Acevedo v. Harvard Maint. Co.
| Decision Date | 31 March 2021 |
| Docket Number | 20-cv-721 (AJN) |
| Parties | Marcos Acevedo, Plaintiff, v. Harvard Maintenance Co., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Pro se Plaintiff Marcos Acevedo brings this employment discrimination action against Defendants Harvard Maintenance Co. and Servete Drazhi.1 Now before the Court is Defendants' unopposed motion to dismiss the complaint. For the reasons set forth below, Defendants' motion is GRANTED in part.
The Court begins by providing the factual and procedural background leading to this motion to dismiss. For the purpose of evaluating this motion to dismiss, all plausible allegations in the amended complaint are accepted as true, and all reasonable inferences are drawn in Plaintiff's favor. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). Further, because Mr. Acevedo is proceeding pro se, the Court reads his papers "liberally" and"interpret[s] them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The facts in this section are taken from the Complaint and from documents of which the Court can properly take judicial notice at this stage, including matters of public record. See Johnson v. City of New York, No. 12-CV-4431 (KPF), 2013 WL 6171937, at *1 (S.D.N.Y. Nov. 25, 2013).
Plaintiff Marcos Acevedo worked for Harvard Maintenance from 2017 was employed as a porter by Harvard from 2017 until his employment was terminated in December 2018. See Dkt. No. 2 ("Compl.") at 3, 5, 11. On July 18, 2018, Plaintiff filed a complaint with the New York State Division of Human Rights (NYSDHR) charging Harvard Maintenance with an unlawful discriminatory practice relating to employment because of age, and race/color in violation of the New York State Human Rights Law. See Dkt. No. 15-6 at 1-2.2 After investigating and reviewing the information and evidence, the NYSDHR concluded that there was "NO PROBABLE CAUSE to believe that the Respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." Id. at 1.
On December 13, 2018, Plaintiff was at work when a co-worker insulted him in Spanish. Id. at 11. He reported the incident to his supervisor, Defendant Servete Drazhi, and to Local 32BJ, SEIU, his union. Id. The next day, Plaintiff was handed a Christmas bonus check. Id. He rejected the check, saying that he did not feel appreciated by his employer. Id. Drazhi took Plaintiff aside and asked him why he didn't take the check. Id. He told her that over the years, he had been harassed by "Taconic Managements Building Security (Allied Universal Security),"and he indicated that his "supervisors, painters, and coworkers" at Harvard Maintenance also harassed him in order to "get rid of [him]." Id. Plaintiff was fired in December 2018. Id. at 3, 5.
Plaintiff then filed a complaint with the NYSDHR on December 20, 2018 alleging that Harvard Maintenance unlawfully discriminated against him on the basis of his age, marital status, race, sexual orientation, and retaliated against him in violation of the NYSHRL. See Dkt. No 15-5 at 1.3 After investigating, the NYSHDR rejected Plaintiff's claim, finding that there was a lack of evidence in support of Plaintiff's employment discrimination claim on the basis of age, race, national origin, marital status, or sexual orientation and concluding that none of those characteristics were factors in Plaintiff's termination. Id. at 1-2.
Plaintiff filed this lawsuit on January 4, 2020. See Dkt. No. 2. On May 4, 2020, Defendants filed the present motion to dismiss. Dkt. No. 14. Along with their motion to dismiss, Defendants filed a declaration with a number of documents, including an arbitration agreement and the NYSDHR orders described above, see Dkt. No. 15; their memorandum of law in support of their motion to dismiss, see Dkt. No. 16 ("Def. Br."); and a notice pursuant to Local Rule 12.1, which advised the Plaintiff that the Court may convert the present motion into a motion for summary judgment, see Dkt. No. 17. The Court subsequently notified Plaintiff that he could amend his Complaint and explained that failure to do so could constitute a waiver to fix any deficiencies made apparent by the Defendants' briefing. Dkt. No. 19. The Court then twice extended sua sponte Plaintiff's time to respond to the motion to dismiss, warning Plaintiff of theconsequences of failing to oppose Defendants' motion. Dkt. Nos. 23, 24. On September 11, 2020, Plaintiff wrote to the Court requesting an extension until March 2021 to serve his opposition. Dkt. No. 25. The Court concluded that such a long extension was unwarranted, but in deference to Plaintiff's pro se status extended the deadline to respond to the motion until November 11, 2020. Dkt. No. 26. In doing so, the Court again warned Plaintiff that failure to submit his opposition by that time would result in the Court deeming Defendants' motion unopposed. Id. As of today, the Court has not received an opposition to the motion to dismiss from Plaintiff.
Although Plaintiff has not opposed the Defendant's motion, that failure alone is not grounds for dismissal; "the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law." McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). The Court must therefore evaluate Plaintiff's complaint and determine whether it survives the Defendant's motion. Because Plaintiff is proceeding pro se, his submissions "must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).
A Rule 12(b)(1) motion is a threshold challenge to this Court's subject-matter jurisdiction. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "[A] claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted). When resolving a Rule 12(b)(1) motion, "[t]he court must take all factsalleged in the complaint as true and draw all reasonable inferences in favor of plaintiff," but "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Id. (citations and internal quotation marks omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Whitmore v. Ark, 495 U.S. 149, 154 (1990) (). "[U]nder Rule 12(b)(1), [a court is] permitted to rely on non-conclusory, non-hearsay statements outside the pleadings." M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013). And "a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient." Frisone v. Pepsico Inc., 369 F. Supp. 2d 464, 469 (S.D.N.Y. 2005) (citation omitted). See also Lleshi v. Kerry, 127 F. Supp. 3d 196, 199 (S.D.N.Y. 2015).
To survive a motion to dismiss under Rule 12(b)(6), meanwhile, "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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While well-pleaded factual allegations must be accepted as true, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). Therefore, in assessing whether a pleading states a plausible claim to relief, courts disregard legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
Because the Court deems it proper to convert Defendants' motion into one for summary judgment on the Title VII claim against Harvard Maintenance, it applies the summary judgment standard. Summary judgment shall be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, a court views all evidence in the light most favorable to the non-movant, Overton v. NY. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and "resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the party against whom summary judgment is sought," Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Plaintiff asserts that Defendants discriminated against him on several grounds, including race, age, and sexual orientation. He also alleges retaliation. He brings his claims under Title VII, the ADEA, and the NYCHRL. See Compl. at 3. For the reasons that follow, the Court dismisses the NYCHRL and the ADEA claims against both Defendants, and the Title VII claim...
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