Anderson v. Davis Polk & Wardwell LLP

• Decision Date: 06 March 2012
• Docket Number: No. 10 Civ. 9338(NRB).,10 Civ. 9338(NRB).
• Citation: 850 F.Supp.2d 392
• Parties: Donovan ANDERSON, Plaintiff, v. DAVIS POLK & WARDWELL LLP, Lawrence Jacobs, individually and as Managing Attorney, Jennifer Candelario, individually and as Assistant Managing Attorney, Lamina Vucetovic, individually and as Managing Clerk, Robert Jones, Duane Grant, Emmanuel Fashakin, and 1–100 unknown employees of DPW, in both their individual and official capacities, Defendants.
• Court: U.S. District Court — Southern District of New York

850 F.Supp.2d 392

Donovan ANDERSON, Plaintiff,

v.DAVIS POLK & WARDWELL LLP, Lawrence Jacobs, individually and as Managing Attorney, Jennifer Candelario, individually and as Assistant Managing Attorney, Lamina Vucetovic, individually and as Managing Clerk, Robert Jones, Duane Grant, Emmanuel Fashakin, and 1–100 unknown employees of DPW, in both their individual and official capacities, Defendants.

No. 10 Civ. 9338(NRB).

United States District Court, S.D. New York.

March 6, 2012.

Donovan Anderson, Brooklyn, NY, for Plaintiff.

Barry Asen, Esq., Lauren A. Malanga, Esq., Epstein Becker & Green, P.C., New York, NY, for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

Donovan Anderson (the “plaintiff”) files suit against his former employer, Davis Polk & Wardwell LLP (“DPW”), and various of his former supervisors and colleagues (collectively, the “defendants”), bringing claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., as amended (the “ADEA”), the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended (the “FLSA”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYSHRL”), the New York City Human Rights Law, N.Y. City Admin. Code § 8–101 et seq. (the “NYCHRL”) and the New York State Labor Law § 650 et seq. (the “NYSLL”). In particular, plaintiff alleges: (1) sexual harassment; (2) gender discrimination in connection with his terms of employment; (3) age discrimination in connection with his termination; (4) failure to compensate in connection with overtime and unreimbursed expenses; (5) sexual-orientation discrimination; (6) retaliation in connection with an internal complaint; (7) failure to promote; and (8) race discrimination. Pending before the Court are defendants' motions pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all of plaintiff's claims with the exception of certain of his sexual harassment claims against DPW, Jennifer Candelario, Robert Jones, and Duane Grant and pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to strike certain immaterial, impertinent, and scandalous allegations from plaintiff's amended complaint. For the reasons stated below, defendants' motions are granted in part and denied in part.

II. Background¹

Plaintiff, who is a heterosexual black male, was born on July 9, 1957. Am. Compl. 10.² For over sixteen years between September 7, 1993 and November 4, 2009, plaintiff worked as a clerk in DPW's Managing Attorney's Office. Id. at 17. On the later date he was terminated. Id. His claims in this action arise both from his firing but also earlier events including conduct beginning in close proximity to the date on which he was hired in the early 1990s. Id. at 9.

Defendants include DPW itself as well as various supervisors and colleagues of plaintiff in the Managing Attorney's Office: Lawrence Jacobs (“Jacobs”) is the Managing Attorney; Jennifer Candelario (“Candelario”) is the Assistant Managing Attorney; Lamina Vucetovic (“Vucetovic”) is the Managing Clerk; and Robert Jones (“Jones”), Duane Grant (“Grant”), and Emmanuel Fashakin (“Fashakin”) appear to have worked as clerks alongside plaintiff. See id. at 1, 2, 92. It seems that Jacobs, Candelario, and Vucetovic all had overlapping supervisory responsibilities for plaintiff at different points during his term of employment. See id. at 5.

In addition to defendants, plaintiff also references numerous current and past employees of DPW as well as other law firms in his various submissions. In some cases, these individuals are referenced in connection with conduct that underlies or is facially related to plaintiff's claims. See, e.g., id. at 2. In other cases, these individuals are referenced in connection with tangents and asides whose purpose in at least some cases is evidently to intimidate or humiliate the men and women so referenced. See, e.g., id. at 95 n. 10.

Following his termination, on April 23, 2010, plaintiff filed a short charge alleging employment discrimination against DPW with the Manhattan Office of the Equal Employment Opportunity Commission (the “EEOC”). See Am. Compl. 10, 13–16. According to plaintiff, he subsequently received a letter on June 15, 2010 from the EEOC that informed him that due to the volume of pending charges, his charge had been transferred to the Newark Office of the EEOC. See Opp'n 1. Thereafter, on or about September 1, 2010, plaintiff prepared an amended charge, which it appears he likely filed with the Newark Office, in which he added considerably to his initial allegations, and to which he attached a number of exhibits. See Am. Compl. 17–100.³ On September 14, 2010, the Newark Office of the EEOC wrote to plaintiff to inform him that it was unable to conclude that DPW had violated federal law, that it was dismissing his charge, and that plaintiff had ninety days from receipt of its letter to bring suit. See Am. Compl. 102–06.

On December 15, 2010, plaintiff initiated his suit against defendants in this Court. On April 13, 2011, he filed his amended complaint, to which he attached his charge, amended charge and its exhibits, and also the EEOC's letter of September 14, 2010. Totaling 107 pages, the amended complaint contains allegations (oft-repeated) that are capable of being construed as employment discrimination claims and which are examined below in Part III.A.2 seriatim. However, the amended complaint and plaintiff's opposition papers to the pending motions also raise a host of allegations involving petty grievances and workplace jealousies that are so numerous that we do not individually examine each of them. To the extent that plaintiff intended these allegations to support any of the employment discrimination claims that we have identified and reviewed—it is often not clear—we have carefully examined them and find that they do not support a claim upon which relief can be granted either singularly or collectively.

Having previously sought our permission to proceed without a pre-motion conference, defendants filed their pending motions to dismiss and to strike on May 25, 2011.⁴

III. Discussion

A. Motion to Dismiss

1. Standard of Review

When deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in a plaintiff's favor. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir.2007). Mere “conclusions of law or unwarranted deductions of fact” need not be accepted as true. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (internal quotation marks omitted). A complaint must include “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Where plaintiffs have not “nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. This pleading standard applies in “all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009). In employment discrimination cases, a plaintiff is not required to establish a prima facie case at the pleadings stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“[t]he prima facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading requirement”). “Reconciling Swierkiewicz,Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.” Barbosa v. Continuum Health Partners Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010) (internal quotation marks and citation omitted) (emphasis added).

Where, as here, a complaint is filed by a pro se plaintiff, it “is ‘to be liberally construed,’ ... and ... ‘however inartfully pleaded, [it] must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). In other words, courts must interpret such pleadings “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). Nevertheless, a pro se plaintiff remains subject to the same general standard applicable to all civil actions under Twombly and Iqbal. See Schwamborn v. Cnty. of Nassau, 348 Fed.Appx. 634, 635 (2d Cir.2009).

In deciding a motion under Rule 12(b)(6), courts may consider “any written instrument attached to the complaint” and “statements or documents incorporated into the complaint by reference.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). Here, we accordingly consider the allegations in the amended complaint and the exhibits attached to it. In addition, in plaintiff's opposition papers, he raises new factual allegations to support his various claims, sometimes doing so in connection with a request to further amend his amended complaint. Ordinarily, plaintiffs may not amend their complaints through their motion papers. See Wright v. Ernst & Young L.L.P., 152 F.3d 169, 178 (2d Cir.1998). However, defendants do not object to plaintiff's ad hoc introduction of additional facts and answer his further allegations in their reply papers. Because “leave to amend a complaint, particularly one of a pro se litigant, should be liberally granted,” Schwamborn v. Cnty. of Nassau, 348 Fed.Appx. 634, 635 (2d Cir.2009) (citing Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003)), we will treat plaintiff's opposition papers to the extent that they raise new...