Glasgow v. Cnyrta/Centro, Inc.

MARY ELIZABETH B. GLASGOW, Plaintiff, v. CNYRTA/Centro, Inc., et al., Defendants.

5:18-CV-721 (GTS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

October 19, 2018

MARY ELIZABETH B. GLASGOW, Plaintiff pro se

ANDREW T. BAXTER, United States Magistrate Judge

REPORT-RECOMMENDATION

The Clerk has sent to the court for review an amended complaint, filed by plaintiff in response to this court's July 12, 2018 Order and Report-Recommendation ("ORR") and the District Court's approval of that recommendation on September 12, 2018. (Dkt. Nos. 4, 6). In my July 12, 2018 ORR, I granted plaintiff's application to proceed in forma pauperis based on her financial eligibility. (Dkt. No. 4 at 1).

However, I also stated that in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiffs' complaint under the above standards, keeping in mind that pro se pleadings are interpreted to raise the strongest arguments they suggest. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

Plaintiff has now filed a proposed amended complaint which I will review based on the above standards.

II. Facts

In her original complaint, plaintiff filed four separate form-complaints, essentially claiming that the Central New York Regional Transportation Authority/CENTRO, Inc. ("CENTRO") improperly terminated plaintiff and caused hersubstantial damages. (Complaints ("Compl.") (Dkt. No. 1). These original complaints contained claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626 (c)(1), 42 U.S.C. § 1983, and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics ("Bivens"), 403 U.S. 388 (1971). In my July 12, 2018 ORR, I reviewed each of the documents that plaintiff filed in an attempt to determine whether plaintiff stated any claims for relief under any of the statutes reflected in the form-complaints. (Dkt. No. 4)

In my initial review, I found that plaintiff failed to state claims under each of the statutes, and also failed to state a claim under Bivens. I recommended dismissing, without prejudice, many of plaintiff's claims, and recommended giving her the opportunity to amend with respect to the Title VII, ADEA, and 1983 claims. I also recommended dismissing the complaint with prejudice to the extent that plaintiff made any claims under Bivens. (Dkt. No. 4). I also noted that plaintiff neglected to file her Right-to-Sue Letter.

Plaintiff's amended complaint has cured some of the problems with the original, but has created other issues. She has properly omitted any claims based on Bivens and has filed her Right-to-Sue Letter, dated March 21, 2018 in support of her Title VII and ADEA claims. (Proposed Amended Complaint ("PAC") Dkt. No. 7 at CM/ECF p.31).¹ Plaintiff has still filed separate form-complaints: one asserting age discrimination (Dkt. No. 7 at CM/ECF pp. 1-4); one for section 1983 claims (Dkt. No. 7 at CM/ECF pp.5-8);and the third one for Title VII violations (Dkt. No. 7 at CM/ECF pp.9-13). Plaintiff has also attempted to clarify her allegations by adding a substantial number of hand-written pages. (Dkt. No. 7 at CM/ECF pp.14-30). Plaintiff has also eliminated any individual defendants.

III. Age Discrimination

A. Legal Standards

Under the ADEA, the plaintiff must show that she belonged to a protected class, she was qualified for the position that she held or that she sought, she suffered an adverse employment action, and the adverse employment action occurred under circumstances giving rise to the inference of discriminatory intent. Cargian v. Breitling USA, Inc., No. 15 Civ. 1084, 2016 WL 5867445, at *3 (S.D.N.Y. Sept. 29, 2016) (quoting Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012), appeal filed, (2d Cir. Oct. 24, 2016). Plaintiff has the burden to show that age was the "but for" cause of the challenged employer decision. Testa v. CareFusion, No. 14-CV-5202, 2018 WL 1611378, at *5 (E.D.N.Y. Apr. 3, 2018) (citing inter alia Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 (2009) (holding that under the ADEA a plaintiff cannot establish disparate treatment by proving that age was simply a motivating factor in the adverse decision)).

B. Application

Plaintiff has failed to correct the deficiencies in her original complaint with respect to any claims for age discrimination. She states in her form-complaint that she is 50+, so she is in the protected class.² However, neither her form-amended complaint,nor her additional handwritten pages contain any factual allegations which would associate her termination or her allegedly poor treatment with her age. In the form-complaint she states that there were incorrect sizes/material choices for her uniforms and that she was "restricted to buy uniforms which are sabotaged by Natasha Randall." "'Skirts'" were "discontinued in choices for Centro." (PAC at CM/ECF p.3). In the same paragraph, plaintiff mentions that her wage records were "included in the scenario," that no formal complaints got past the "Operations Dept.," and [n]o management assistance abuses allowed." (Id.)

In her handwritten pages, plaintiff mentions uniforms, and there is a cryptic reference on one page in which plaintiff states that someone named Waverly Farson, who was the retired head of security for CENTRO, was in a "personal dispute over [plaintiff's] driving aptitude." (PAC at CM/ECF p.16). Plaintiff then adds a sentence fragment that does not mean anything: "Due to age, cultural appearance ("the skirt"), minimal articulations." (Id.) Plaintiff also states that "[t]hus challenged he rode my route that shift as if a passenger." (Id.) Plaintiff ultimately states that this individual "highly approved of [her] judgement and actions. [sic] as well as verbalizing instructions to [a] passenger." (Id.) Other than the passing, vague reference to age, in a sentence fragment,³ there is no allegation that any of the defendant's actions were taken because of plaintiff's age or that she was treated differently than an individual who wasnot in the protected class.

Once again, plaintiff's allegations are vague, and although she has also checked the box on the complaint form, indicating that she was subjected to "retaliation," plaintiff does not state how any defendant retaliated against her for opposing a practice made unlawful by the statute. See 29 U.S.C. § 623(d) (prohibiting retaliation by an employer or a labor union). Thus, plaintiff has failed to cure the defects in her original complaints to state a claim under the ADEA or to properly allege any retaliation claim in the context of age discrimination.⁴

IV. Section 1983

A. Legal Standards

1. Legal Standards

Section 1983 provides, in relevant part, that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .

42 U.S.C. § 1983. Section 1983 itself does not create substantive rights, rather, it provides a "'method for vindicating federal rights elsewhere conferred.'" Fiedler v. Incandela, 222 F. Supp. 3d 141, 156 (E.D.N.Y. 2016) (quoting Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In order to state a claim under section 1983, the plaintiff must allege the deprivation of rights, privileges, or immunities secured by the Constitution or otherfederal laws, committed by a person acting under color of state law. Id. (quoting Hawkins v. Nassau Cty. Corr. Facility, 781 F. Supp. 2d 107, 111 (E.D.N.Y. 2011).

In my July 12, 2018 ORR, I discussed plaintiff's attempt to make an equal protection argument. To the extent that plaintiff seeks to bring an Equal Protection claim based on the allegations in her original complaints, I noted that, section 1983 could be available as a basis for such a claim. (Dkt. No. 4 at 14-15). See Garrido v....