Brown v. Fat Dough Incorp.

• Decision Date: 04 April 2023
• Docket Number: 5:22-CV-0761 (BKS/ML)
• Parties: JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing business as Dominos Pizza, Defendant.
• Court: U.S. District Court — Northern District of New York

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JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing business as Dominos Pizza, Defendant.

No. 5:22-CV-0761 (BKS/ML)

United States District Court, N.D. New York

April 4, 2023

APPEARANCES: OF COUNSEL: JERAMIAH BROWN Plaintiff, Pro Se

ORDER

Miroslav Lovric U.S. Magistrate Judge

REPORT and RECOMMENDATION

The Clerk has sent this pro se Amended Complaint (Dkt No. 7) filed by Jeramiah Brown (“Plaintiff”) to the Court for review. For the reasons discussed below, I recommend that Plaintiff's Amended Complaint (Dkt. No. 7) be (1) accepted in part for filing, and (2) dismissed (a) in part with leave to amend, and (b) in part without leave to amend.

I. BACKGROUND

Construed as liberally^[1] as possible, Plaintiff's Amended Complaint-which was completed on a form complaint alleging violations of Title VII of the Civil Rights Act, as amended (“Title VII”)-alleges that his civil rights were violated by Fat Dough Incorp., doing business as Dominos Pizza (“Defendant”). (See generally Dkt. No. 7.)

More specifically, Plaintiff alleges that he was discriminated against based on his sex (or sexual harassment), his national origin, and his disability. (Dkt. No. 7 at 2.) Plaintiff alleges that the conduct complained of in this action includes the termination of his employment, unequal terms and conditions of his employment, retaliation, and harassment. (Id.)

Plaintiff alleges that he identifies as gender non-binary,^[2] his national origin is Norwegian, he was born with thrombocytopenia with absent radius, and he was diagnosed with traumatic brain injury in 2014. (Dkt. No. 7 at 3.) Plaintiff alleges that he was employed by Defendant on October 8, 2021.^[3] (Id.) Plaintiff alleges that as part of his employee training, he was required to “shadow” a delivery driver named Megan, who stole Plaintiff's “delivery change” and discriminated against Plaintiff's “National Origin ethnicity.” (Id.)

Plaintiff alleges that he was harassed by co-worker and supervisor Richard Filkins “on occasions” and Mr. Filkins asked Plaintiff about his sexual orientation “on [n]umerous [o]ccasions.” (Id.) Plaintiff alleges that Mr. Filkins asked Plaintiff for sexual favors and when Plaintiff refused, Mr. Filkins retaliated by assigning Plaintiff to work with Megan. (Id.)

Plaintiff alleges that he reported feeling uncomfortable and harassed by Megan and Mr. Filkins to his “Widow Grandmother” and to his manager Martin Wilder. (Id.) Plaintiff alleges that on October 14, 2021, he filed “an open door policy complaint about the harassment from [e]mployees” including sexual harassment by Mr. Filkins and Megan taking money that did not belong to her. (Id. at 4, 6.)

Plaintiff alleges that on October 27, 2021, co-worker Ethan Talley threw dirty water and mushrooms at Plaintiff. (Id. at 4.) Plaintiff alleges that unnamed other employees laughed and humiliated Plaintiff and stated that Plaintiff would allow other employees to treat him poorly because Plaintiff is disabled. (Id.) Plaintiff alleges that he reported the incident to Mr. Wilder, but that Mr. Wilder yelled at Plaintiff for sitting outside on a bench. (Id.) Plaintiff alleges that Mr. Wilder did nothing to resolve the harassment. (Id.) Plaintiff alleges that he also reported the harassment to another supervisor named Dorothy. (Dkt. No. 7 at 11.)

Plaintiff alleges that he asked for earlier day shifts to accommodate his disability and to avoid working with Mr. Filkins. (Dkt. No. 7 at 6.) Plaintiff alleges that on October 19, 2021, he was scheduled to work an earlier shift and Mr. Filkins created a hostile work environment yelling, screaming, and questioning why Plaintiff was scheduled for an earlier shift. (Id.)

Plaintiff alleges that on October 22, 2021, he was assigned the role of dishwasher, which was a demotion from his role of delivery driver, in retaliation for filing an open-door policy complaint with Defendant. (Dkt. No. 7 at 9.) Plaintiff alleges that he was assigned the dishwasher role from October 22, 2021, until October 28, 2021. (Id.) Plaintiff alleges that before his reassignment to dishwasher on October 22, 2021, an employee used a toilet plunger as a door stopper, which caused the door to “maliciously close” on Plaintiff when Plaintiff was leaving and entering to deliver pizzas. (Id.) Plaintiff alleges that Brian Galloway and Martin Wilder “made unequal terms of employment” for Plaintiff by assigning him to the role of dishwasher and yelling at him for not being fast enough to be a delivery driver. (Dkt. No. 7 at 4.)

Plaintiff alleges that on October 28, 2021, another employee of Defendant's broke into Plaintiff's car and drew a smiley face with pizza grease on the inside windshield. (Dkt. No. 7 at 4.) Plaintiff alleges that he reported the car break-in to Defendant's manager and supervisor Mr. Wilder and Dorothy. (Id.) Plaintiff alleges that he also notified the Fort Drum military police about his car being broken into. (Id. at 3.) Plaintiff alleges that the managers failed to properly investigate who broke into his vehicle and, instead, Mr. Wilder told Plaintiff to go home early “in a hostile way” and informed Plaintiff he would never work for Defendant again because Plaintiff reported the incident to police. (Id. at 11.)

Plaintiff alleges that on October 28, 2021, and October 29, 2021, Brian Galloway told Plaintiff to “never show up for a shift again” and explained to Plaintiff that he was not “allowed to work” at Defendant again because Plaintiff involved the police. (Id. at 11.)

Based on these factual assertions, Plaintiff appears to assert the following seven causes of action (1) a claim that Plaintiff was discriminated and retaliated against in violation of Titles I, II, and V of the Americans with Disabilities Act (“ADA”); (2) a claim that Plaintiff's equal rights under the law were violated pursuant to 42 U.S.C. § 1981; (3) a claim that Plaintiff endured a hostile work environment in violation of Title VII; (4) a claim that employees of Defendant retaliated against Plaintiff for filing an open door policy claim and notifying the Fort Drum military police of the pizza grease incident in violation of Title VII; (5) a claim of discrimination pursuant to Section 504 of the Rehabilitation Act; (6) a claim that Defendant's employee Brian Galloway violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”); (7) a claim of sexual harassment by Mr. Filkins in violation of Title VII.^[4] (Dkt. No. 7 at 12-15.)

As relief Plaintiff seeks $200,000.00 in damages. (Dkt. No. 7 at 12.)

On October 17, 2022, the undersigned issued an Order and Report-Recommendation that (1) granted Plaintiff's leave to proceed in forma pauperis, (2) denied Plaintiff's motion for appointment of counsel, and (3) recommended that Plaintiff's Complaint be dismissed with leave to replead for failure to state a claim upon which relief may be granted. (Dkt. No. 6.) On October 31, 2022, Plaintiff filed an amended complaint. On November 7, 2022, Chief United States District Judge Brenda K. Sannes issued a memorandum-decision and order that reviewed the undersigned's Report-Recommendation and found no clear error but, nonetheless, rejected the Report-Recommendation as moot in light of Plaintiff's Amended Complaint which superseded the original in all respects. (Dkt. No. 8.)

II. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is 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).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that 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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.”...