McKenzie v. Big Apple Training Inc.

• Court: District Court, S.D. New York
• Decided: November 17, 2022
• Docket: 1:22-cv-09554
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KELLYANN A. MCKENZIE, Plaintiff, 1:22-cv-9554-GHW -against- ORDER BIG APPLE TRAINING INC., Defendant. GREGORY H. WOODS, United States District Judge: Plaintiff brings this pro se action under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17; the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297; and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 131.1 She alleges that her employer discriminated against her based on her age, religion, and national origin. 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 has the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)

1 Plaintiff paid the filing fees for this action. (citation and internal quotation marks omitted). The Court is obliged, however, to construe pro se pleadings 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). DISCUSSION A. Age Discrimination in Employment Act The ADEA makes it unlawful for an employer to “discharge any individual or otherwise

discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). The ADEA’s prohibitions on age discrimination are “limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 590-91 (2004) (“[T]he ADEA was concerned to protect a relatively old worker from discrimination that works to the advantage of the relatively young”). Plaintiff alleges that she was born in 1986. Dkt. No. 1, ¶ 4. She does not allege any facts in the complaint giving rise to an inference of discrimination because of her age. Because Plaintiff is under 40 years old, she is not protected by the ADEA. The Court therefore dismisses Plaintiff’s ADEA claim for failure to state a claim. B. Title VII of the Civil Rights Act Plaintiff alleges that Defendant discriminated against her based on her American national origin and Seventh Day Adventist religion. Title VII provides that “[i]t shall be an unlawful

employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to her 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). Title VII prohibits employers from mistreating an individual because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), and from retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov’t, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee’s protected characteristic or opposition to unlawful conduct is not actionable under Title VII. See Chukwuka v. City of New York, 513 F. App’x 34, 36 (2d Cir. 2013)

(quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)). At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against h[er], and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. at 87. National origin discrimination Plaintiff’s claim of national origin discrimination is based on the following allegations. In spring 2021, Jackie Bowen, the 70-year-old Jamaican director of Defendant’s school in the Bronx, interviewed and hired Plaintiff as a phlebotomy and EKG instructor. Plaintiff taught several courses. Dkt. No. 1, ¶ 3. On an unspecified date, “Director Jackie Bowen took over a couple of classes, stating [that] students were complaining about Plaintiff.” Id. Eventually, Plaintiff was not

offered a new course to teach. She explains the basis for her claim that the failure to continue her employment was the result of national origin discrimination: Plaintiff believes she was discriminated against because of her national origin (American). Director is Jamaican and although Plaintiff is of Jamaican descent, she is fully aware that Jamaican people do not like American people because of their opportunities for success. Jamaican people are not afforded the same opportunities in Jamaica and have to struggle and fight more. It is for this reason, they have a vendetta against Americans and want to [i]nduce the same struggle and limit their opportunities, as seen in this petition. Id. ¶ 9. These vague allegations that Jamaicans “have a vendetta against Americans” are insufficient to give rise to a plausible inference that Director Bowen, who had hired Plaintiff a few months earlier, discontinued Plaintiff’s employment based on her American national origin. Because Plaintiff fails to plead facts showing that her national origin was a motivating factor in any adverse action, the complaint does not state a Title VII claim for national origin discrimination. Religious discrimination Plaintiff also invokes religious discrimination as a basis for her Title VII claims. She argues that discrimination against her because of her religion caused Defendant not to continue her employment. The sole allegation in the complaint relating to Plaintiff’s religion is the following: Plaintiff was indirectly asked to compromise religious beliefs when Director’s son Mr. Bowen called her and stated that a failing student told him all she needed to do was take an exam to pass the class. [Plaintiff] denied student [the] right to take [the] exam an[d] was appalled that she was even asked that, as Director’s son had access to student records and either knew she was failing, or could have found out but preferred to attempt dishonesty.

Id. ¶ 8.

This allegation is insufficient to show that Plaintiff’s religion as a Seventh Day Adventist “was a motivating factor in the employment decision,” Vega, 801 F.3d at 86. It is not clear from Plaintiff’s allegations that Defendant was aware of Plaintiff’s religious identification as a Seventh Day Adventist, much less that her religion motivated Defendant’s decision not to continue offering her courses to teach. Plaintiff’s complaint thus fails to state a claim that Defendant discriminated against her in employment based on her religion.2

2 It is not clear from the allegations of the complaint that Plaintiff exhausted her claim of religious discrimination in the administrative proceedings, though this is not a pleading requirement. See Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 491 (2d Cir. 2018) (“[T]he burden of pleading and proving Title VII exhaustion lies with defendants and operates as LEAVE TO AMEND Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once

when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid Title VII claim, the Court grants Plaintiff 60 days’ leave to amend her complaint to detail her claims. Plaintiff is granted leave to amend her complaint to provide more facts about her claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and

an affirmative defense.”). In limited situations, claims not raised in administrative proceedings can be deemed to have been exhausted. Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1402 (2d Cir.1993) (claims not raised in an administrative charge can proceed where the conduct complained of would fall within the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.”), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). If Plaintiff repleads her Title VII religious discrimination claim, she may wish to clarify whether she exhausted this claim by raising it in the New York State Division of Human Rights proceedings. d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated her federally protected rights; and how, when, and where such violations occurred; 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 wants to include from the original complaint must be repeated in the amended complaint. CONCLUSION Plaintiff 1s 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 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-9554 (GHW). An Amended Complaint for Employment Discrimination form is attached to this order. No answer shall be required at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief can 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 7” forma pauperis status 1s denied for the purpose of an appeal. Ch. Coppedge v. United States, 369 US. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: November 17, 2022 New York, New York \\ Lo □□ GREOORS H. WOODS 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?

☐ Yes ☐ No

Write the full name of each defendant. The names listed above must be identical to those contained in Section I.

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. 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:

Address

County, City State Zip Code III. CAUSE OF ACTION A. Federal Claims This employment discrimination lawsuit is brought under (check only the options below that apply in your case): ☐ 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): ☐ race: ☐ color: ☐ religion: ☐ sex: ☐ national origin: ☐ 42 U.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: ☐ 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: ☐ 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: ☐ 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 ☐ 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 ☐ Other (may include other relevant federal, state, city, or county law): 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): ☐ did not hire me ☐ terminated my employment ☐ did not promote me ☐ did not accommodate my disability ☐ provided me with terms and conditions of employment different from those of similar employees ☐ retaliated against me ☐ harassed me or created a hostile work environment ☐ 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. 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? ☐ Yes (Please attach a copy of the charge to this complaint.) When did you file your charge? ☐ No Have you received a Notice of Right to Sue from the EEOC? ☐ 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? ☐ No VI. RELIEF The relief I want the court to order is (check only those that apply): ☐ direct the defendant to hire me ☐ direct the defendant to re-employ me ☐ direct the defendant to promote me ☐ direct the defendant to reasonably accommodate my religion ☐ direct the defendant to reasonably accommodate my disability ☐ direct the defendant to (specify) (if you believe you are entitled to money damages, explain that here) 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)

I have read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically: ☐ Yes ☐ No 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. Gs sre > E@® . . . (>) □□ \\ United States District Court Southern District of New York □□ 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 fora 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. 2 You 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 Civil casmeu(sst) ffiillee cdo inns ethnet fSoorumtsh feorrn t hDoissetr ciacts eosf. 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