the possibility that Defendants were motivated by his race, the Court grants him leave to amend his complaint to assert any facts that support his claim under § 1981. LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to detail his claims under the ADEA, the Rehabilitation Act,and § 1981. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must: a) give the names and titles of all relevant persons; b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do; c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event; d) give the location where each relevant event occurred; e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief. Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violationoccurred; where such violationoccurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint,any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. CONCLUSION The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 19-CV- 3047(CM). An Amended Complaint for Employment Discriminationform is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and hecannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: May 3, 2019 . New York, New York hie. Iu yh Chief United States District Judge
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Write the full name of each plaintiff. CV. (Include case number if one has been assigned) “against: Do you want a jury trial? Ll1Yes LINo
Write the full name of each defendant. The names listed above must be identical to those contained in Section |. AMENDED EMPLOYMENT DISCRIMINATION COMPLAINT
NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
Rev. 3/24/17
I. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
First Name Middle Initial Last Name
Street Address
County, City State Zip Code
Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. (Proper defendants under employment discrimination statutes are usually employers, labor organizations, or employment agencies.) Attach additional pages if needed. Defendant 1: Name
Address where defendant may be served
Defendant 2: Name
County, City State Zip Code Defendant 3: Name
County, City State Zip Code II. PLACE OF EMPLOYMENT The address at which I was employed or sought employment by the defendant(s) is:
Name Address County, City State Zip Code Il. CAUSE OF ACTION A. Federal Claims This employment discrimination lawsuit is brought under (check only the options below that apply in your case): L] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, for employment discrimination on the basis of race, color, religion, sex, or national origin The defendant discriminated against me because of my (check only those that apply and explain): L] race: CL] color: L] religion: Ll sex: L] national origin:
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L] 42U.S.C. § 1981, for intentional employment discrimination on the basis of race My race is: [] Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634, for employment discrimination on the basis of age (40 or older) I was born in the year: L] Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 796, for employment discrimination on the basis of a disability by an employer that constitutes a program or activity receiving federal financial assistance My disability or perceived disability is: [] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, for employment discrimination on the basis of a disability My disability or perceived disability is: L] Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654, for employment discrimination on the basis of leave for qualified medical or family reasons B. Other Claims In addition to my federal claims listed above, I assert claims under: L] New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297, for employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status L] New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131, for employment discrimination on the basis of actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status L] Other (may include other relevant federal, state, city, or county law):
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IV. STATEMENT OF CLAIM A. Adverse Employment Action The defendant or defendants in this case took the following adverse employment actions against me (check only those that apply): L] didnot hire me [] terminated my employment L] did not promote me L] did not accommodate my disability L] provided me with terms and conditions of employment different from those of similar employees L] retaliated against me □□ harassed me or created a hostile work environment L] other (specify):
B. Facts State here the facts that support your claim. Attach additional pages if needed. You should explain what actions defendants took (or failed to take) because of your protected characteristic, such as your race, disability, age, or religion. Include times and locations, if possible. State whether defendants are continuing to commit these acts against you.
As additional support for your claim, you may attach any charge of discrimination that you filed with the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights, the New York City Commission on Human Rights, or any other government agency.
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V. ADMINISTRATIVE PROCEDURES For most claims under the federal employment discrimination statutes, before filing a lawsuit, you must first file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) and receive a Notice of Right to Sue. Did you file a charge of discrimination against the defendant(s) with the EEOC or any other government agency? L] Yes (Please attach a copy of the charge to this complaint.) When did you file your charge? [1] No Have you received a Notice of Right to Sue from the EEOC? L] Yes (Please attach a copy of the Notice of Right to Sue.) What is the date on the Notice? When did you receive the Notice? [1] No VI. RELIEF The relief I want the court to order is (check only those that apply): L] direct the defendant to hire me L] direct the defendant to re-employ me L] direct the defendant to promote me L] direct the defendant to reasonably accommodate my religion L] direct the defendant to reasonably accommodate my disability L] direct the defendant to (specify) (if you believe you are entitled to money damages, explain that here)
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VII. PLAINTIFF’S CERTIFICATION By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff’s Signature
Telephone Number Email Address (if available)
Ihave read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically: LlYes LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.
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Gn [5 vy 4) United States District Court eee) Southern District of New York ID OS Sister y
Pro Se (Nonprisoner) Consent to Receive Documents Electronically Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their cases electronically (by e-mail) instead of by regular mail. Receiving documents by regular mail is still an option, but if you would rather receive them only electronically, you must do the following: 1. Sign up for a PACER login and password by contacting PACER! at www.pacer.uscourts.gov or 1-800-676-6856; 2. Complete and sign this form. If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked document number in the e-mail.* Once you click the hyperlink and access the document, you may not be able to access the document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For this reason, you should print or save the document during the “free look” to avoid future charges. IMPORTANT NOTICE Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s Electronic Case Filing Rules & Instructions, documents may be served by electronic means. If you register for electronic service: 1. You will no longer receive documents in the mail; 2. Ifyou do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents; 3. This service does not allow you to electronically file your documents; 4. It will be your duty to regularly review the docket sheet of the case.
1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER Case Locator over the internet. must review the Court’s actual order, decree, or judgment and not rely on the description in the email notice alone. See ECF Rule 4.3 3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s Office at the Court. 500 PEARL STREET | NEW YORK, NY 10007 300 QUARROPAS STREET | WHITE PLAINS, NY 10601
CONSENT TO ELECTRONIC SERVICE I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that: 1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing; 2. I have established a PACER account; 3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents; 4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if I wish to cancel this consent to electronic service; 5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and 6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like to receive electronic service of notices of documents, I must file consent forms for those cases. Civil case(s) filed in the Southern District of New York: Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending and terminated cases. For each case, include the case name and docket number (for example, John Doe v. New City, 10-CV-01234).
Name (Last, First, MI)
Address City State Zip Code
Telephone Number E-mail Address
Date Signature
Return completed form to: Pro Se Intake Unit (Room 200) 500 Pearl Street New York, NY 10007