Furfero v. St. John's University

ARLENE JOYCE FURFERO, Plaintiff, v. ST. JOHN'S UNIVERSITY, et al., Defendants.

No. 20-cv-2395 (BMC) (LB)

United States District Court, E.D. New York

July 2, 2021

MEMORANDUM DECISION AND ORDER

BRIAN M . COGAN U.S.D.J.

Plaintiff pro se brings this employment discrimination action under Title VII, the Age Discrimination in Employment Act and corresponding provisions of state law, alleging that she has been discriminated against, subjected to a hostile work environment, and retaliated against by her employer defendant St. John's University, and ten administrators because of her age (73) and gender (female). It is before me on defendants' motion to dismiss the amended complaint. The issue is whether she has alleged sufficient facts to raise a plausible inference that the things that happened to her that she doesn't like resulted from an animus that defendants have against her based on her age or gender. The motion is granted in part and denied in part for the reasons set forth below.^[1]

SUMMARY OF AMENDED COMPLAINT

Plaintiff's single-spaced, 25-page amended complaint alleges that she has been teaching at St. John's University since 1980 in the Economics and Finance Department of the College of Business Administration, becoming a tenured Associate Professor in 1985. Most of the paragraphs in the amended complaint (like its predecessor) are unnumbered, but under the heading “Material Adverse Employment Actions, ” plaintiff has alleged twelve numbered claims of alleged mistreatment that she thinks were based on her age, gender, or retaliation for complaints about her mistreatment. Each of these twelve claims will be discussed below.

DISCUSSION

I. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a pleading must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks and citations omitted). Said otherwise, plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

In conducting the above analysis, the Court must accept as true all the well-pled allegations contained in the complaint. Iqbal, 556 U.S. at 678. But this tenet “is inapplicable to legal conclusions.” Id. “[D]etailed factual allegations” are not required, but “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

Where, as here, there is no direct evidence of discrimination, a plaintiff's Title VII and ADEA claims “must be plausibly supported by facts alleged in the complaint [] that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). To be clear, plaintiff need not at this stage allege facts that “give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination”; she must only plead facts that “give plausible support to a minimal inference of discriminatory motivation.” Id.; see also Polanco v. City of New York, No. 16-cv-09196, 2018 WL 3178225, at *4 (S.D.N.Y. June 27, 2018) (“Although an employment discrimination plaintiff need not plead a prima facie case of discrimination in order to survive a motion to dismiss, a plaintiff must allege sufficient facts showing that [she] is entitled to relief.”) (quoting Bermudez v. City of New York, 783 F.Supp.2d 560, 575 (S.D.N.Y. 2011)) (cleaned up).

Ordinarily, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Such pleadings are “to be liberally construed, ” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), and interpreted “to raise the strongest arguments that they suggest, ” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In the instant case, however, the special solicitude to which a pro se plaintiff is normally entitled is tempered by the fact that plaintiff is an attorney. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 86 n.4 (2d Cir. 2001) (“We note, however, that pro se attorneys such as [the plaintiff] typically ‘cannot claim the special consideration which the courts customarily grant to pro se parties.'”) (quoting Harbulak v. County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)). The Second Circuit has suggested that the amount of solicitude to which a pro se plaintiff-attorney is entitled, if any, may vary from case to case. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[T]he appropriate degree of special solicitude is not identical with regard to all pro se litigants.”).

Here, defendants assert that plaintiff is not entitled to leeway in drafting her pleadings, relying on Finn v. Anderson, 592 Fed.Appx. 16, 20 (2d Cir. 2014) (“While a court is ordinarily obligated to afford a special solicitude to pro se litigants in construing their pleadings, pro se attorneys typically cannot claim that special consideration.”) (internal quotation marks and citations omitted). They note that plaintiff is a licensed attorney who represents litigants in both federal and state court. See King v. Marco Eugene Trucking Company, No. 98-cv-5077, 2002 WL 32096574 (E.D.N.Y. Feb. 15, 2002) (representing a defendant trucking company in a dispute over employee benefit fund contributions); Obi v. Amoa, 58 Misc.3d 446, 63 N.Y.S.3d 208 (Sup. Ct. Kings Co. 2017) (representing the plaintiff, a college professor, in a tort action against six named defendants).

Plaintiff responds that she is inexperienced in litigation. She received her economics degree in 1980, but her law degree in 1996. She describes her legal practice as a “small, part-time solo practice out of her house.” Her practice is mostly transactional and she has no secretarial or clerical help. Most of her litigation practice is in the state courts, and the King case cited above was her last appearance in federal court. She has been involved in three employment discrimination lawsuits against the University previously, but hired counsel to represent her in each.

As to the degree of solicitude, if any, to which plaintiff is entitled, I think plaintiff's practice and experience as a lawyer is not as probative as the papers she has submitted in this case. Both her pleadings and her opposition to defendants' motion are only marginally more professional than employment discrimination pleadings and submissions that the average non-lawyer, pro se litigant submits in this district. As is typical of pro se employment discrimination cases, the amended complaint is more of a diatribe than a legal pleading, and accuses everyone who did something she didn't like of harboring a discriminatory intent.

Her submissions suggest that plaintiff does not have much familiarity with federal civil procedure or employment discrimination law. I am therefore inclined to review them the same way that pro se papers are reviewed, in the manner Iqbal suggests. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (even “a pro se complaint must state a plausible claim for relief”). That is, the Court must disregard argument and innuendo, and attempt to separate out factual allegations from plaintiff's personal feelings and beliefs. That requires a high level of indulgence, even if not precisely the same amount that a non-lawyer pro se litigant would receive.

II. Analysis of Each Claim for Relief

The amended complaint is very long on argument, characterizations, and conclusions, but very short on factual allegations. As noted above, in analyzing the claims below, I have disregarded plaintiff's beliefs and conclusions, as required under a Rule 12(b)(6) analysis. See Iqbal, 556 U.S. at 678. The subheadings below are taken verbatim from the amended complaint.

To the extent some of these claims do not cross the line from possibility to probability, I am not ruling that plaintiff will be precluded from offering evidence of some of the facts alleged in these claims as evidence of intent as to other claims that do survive. I am dismissing the insufficient claims solely because they do not provide a discrete basis for recovery.

A. First Claim: “First discriminatory Article 10.01 action”

This claim arises out of a disciplinary letter sent to plaintiff by defendant Dr. Charles Clark. Two students had accused plaintiff of “berat[ing]” and “threaten[ing]” them over the use of a room. The claim alleges that Dr. Clark, based on these complaints, and without hearing plaintiff's side of the story, found her to have engaged in “conduct inconsistent with accepted professional and moral standards.” Plaintiff does not believe that the violation of such standards is an “academic issue”...