Duncanson v. Kaizer Developers LLC

AMINATA DUNCANSON, Plaintiff, v. KAIZER DEVELOPERS LLC, doing business as Comfort Suites; MAULIK GAJJER, Supervisor, HR and General Manager; RAJIV SHARNA; NEERAY DEDAUIA; and BAVESH PATEL, Defendants.

No. 3:21-CV-0587 (GTS/ML)

United States District Court, N.D. New York

August 2, 2021

AMINATA DUNCANSON PLAINTIFF, PRO SE

ORDER AND REPORT-RECOMMENDATION

MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE

The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an application to proceed in forma pauperis (Dkt. No. 2) filed by Aminata Duncanson (“Plaintiff”) to the Court for review. For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff's Complaint (Dkt. No. 1) be (1) accepted in part for filing, and (2) dismissed (a) in part with leave to amend and (2) in part without leave to amend.

I. BACKGROUND

Liberally construed, ^[1] Plaintiff's Complaint asserts that her civil rights were violated by Kaizer Developers LLC, doing business as Comfort Suites; Maulik Gajjer, Supervisor, Human Resources and General Manager; Rajiv Sharna; Neeray Dedauia; and Bavesh Patel (collectively “Defendants”) after Defendant Gajjer sexually harassed Plaintiff in the course of her employment at Comfort Suites. (See generally Dkt. No. 1.)

More specifically, the Complaint alleges that on or about May 28, 2019, while Plaintiff worked at Comfort Suites, Defendant Gajjer (Plaintiff's supervisor) engaged in a conversation that made Plaintiff “very uncomfortable.” (Dkt. No. 1 at 3-5.) Plaintiff alleges that Defendant Gajjer (1) asked Plaintiff whether she was single, (2) asked if she lived alone, and (3) stated that “[h]e wanted a sexual relationship” with Plaintiff and that “he would give [her] anything [she] wanted.” (Id. at 5-6.)

Plaintiff alleges that Defendant Gajjer directed her to the stock room to organize but that when Plaintiff arrived at the stock room, Defendant Gajjer closed the door and again told her that he wanted a sexual relationship with her. (Id. at 6-7.) Plaintiff alleges that she looked around the stock room for an escape but that Defendant Gajjer approached and touched her “neck down to [her] breast” and that “he went inside [her] bra[ and] rubbed himself against [her].” (Id. at 7.) Plaintiff alleges that she shook uncontrollably and told Defendant Gajjer “if you gonna do this to me at least let me shower.” (Id.) Plaintiff alleges that when Defendant Gajjer left the stock room to obtain a key to a hotel room, she went to the laundry room to collect her belongings and left for home. (Id. at 7-8.)

Plaintiff alleges that on or about May 29, 2019, she reported the incident to the police and Comfort Suites' human resources department. (Id. at 3, 4, 11.) Plaintiff alleges that the police informed her that all surveillance cameras had been erased. (Id. at 4.) She alleges that while speaking with the head of housekeeping about what happened, “[Defendant Gajjer] saw [them] th[r]ough the surveillance camera[] and called” Plaintiff to his office. (Id. at 11.) Plaintiff alleges that Defendant Gajjer begged for her forgiveness, stated that it would never happen again and that he would feel horrible if she left knowing the obligations she had to her family in Africa. (Id.) Plaintiff alleges that she then went back down to the basement to gather the rest of her belongings and the head of housekeeping told her that she would open the basement door for Plaintiff to leave without seeing Defendant Gajjer. (Id. at 12.)

Based upon the foregoing allegations, the Complaint appears to assert a claim of sexual harassment pursuant to Title VII of the Civil Rights Act of 1964. (See generally Dkt. No. 1.)

As relief, Plaintiff seeks (1) $35, 000.00, (2) for Defendant Gajjer to “be removed from any power position where he can do this again, ” and (3) for “sexual harassment workers education be made available.” (Dkt. No. 1 at 13.)

II. PROCEDURAL HISTORY

On May 21, 2021, Plaintiff commenced this action by filing a verified Complaint and a motion to proceed in forma pauperis. (Dkt. Nos. 1, 2.)

On her form Compliant Plaintiff stated that she “filed charges with the New York State Division of Human Rights, the New York City Commission on Human Rights or Equal Employment Opportunity Commission regarding the alleged discriminatory acts on or about” June 10, 2019. (Dkt. No. 1 at 4.) The Complaint alleges that “[t]he Equal Employment Opportunity Commission issued a Notice-of-Right-to-Sue letter (copy attached) which was received by me on or about” March 23, 2021. (Id. [emphasis in original].) The copy attached to the Complaint of the Equal Employment Opportunity Commission (“EEOC”) right-to-sue letter has the date cut-off, all that is legible is “February 23, 20.” (Id. at 14.) In addition, the right-to-sue-letter appears to have handwritten additions including (1) a circle around the typed “WITHIN 90 DAYS of your receipt of this notice” and (2) the written words “May 23, 2021.” (Id.)

III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).^[2] After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.^[3]

IV. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).

V. ANALYSIS

In addressing the sufficiency of a plaintiff's complaint the court must construe her pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiffs' Complaint with this principle in mind, I recommend that (1) her Title VII claims against Defendants Gajjer, Sharna, Dedauia, and Patel be dismissed without leave to amend, (2) her quid pro quo harassment ...