Grimes v. Sil

FELIX GRIMES, Plaintiff, v. SAMINDRA SIL, et al., Defendants.

19-cv-01066 (AMD) (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 27, 2020

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

The pro se plaintiff filed this employment discrimination action on February 20, 2019 against the New York State Insurance Fund ("NYSIF") and individual defendants. (ECF No. 1.) On June 19, 2019, he filed an amended complaint, naming only the NYSIF. (ECF No. 12.) He alleges that the defendant failed to promote him, did not accommodate his disability, subjected him to unequal terms and conditions of employment and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State Human Rights Law and the New York City Human Rights Law. (Id. at 3-4.) On July 25, 2019, the defendant moved to dismiss the plaintiff's amended complaint. (ECF No. 16.) For the reasons that follow, I grant the motion to dismiss, but grant the plaintiff leave to amend his complaint.

BACKGROUND

The plaintiff was employed by the NYSIF from 1974 until his retirement in April of 2018. (ECF No. 12 at 12.) He claims that the defendant discriminated and retaliated against him because he is an African American. (Id.)

He alleges that he was "placed in situations that . . . diminished [his] career and promotional opportunities as compared to non-African Americans." (Id.) He was promoted several times, but reached a "glass ceiling for African Americans" in December of 1997 when he was promoted to Claims Services Representative II ("CSR II"). (Id.) At that time, there was an African American claims administrator, but there has not been one since. (Id.) He claims that he was not afforded promotional opportunities to become a CSR III because of his race. (Id. at 17.) Individuals that he supervised were promoted, but each time he interviewed for a position "the candidate chosen was not based on skills, but was chosen due to race." (Id.) In one instance, his interview time was changed; interviewer John Massetti appeared for his colleague Samindra Sil's interview but not for his. (Id.) Massetti and Sil "were seen leaving the interview engaged in a personal conversation that consisted of laughter," and Sil was awarded the promotion. (Id.)

The plaintiff also claims that when the Claims Department was divided into two district offices in December of 2016—New York City One and New York City Two—he was assigned to New York City Two, which was "extremely degrading" to him. (Id. at 12.) New York City Two was "mainly comprised of African Americans . . . and personnel that vary from attendance to behavior issues," while New York City One was "populated with the highly efficient and dependable employees." (Id.) Also in December of 2016, the plaintiff asked that his desk be moved next to the window for confidentiality reasons, but "[n]o action was taken." (Id.)

Although he was assigned to New York City Two, the plaintiff supervised personnel in both offices until April of 2017, when he was assigned to supervise a new staff in New York City Two. (Id.) The business manager, John Zenkewich, introduced the plaintiff to his new staff, and said that the plaintiff was there to "whip [them] into shape." (Id. at 12-13.) This comment offended the plaintiff as an African American, because the comment "relates toslavery." (Id. at 13.) The plaintiff was assigned to supervise the "largest" group of employees with "major issues with attendance and other issues," which he considered "unfair." (Id.) He set up meetings from May to June of 2017 with Zenkewich and others "to discuss training, mentoring[,] coaching and development." (Id.) At one meeting on July 12, 2017, Sil—then a CSR III—"became confrontational," and "sham[ed] and threaten[ed]" staff. (Id.) Several employees "were . . . disrespected and threatened." (Id.) Zenkewich did not seek the plaintiff's input about the meeting; the plaintiff "felt that his behavior was racially motivated and [the plaintiff's] opinion as an African American was invalid." (Id.) On August 8, 2017, the plaintiff held another meeting "to present different scenarios [to] improve workflow and brain storm alternatives to correct the inequities of [his] work assignment." (Id.)

On September 18, 2017, Sil sent the plaintiff what he characterizes as a "retaliation memo" "regarding failure to pay an award, transfer case etc." (Id. at 14.) For the plaintiff, "[t]his was the last straw," so he "filed a step one grievance in response to the memo citing retaliation, discrimination, training and disparate impact." (Id.) On November 14, 2017, he met with Zenkewich to discuss his grievance, but the meeting "was one sided." (Id.) On November 28, 2017, the plaintiff—unsatisfied with the outcome of the meeting—filed for step two grievance. (Id.)

The plaintiff maintains that "[t]he retaliation continued." (Id.) On December 1, 2017, he was advised that he was going to be relocated, "despite [his] medical condition." (Id.) He was moved, but returned to his original location after he produced medical documentation. (Id. at 15.) On March 14, 2018, he received another "retaliation memo" because neither he nor an employee under his supervision objected to or processed an award on time. (Id. at 15, 27.) According to the plaintiff, Tom Stoddard, another supervisor, could have objected to orprocessed the award. (Id. at 15.) However, Stoddard, a white male, did not receive a counseling memo. (Id.) The plaintiff met with Zenkewich and told him that it was "discrimination" for him to "refuse to remove" the counseling memo—a memo that he claims he received "because of [his] race." (Id. at 16.) Zenkewich said that the memo was justified. (Id.)

The plaintiff alleges that he was "not provided an incoming work tray" at New York City Two from April of 2017 to April of 2018, but Stoddard was given one when he joined the office. (Id. at 16-17.) Finally, the plaintiff claims that in 2013, he "was counseled for late awards while no other CSR II's were counseled." (Id. at 17.)

STANDARD OF REVIEW

In order to survive a motion to dismiss, a complaint must plead "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 is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted). While "detailed factual allegations" are not required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Because the plaintiff is proceeding pro se, his complaint is held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court "remain[s] obligated to construe a pro se complaint liberally"). Courts consider pro se pleadings liberally, and in the light most favorable to the plaintiff. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "The pleadingrequirements in discrimination cases are very lenient, even de minimis." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998)) (internal quotation marks omitted). Nevertheless, "a complaint's allegations must . . . at least 'permit the court to infer more than the mere possibility of misconduct.'" Richardson v. City of New York, No. 17-CV-9447, 2019 WL 1512646, at *2 (S.D.N.Y. Apr. 8, 2019) (quoting Iqbal, 556 U.S. at 679).

DISCUSSION

The defendant makes six arguments for dismissal: (1) the plaintiff served the defendant thirty-six days past the service deadline; (2) the Eleventh Amendment bars the plaintiff's Section 1981, NYSHRL and NYCHRL claims; (3) the plaintiff did not exhaust his administrative remedies for most of his allegations; (4) most of the plaintiff's claims are time-barred; (5) the plaintiff's amended complaint does not state a Title VII claim for discrimination; and (6) it does not state a Title VII claim for retaliation.¹

I. Service

The defendant argues that dismissal is warranted because the plaintiff served the defendant late and did not show good cause. Under Rule 4(m) of the Federal Rules of Civil Procedure, "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m).

The plaintiff filed this action on February 20, 2019 (ECF No. 1), and served the defendant 126 days later on June 26, 2019 (ECF No. 13), well after the 90-day deadline. The plaintiff amended his complaint before he served the defendant, but "the fact that [he] filed an Amended Complaint . . . does not otherwise extend or enlarge [his] time to effect service." Maldonado v. Country Wide Home Loans, Inc., No. 14-CV-7145, 2016 WL 11481201, at *2 (E.D.N.Y. Jan. 4, 2016) (collecting cases); see also Trujillo v. City of New York, No. 14-CV-8501, 2016 WL 10703308, at *5 (S.D.N.Y. Mar. 29, 2016), aff'd, 696 F. App'x 560 (2d Cir. 2017) ("The filing of an amended complaint . . . does not restart the . . . period for service under Rule 4(m).") (quoting Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 607 (S.D.N.Y. 2012)).

The plaintiff has not shown good cause for his late service. In his opposition, the plaintiff does not mention...