Mohamed v. Nyu, 14cv8373 (GBD) (MHD)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
PartiesHASSAN S. MOHAMED, Plaintiff, v. NYU, et al., Defendants.
Docket Number14cv8373 (GBD) (MHD)
Decision Date21 May 2015

NYU, et al., Defendants.

14cv8373 (GBD) (MHD)


May 21, 2015



Pro se plaintiff Hassan S. Mohamed is a former employee of New York University ("NYU"). He commenced this lawsuit on October 20, 2014, asserting that NYU and four individual defendants1 had violated his rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-101 et seq.

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Identifying himself as "African," "dark," "Musl[i]m," "Arab," and sixty-two or sixty-three years of age, plaintiff describes his claims -- in a form complaint -- as failure to promote, unequal terms and conditions of employment, retaliation, constructive firing, and hostile work environment/harassment.

Defendants responded with a pre-answer motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). They assert that plaintiff (1) failed to exhaust his administrative remedies with the U.S. Equal Employment Opportunity Commission ("EEOC"), (2) failed to file his claim within the applicable statutes of limitations, and (3) pled insufficient factual allegations to pass muster under Rule 12(b)(6). Defendants ask that plaintiff's complaint be dismissed in its entirety, with prejudice.

For the reasons that follow and as set forth below, we recommend that the complaint be dismissed, but that some of plaintiff's claims be dismissed without prejudice to repleading. See infra pp. 85-87.

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I. How We Assess a Pro Se Complaint

As an initial matter, we note the requirement, for purposes of a motion to dismiss, to "accept[] as true all factual allegations in the complaint, and draw[] all reasonable interferences in the plaintiff's favor." Barrows v. Burwell, 777 F.3d 106, 111 (2d Cir. 2015). This effort is often complicated, however, when a plaintiff is unrepresented. Relevant decisions are replete with examples of pro se litigants either presenting too much to the court -- in pleadings so voluminous as to essentially eviscerate the Rule 8 requirement that pleadings be "short and plain" -- or too little -- in threadbare complaints so empty as to render an attempt to understand the facts nearly, if not entirely, impossible. See, e.g., Gonzalez v. Wing, 113 F.3d 1229, *1 (2d Cir. 1997) (affirming dismissal of pro se plaintiffs' 287-page "incredibly dense and verbose" complaint); Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming dismissal of pro se plaintiff's 88-page, single-spaced complaint that "contained a labyrinthian prolixity of unrelated and vituperative charges that defied comprehension[,] fail[ing] to comply with the requirement of Rule 8"); Ruggiero v. Mobile Crisis Team, 2013 WL 8350363, *1 (D. Conn. Aug. 19, 2013)

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(discussing dismissal of pro se complaint numbering 332 pages, supplemented by two additional filings of 219 and 127 pages each); Benzo v. New York State Division of Human Rights, 1997 WL 37961, *4 (S.D.N.Y. Jan. 31, 1997) (dismissing 444-page pro se complaint); see also Wang v. Palmisano, 51 F. Supp. 3d 521, 541-43 (S.D.N.Y. 2014) (dismissing pro se's discrimination claims as "barebones and conclusory," having pled "only that Plaintiff is 56 years old and that he was not hired despite the fact that he was qualified"); Ortiz v. Standard & Poor's, 2011 WL 4056901, *3-4 (S.D.N.Y. Aug. 29, 2011) (dismissing pro se complaint "[w]ithout actual facts demonstrating discriminatory animus[, because] discrimination is just one possibility" for plaintiff's termination); Payne v. Malemathew, 2011 WL 3043920, *2 (S.D.N.Y. July 22, 2011) (dismissing pro se complaint that included "simply nothing . . . for which one might reasonably infer" discrimination).

Nevertheless, courts "remain obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Second Circuit has explained that

[t]his policy of liberally construing pro se submissions is driven by the understanding that "[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litgants from inadvertent forfeiture of important rights because of their lack of legal training."

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Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This obligation calls for reading pro se submissions "to raise the strongest arguments they suggest," Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007), which is "especially true when dealing with pro se complaints alleging civil rights violations." Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir. 2002). Yet -- and this is central to the motion before us -- "though we are obligated to draw the most favorable inferences that [plaintiff's] complaint supports, we cannot invent factual allegations that he has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

Here, both plaintiff's complaint and affirmation in opposition to defendants' motion to dismiss contain "'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Igbal, 556 U.S. 662, 677 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). We will discuss below the legal sufficiency of plaintiff's claims. For now, we simply note that -- for purposes of providing background for, and assessing, defendants' 12(b)(6) motion -- we reconstruct the record by utilizing an "Opinion and Award" written in the wake of an arbitration between plaintiff's representative union and NYU. (See Ex. G to Minnah-Donkoh Decl.).

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Our consideration of this decision is appropriate because "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint 'relies heavily upon its terms and effect,' which renders the document 'integral' to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)); accord Luna v. N. Babylon Teacher's Org., 11 F. Supp. 3d 396, 401 (E.D.N.Y. 2014); DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 59-60 (S.D.N.Y. 2010).

Still, our obligation to construe the facts in a light most favorable to plaintiff cuts both for and against relying on this document, which was provided only by defendants in their motion papers. Plaintiff at once appears to depend heavily on the very same document -- indeed, his meager filings are utterly incomprehensible without it -- while also opposing the arbitrator's decision and framing of the facts to some nebulous degree. (See Ex. F to Minnah-Donkoh Decl.). In any event -- both because plaintiff himself provides so little and because we recommend that most of his claims be dismissed without prejudice -- we provide factual history from the arbitration decision for purposes of background while simultaneously appreciating that plaintiff's own account of the facts might differ in some measure from what follows.

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II. Plaintiff's Employment and Union-Backed Arbitration

Plaintiff Mohammed S. Hassan was born in Egypt in 1953. (Compl. ¶ II(D); Attach. 3 to Pl.'s Affirm. in Opp. [hereinafter "EEOC Intake"] p. 1). He was hired by NYU in July 1990 as an "Air Condition[ing] Eng[ingeer]." (EEOC Intake p. 1).

As described by an arbitrator's opinion dated August 7, 2012, by 2004 plaintiff had acquired the position of "First Operator" in a "central heating and cooling plant [that] distributed heat and chilled water to some of [NYU's Washington Square campus] and electricity to seven core buildings." (Ex. G to Minnah-Donkoh Decl. [hereinafter "Arb. Op."] pp. 2, 7). This plant was several decades old and "generally functioned by manually turning valves." (Id. at p. 2). The operation of the plant was split between two discrete sides, with "the boilers on one side and the refrigeration equipment or chillers and diesel generators on the other." (Id.). The arbitrator characterized the plant as "using old technology and equipment" and having "no digital controls and no central control room for the two sides." (Id.).

Plaintiff worked on the refrigeration side of the plant, "one of three employees on the shift in a position responsible for

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starting up, shutting down and operating the diesel generators and the chillers." (Id. at p. 3). However, the arbitrator quoted plaintiff as representing that he occasionally assisted "in the winter on the other side." (Id. at p. 7).

Some time in 2010, NYU completely replaced the old plant with a "Cogeneration plant." (Id. at p. 3). This upgrade did away with the two-sided system of the old plant and replaced the manual operation with a "state of the art computerized monitoring and control system where the status of a pump or valve is changed with a click of a mouse." (Id.). The project, taking four years to complete at a cost of $125 million, supplies electricity, air, and heat to dozens of NYU buildings, and sells back excess power to the Con Ed grid. (Id.).

In the new plant, as in the old, there existed the position of "First Operator." (Id.). However, the First Operator position in the Cogeneration plant was something of a different job. Unlike in the old plant -- where a First Operator was only required to possess a license in refrigeration -- in the new plant, a First Operator needed both a refrigeration license and a steam license. (Id. at p. 4). Moreover, the Cogeneration First Operator was responsible for the whole plant, not only one part; would be in

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charge of the new control room at times when an engineer was not present; and was one of only two staff-members on...

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