Long v. Corning Inc.

VICTOR M. LONG, JR., Plaintiff, v. CORNING INCORPORATED, Defendant.

Case # 19-CV-6422-FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 26, 2020

DECISION AND ORDER

INTRODUCTION

Pro se Plaintiff, Victor M. Long, Jr., brings this action pursuant to Title VII of the Civil Rights Act and New York State Human Rights Law ("NYSHRL") for employment discrimination and retaliation and a hostile work environment based on race and religion. Plaintiff also alluded to discrimination and retaliation claims under the Americans with Disabilities Act ("ADA").¹ ECF No. 1. Defendant Corning Incorporated has brought a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. ECF No. 10. For the reasons that follow, Defendant's motion is GRANTED.

LEGAL STANDARD

A party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In reviewing such a motion, a court "must accept as true all of the factual allegations contained in the complaint," Bell Atl. Corp. v. Twombly, 550U.S. 544, 572 (2007), and "draw all reasonable inferences in Plaintiff's favor." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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 application of this standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

A court must liberally construe pro se pleadings, but such pleadings must still meet the notice requirements of Federal Rule of Civil Procedure 8. Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004). "Specific facts are not necessary," and the plaintiff "need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quotation and citation omitted).

Generally, a court will give a pro se plaintiff a chance to amend or be heard before dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quotation and citation omitted). However, a court may properly deny leave to amend pleadings where amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

BACKGROUND

In February 2018, while employed by Defendant as a CVD Module Supervisor, Plaintiff alleges he met with "upper level management" to discuss his first 90 days in that role. ECF No. 1 at 5. During that meeting, he communicated health issues he had from an unspecified chronicillness, which was exacerbated by stress and would require surgery. ECF No. 1 at 5. Plaintiff also complained about other employees creating a hostile work environment and asked for unspecified accommodations to assist him in performing the essential functions of his job. ECF No. 1 at 5. Plaintiff alleges he was retaliated against for bringing his health and work issues to light by being placed on a performance improvement plan ("PIP") in March 2018. ECF No. 1 at 3, 5.

Plaintiff had surgery in early May 2018. ECF No. 1 at 7. Plaintiff returned to work on May 14, 2018 and was fired that day. ECF No. 1 at 7. Plaintiff signed a contract which included a separation agreement, acceptance of severance offer, and a general release (collectively, the "Separation Agreement") on May 28, 2018. ECF No. 1 at 19-21. The Separation Agreement released Defendant from, inter alia, any Title VII, Americans with Disabilities Act ("ADA"), and "any other federal or state law" claims Plaintiff had against it and gave Plaintiff twelve weeks of severance pay. ECF No. 1 at 19, 21. Plaintiff had two weeks to consult with an attorney before signing, and seven days after signing to revoke the agreement. ECF No. 1 at 20. Plaintiff met with Defendant's employment lawyer a day after signing the agreement. ECF No. 1 at 5, 7. Plaintiff claims he "was of myself but not in [a] due state of mind to sign" the Separation Agreement and that he signed it under duress. ECF No. 1 at 3.

Plaintiff filed his claims with the New York State Division of Human Rights ("NYSDHR"). ECF No. 1 at 22-23. The NYSDHR found that Plaintiff signed a valid release of his claims against Defendant. ECF No. 1 at 22. Plaintiff's NYSDHR complaint was also filed with the EEOC pursuant to Title VII and the Age Discrimination in Employment Act ("ADEA") only. ECF No. 1 at 23. Plaintiff then filed the present action. ECF No. 1.

DISCUSSION

Defendant argues that Plaintiff's claims are barred by the Separation Agreement he signed (ECF No. 10-1 at 14-20) and that, in any event, Plaintiff has not met the pleading standard for asserting his claims. ECF No. 10-1 at 25-35. Plaintiff added more facts in his response to Defendant's motion which he argues satisfies the pleading standard.² See ECF No. 13. Plaintiff also argues he lacked capacity to sign the Separation Agreement. ECF No. 1 at 3, 5. The Court agrees with Defendant.

I. Plaintiff's Failure to Plead Title VII Claims

A. Plaintiff's Title VII Discrimination Claims

On a motion to dismiss a Title VII discrimination claim, "a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his 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, 87 (2d Cir. 2015).

Plaintiff's claims for discrimination based on race and religion both must fail because he has not stated either his race or his religion anywhere in the Complaint. ECF No. 1. Moreover, leaving aside the question of whether required adherence to a PIP is an adverse employment action, the Complaint fails to allege how Plaintiff's race or religion could be construed as a motivating factor for the PIP. See Rissman v. Chertoff, No. 08 Civ. 7352(DC), 2008 WL 5191394, at *2 (S.D.N.Y. Dec. 12, 2008) (complaint in which plaintiff did not "allege any facts establishing thatthis mistreatment was prompted by animus towards him because of his race, religion, or age" could not establish Title VII discrimination claim).

Though Plaintiff checked the boxes on the Court-provided pro se complaint form for racial and religious discrimination, without more, "[m]erely checking off boxes . . . does not wholly satisfy [P]laintiff's burden under the Federal Rules of Civil Procedure. Plaintiff must still provide such facts 'showing that the pleader is entitled to relief.'" Edwards v. Sheehan Memorial Hosp., No. 99-CV-0489E(SR), 2000 WL 914131, at *2 (W.D.N.Y. June 19, 2000) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff has failed to do so here. Defendant's Motion to Dismiss it GRANTED with respect to Plaintiff's Title VII discrimination claims.

B. Plaintiff's Title VII Retaliation Claim

Plaintiff bears the burden of establishing a prima facie case of retaliation. Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir. 2015). Plaintiff must show "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Id. at 316.

Plaintiff's claim fails on the third element. Plaintiff's description of the PIP—that he "asked HR to be a mediator to assist in development of key components of the PIP" and that the "PIP [was] completed and set to commence once [Plaintiff] returned to work from surgery" (ECF No. 1 at 7)—indicates that the PIP would have required Plaintiff to follow a series of requirements, and did not affect his promotion or compensation opportunities.

Being placed on such a PIP is not an adverse employment action for purposes of a Title VII retaliation claim. Brown v. Am. Golf Corp., 99 F. App'x 341, 343 (2d Cir. 2004) (summary order); see Zoll v. Northwell Health, Inc., 16-CV-2063 (JMA) (AYS), 2019 WL 2295679, at *14(E.D.N.Y. May 30, 2019) ("The Second Circuit has also held, in the context of a Title VII retaliation claim, that being placed on a 'performance improvement plan' or 'PIP' which requires an employee to abide by certain instructions for a period of time to avoid termination, does not constitute an adverse action." (citing Brown, 99 F. App'x at 343)).

Accordingly, Defendant's Motion to Dismiss is GRANTED with respect to Plaintiff's Title VII retaliation claim.

C. Plaintiff's Title VII Hostile Work Environment Claim

A prima facie case of a hostile work environment claim involves two showings: (1) that the complained-of conduct "was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'"; and (2) that there are grounds to hold the employer liable for the harassing employee's conduct. Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). "It is axiomatic that the plaintiff also must show that the hostile conduct occurred because of a protected characteristic." Id. Plaintiff again fails to make the requisite showing.

All Plaintiff says is that at his meeting with upper level management, he "complained about process assistants & CVD technician creating a hostile work environment." ECF No. 1 at 5. It cannot be gleaned from Plaintiff's Complaint what, if any, conduct could have created a hostile work environment here or to what protected class any purported conduct could have related. There is also no indication of the pervasiveness or duration of the unspecified conduct or how Defendant is liable for the conduct of...