Cao-Bossa v. Pulcher

• Court: U.S. District Court — Northern District of New York
• Writing for the Court: CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
• Decision Date: 08 November 2018
• Docket Number: 1:18-CV-1009 (LEK/CFH)
• Citation: Cao-Bossa v. Pulcher, 1:18-CV-1009 (LEK/CFH) (N.D. N.Y. Nov 08, 2018)
• Parties: WEILI CAO-BOSSA, Plaintiff, v. LINDSAY PULCHER, KATHLEEN ELFELDT, LISA RUSSEL, Defendants.

WEILI CAO-BOSSA, Plaintiff, v. LINDSAY PULCHER, KATHLEEN ELFELDT, LISA RUSSEL, Defendants.

1:18-CV-1009 (LEK/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 8, 2018

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

APPEARANCES:

Weili Cao-Bossa

1912 East Country Club Drive

Schenectady, New York 12309

Plaintiff prose

REPORT-RECOMMENDATION & ORDER

I. In Forma Pauperis Application

Plaintiff pro se Weili Cao-Bossa commenced this action on August 22, 2018 with the filing of a complaint and, in lieu of this Court's filing fee requirement, a motion to proceed in forma pauperis. Dkt. Nos. 1 ("Compl."), 2. The undersigned has reviewed plaintiff's IFP application and determines that she may properly proceed IFP.¹

II. Initial Review of Complaint

The Supreme Court of the United States directs that, when a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal (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)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain her complaint before permitting him to proceed with her action.

Where, as here, the plaintiff proceeds pro se, "the court must construe his submissions liberally and interpret them to raise the strongest arguments that they suggest." Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (internal quotation marks omitted); see also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, this does not mean the Court is required to accept unsupported allegations devoid of sufficient facts or claims. Pleading guidelines are provided in the Federal Rules of Civil Procedure ("Fed R. Civ. P"). Specifically, Rule 8 provides that a pleading which sets forth a clam for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." See FED. R. CIV. P. 8(a)(2). "The purpose . . . is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable." Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also requires the pleading to include:

(1) a short and plain statement of the grounds for the court's jurisdiction . . . ;(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought . . . .

FED. R. CIV. P. 8(a). Although "[n]o technical form is required," the Federal Rules make clear that each allegation contained in the pleading "must be simple, concise, and direct." Id. at 8(d). Ultimately, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

A complaint that fails to comply with the pleading requirements "presents far too a heavy burden in terms of a defendant's duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims." Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, "[w]hen a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative . . . to dismiss the complaint." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). However, "[d]ismissal . . . is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Id. (citations omitted).

A. Allegations in Complaint

Plaintiff contends that dhe was discriminated against insofar as dhe was terminated from er employment as a senior accountant trainee from the Department of Labor after six months of employment, despite receiving positive evaluations. Seegenerally Compl. Plaintiff began employment with "DOL" on October 6, 2016, and was terminated on April 15, 2017, "based on two defamatory evaluations stating I was so incompetent that I should be terminated." Id. at 1. Plaintiff also contends she is aggrieved because, before she began her employment in October 2016, she was forced to decline a position as senior accountant trainee which she interviewed for on July 13, 2016, as she was told she "became ineligible for the position only because there was a better candidate," one with "more working experience that they wanted to hire." Id. at 2. Further, plaintiff provides that, during her employment, defendants treated her differently from other employees by terminating him rather than providing her with a warning and opportunities to improve, despite allowing other employees who made mistakes this option. Id.

Plaintiff contends that defendants "defamed" her in their evaluations and by terminating her despite previous positive evaluations and feedback. Compl. at 7. Further, plaintiff contends that "Defendants could not be held personally responsible for their wrong doings under Act VII, I would like to sue them under tort law and want them personally liable for their misconducts." Compl. at 9. Plaintiff states that defendants "committed intentional torts and the HR persons were negligent when coming to due process." Id.

C. Initial Review of Complaint

A. Title VII

Arguably, plaintiff intends to bring this workplace discrimination complaintpursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. and the Civil Rights Act of 1991 ("Title VII").² There is no indication in the Complaint whether plaintiff commenced a claim before the Equal Employment Opportunity Commission ("EEOC"). In order to commence an action in federal Court pursuant to Title VII, a plaintiff "must file a charge of discrimination with the EEOC 'within one hundred eighty (180) days 'after the alleged unlawful employment practice occurred,' or within three hundred (300) days of the alleged discrimination if the claimant 'has initially instituted proceedings with a state local agency[,]' and receive a 'right-to-sue' letter from the EEOC prior to commencing a suit in federal court." McNight v. Dormitory Auth. of State of N.Y., 995 F. Supp. 70, 76 (N.D.N.Y. 1998) (quoting 42 U.S.C. § 2000e-5(e)). Only after a plaintiff brings a discrimination claim before the EEOC and obtains a right to sue letter may the plaintiff bring an action for relief in federal court. 42 U.S.C. § 2000e-5(e); Seale v. Madison Cty., 929 F. Supp.2d 51, 65 (N.D.N.Y. 2013). A plaintiff must bring the federal court action within ninety (90) days of receiving a right to sue letter. Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994) ("[A] suit must be commenced not more than 90 days after receipt of the right-to-sue letter"). "It is well settled that if a plaintiff does not file suit within 90 days of receiving the EEOC's right-to-sue letter, the action must be dismissed, unless extraordinary circumstances have been established." Banks v. Avis Budget Grp., 16-CV-1320 (MAD/DJS). 2018 WL 922147, at *2 (N.D.N.Y. Feb. 15, 2018), appeal dismissed by 2dCir (Jun. 28, 2018) (citing Skibinski v. Zevnik, Horton, Guibord, McGovern, Palmer & Fognani, LLP, 57 F. App'x 900 (2d Cir. 2003) (summary order)). "'The filing deadline for the formal complaint is not jurisdictional and, like a statute of limitations, is subject to equitable tolling[, which] is only appropriate in rare and exceptional circumstances.'" Id. (quoting Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal quotation marks and citations omitted)).

First, as indicated, plaintiff does not provide whether she timely filed a complaint before the EEOC, received a right to sue letter, or commenced this action within ninety days of receipt of that right to sue letter, but even if the Court assumes she had met all of these requirements (or that equitable tolling applies), it is unclear whether this federal action would be timely. Plaintiff allege that she was terminated on April 15, 2017. The only adverse action she discusses beyond her termination is being forced to decline a position in June 2016. Thus, if plaintiff timely commenced an EEOC claim, he would have to commence it within 180 days of the alleged discriminatory conduct, her termination, by October 12, 2017. 42 U.S.C. § 2000e-5(e)). If she commenced a proceeding with a state agency, she would have to commence an EEOC proceeding within 300 days from her termination, or by February 9, 2018. 42 U.S.C. § 2000e-5(e)). Based on this time line, it is possible that, if plaintiff did receive a right to sue letter, she commenced this action within ninety days after receipt of that letter. However, as the complaint is completely silent as to whether plaintiff timely filed a complaint before the EEOC, received a right to sue letter, and timely commenced this action, due to plaintiff's pro se status, it is recommended that plaintiff's Title VII claim be dismissedwithout prejudice and with opportunity to amend to allow plaintiff to provide such information.

Second, it is well settled that Title VII is "directed toward employers, not individual natural persons who are not themselves employers, at least absent separate intentional misconduct." Bramesco v. Drug Computer Consultants, 834 F. Supp. 120, 123 (S.D.N.Y. 1993) (citing Miller v. Maxwell's Intern., Inc., 991 F.2d 583 (9th Cir. 1993). Thus, there is no claim under Title VII against individual employees or supervisors. Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (citation omitted); Guerra v. Jones, 421 F. App'x 15 (2d Cir. 2011) (summary order). Therefore, it is recommended that, insofar as plaintiff may be attempting to assert a Title VII claim against defendants Pulcher,...