Malcolm v. Ass'n of Supervisors & Adm'rs of Rochester

388 F. Supp. 3d 242
CourtDistrict Court, W.D. New York
DecidedJuly 11, 2019
Docket17-CV-6878L
StatusPublished
Cited by3 cases

This text of 388 F. Supp. 3d 242 (Malcolm v. Ass'n of Supervisors & Adm'rs of Rochester) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malcolm v. Ass'n of Supervisors & Adm'rs of Rochester, 388 F. Supp. 3d 242 (W.D.N.Y. 2019).

Opinion

DAVID G. LARIMER, United States District Judge

INTRODUCTION

Bernice C. Malcolm ("plaintiff") once again has commenced suit against her employer the Rochester City School District ("RCSD") alleging violations of federal and state laws. Malcolm is a known litigant in this Court. She is well-known because she is a demonstrable, abusive litigant. This case and two similar cases in this district (Malcolm II (17-CV-6873); Malcolm III (18-CV-6450)) against essentially the same defendants, raise the same or similar claims and all will be dismissed in three separate decisions; filed this date. For several reasons, all of these cases lack merit both procedurally and substantively.

Plaintiff has been sanctioned previously by this Court for filing repetitive and frivolous lawsuits. See Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist. , 737 F. Supp. 2d 117, 120-21 (W.D.N.Y. 2010). Because of her demonstrated history of filing frivolous and harassing litigation, plaintiff was enjoined from filing any other action against the Honeoye Falls-Lima School District and its employees without obtaining prior leave of court. Malcolm v. Bd. of Educ. Of the Honeoye Falls-Lima Cent. Sch. Dist. , 737 F. Supp. 2d 117, 120-21 (W.D.N.Y. 2010). In fact, plaintiff sought such relief which was denied by this Court on two occasions. Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist. , 278 F. Supp. 3d 677, 678 (W.D.N.Y. 2017) ;

*248Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist. , No. 11-CV-6509, 2011 WL 13128613, at *1-2 (W.D.N.Y. Oct. 27, 2011), aff'd 517 F. App'x 11 (2d Cir. 2013).

As will be discussed below, and in the two other decisions decided today, plaintiff has proceeded against her present employer and a related union just as she had against the Honeoye Falls-Lima School District.1

One of the claims in this present lawsuit is that plaintiff was laid off based on improper considerations of age and race. There were approximately 22 employees (CASE employees) who suffered the same fate. As will be discussed, many of those employees were also over the age of 40, hence covered by the Age Discrimination and Employment Act. A few were also African-American, as is plaintiff, but the majority were Caucasian. No discriminatory animus is evident.

Furthermore, it is worth noting, as will be pointed out below, that plaintiff and the other laid off employees eventually were later contacted and reemployed. In fact, although plaintiff persists in this litigation, she also has been reemployed and remains with the Rochester City School District to date.

Plaintiff is proceeding pro se and as such she is entitled to some accommodation because of that status. This plaintiff though has abused that position repeatedly.

The fact that plaintiff has filed three separate lawsuits against the Rochester City School District and the related union is of note. Two of the lawsuits are virtually carbon copies of the other. Some paragraphs of the complaint appear to simply be copies of a prior pleading and placed in the second lawsuit. Malcolm v. Rochester City Sch. Dist. , No. 17-CV-6873 (W.D.N.Y. 2017); see also Malcolm v. Rochester City Sch. Dist. , No. 18-CV-6450 (W.D.N.Y. 2018).

As further evidence of plaintiff's harassing tactics, she has filed not one, but five separate claims before the New York State Division of Human Rights. There is no need for that. Several of these matters before the State Division appear to remain unresolved which, as will be discussed, necessitates dismissal of some of the claims.

Plaintiff has created a cottage industry of litigation concerning employers and school districts that have employed her. Plaintiff was sanctioned in the *249Honeoye Falls-Lima cases because there she had filed a total of four lawsuits in federal court and at least one in state court against the same district. Malcolm v. Bd. Of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist. , 737 F. Supp. 2d 117, 120-21 (W.D.N.Y. 2010) aff'd 506 F. App'x 65, 70 (2d Cir. 2012). All those actions were dismissed and to the extent plaintiff appealed, they were all affirmed.2

Counsel for defendants and this Court are forced to spend a not inconsiderable amount of time dealing with a flurry of cases before agencies and the Court involving baseless arguments, many of which are not responded to or pursued once defendants raise legal challenges on either a motion to dismiss or summary judgment. Such activity must stop.

PLAINTIFF'S THREE ACTIONS AGAINST THE RCSD AND ITS EMPLOYEES

This action filed on December 20, 2017 is against the RCSD, its then-Superintendent of Schools and a union (ASAR) representing plaintiff and others (Malcolm I ).

A second action, 17-CV-6872 (Malcolm II ) was filed on December 19, 2017, virtually the same day as Malcolm I. This is essentially a copycat pleading to Malcolm I , and is also against the RCSD, but different employees than were enumerated in Malcolm I . Finally, on June 18, 2018, plaintiff filed a third action (18-CV-6450 (Malcolm III )) against the RCSD and its then-Superintendent.

All these cases must be dismissed and will be discussed separately in the other decisions filed today.

BACKGROUND: MALCOLM I

Plaintiff, proceeding pro se , brings this action against defendants Association of Supervisors and Administrators of Rochester ("ASAR"), its President, Timothy Cliby ("Cliby"), and Vice President, John Rowe ("Rowe"), as well as the RCSD and its superintendent, Barbara Deane-Williams ("Deane-Williams"). Plaintiff alleges defendants discriminated against her with respect to her employment in violation of the Labor Management Relations Act § 301 ("LMRA"), 29 U.S.C. § 185 ; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act of 1967 ("ADEA"), 42 U.S.C. § 1988

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388 F. Supp. 3d 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malcolm-v-assn-of-supervisors-admrs-of-rochester-nywd-2019.