Sall v. George

• Decision Date: 26 January 2022
• Docket Number: Civil Action 2:20-cv-214-cr
• Court: United States District Courts. 2nd Circuit. District of Vermont
• Parties: Abdullah Saajoh Sall, Plaintiff, v. Sarah Fair George et al., Defendants.

Abdullah Saajoh Sall, Plaintiff,
v.
Sarah Fair George et al., Defendants.

Civil Action No. 2:20-cv-214-cr

United States District Court, D. Vermont

January 26, 2022

REPORT AND RECOMMENDATION (DOC. 82)

Kevin J. Doyle . United States Magistrate Judge

Plaintiff Abdullah Saajoh Sall, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants Sarah George, the Chittenden County State's Attorney's Office, Seven Days Newspaper, the Vermont State Police, “Chittenden County Police Departments, ” the City of Burlington, Chittenden County, Local Motion, the Greater Burlington YMCA, and others.^[1] (Doc. 7 at 1-3, 5.) Sall alleges that starting in 2012, he experienced discrimination in Chittenden County, Vermont based on his race, religion, and national origin, causing him chronic trauma, depression, and anxiety. (Id. at 3-5.) Sall claims that “[t]he City of Burlington and Chittenden [County] as a whole . . . is a racist safe h[]aven city with a culture and tradition of subtle racism as the underbelly of the community” (Doc. 7-2 at 37), and that “[t]he residents

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of Burlington, Chittenden County, and Vermont convey their racial disdain in so many different ways” (id. at 38). As a black Muslim man who immigrated to America from Africa (id. at 3), Sall alleges that he has been “made to pay the price” in a culture that “sees black m[e]n as offenders, aggressive, or violent criminals” (id. at 38). Sall seeks $300 million dollars in restitution, to “help [account for] all the injustices [he] was made to endure.” (Doc. 7 at 5.)

In this Report and Recommendation, the Court considers the Motion to Dismiss of Defendant the Greater Burlington YMCA (YMCA). (Doc. 82.) Sall has filed an Opposition to the Motion (Doc. 97), and the YMCA has filed a Reply (Doc. 106). For the reasons discussed below, I recommend that the Motion (Doc. 82) be DENIED in part and GRANTED in part, and that Sall be granted leave to amend the Amended Complaint with respect to his claims against the YMCA.

Relevant Facts and Procedure

Sall initially filed this action in the District of Massachusetts on November 12, 2020. (Doc. 1.) Approximately one month later, the case was transferred to this District. (Docs. 3, 5.) On January 19, 2021, Sall filed the Amended Complaint. (Doc. 7.) Sall attaches two documents to his Amended Complaint: (1) a “Final Determination” of the Vermont Human Rights Commission (HRC), dated June 25, 2020, finding that the “Department of State's Attorneys and Sheriffs [and] the Chittenden County State's Attorneys' Office . . . illegally discriminated against . . . Sall . . . on the basis of national origin, race, and skin color, in violation of Vermont's Fair Employment Practices Act” (Doc. 7-1 at 2); and (2) a document titled “Amended Complaint Abdullah Sall Self-[I]ntro, ” which serves as the primary factual basis for Sall's allegations in this case (Doc. 7-2).

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Sall's “Self-[I]ntro” document, which is referred to in this Report and Recommendation as the Amended Complaint, ^[2] is 59 pages and presented largely in narrative form. (See id.) In the Amended Complaint, Sall describes his experiences living in the Burlington, Vermont community, including among other things, his volunteer work at the Boys and Girls Club in Winooski, his service as a soccer coach for the Winooski YMCA, and with the Chittenden Emergency Food Shelf; his service as a Chittenden County Court Diversion review board member; his candidacy for Burlington City Council; his work with T.J. Donovan and Sarah George at the Chittenden County State's Attorney's Office; his work at the YMCA and Local Motion; and his eventual move from Vermont to Texas. (See id.) Throughout these experiences, Sall states that he was subjected to discrimination based on his race, religion, and ethnicity. (See, e.g., id. at 40, 41, 53.) Sall alleges that he is entitled to $300 million in damages under 42 U.S.C. § 1983 due to Defendants' purported discriminatory treatment of him. (Doc. 7 at 3-5.)

Sall's Amended Complaint contains an approximately nine-page section entitled “Greater Burlington YMCA” that focuses exclusively on the YMCA's allegedly unlawful conduct. (Doc. 7-2 at 27-35.) For purposes of recommending a disposition on the YMCA's Motion to Dismiss, the Court accepts as true the factual allegations contained in the “Greater Burlington YMCA” section, and the remainder of the Amended Complaint. (Docs. 7, 7-2). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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Sall apparently worked for the YMCA for a period of “years.” (Doc. 7-2 at 29). The Amended Complaint does not specify the precise dates of Sall's employment with the YMCA.^[3]In his Opposition to the YMCA's Motion to Dismiss, although not stating any specific dates, Sall alleges that he was “hired . . . to work for the YMCA” “around early 2015” (Doc. 97 at 4), and that he was “working at the YMCA part[ ]time” (id. at 8). He further states that his work at the YMCA involved “signing up members[], scanning members, and so on” at “the front station desk” (id. at 4); that he was “restricted . . . to only answering phone calls, doing laundry, and scanning people” (id. at 15); and that he “was responsible for the evening shift at [the] Burlington YMCA and supervis[ing] the evening shift at the Winooski YMCA” (id.).

According to Sall, he was “blame[d] for anything that happened [at the YMCA] based on [his] religion, race, and national origin, ” and “[u]nder [the YMCA's] leadership[, he] . . . endured a sustain[ed] campaign of racial abuse, religious abuse, and ethnic abuse.” (Doc. 7-2 at 27.) He claims he was “constantly criticized, scapegoated, ignored, renounced, and abused.” (Id.) The Amended Complaint repeatedly refers to Gary Vassar, the YMCA's “HR Director”; Mike Cioffi, the YMCA's “Membership Director”; and Graham Gowen, whose position at the YMCA is unclear. (Id. at 27-30.) Sall claims that together Vassar and Cioffi “used [him] for their own gain and abused [him] conveniently.” (Id. at 27.) Sall further alleges that Cioffi and Gowen “created mistakes and amplified [them] using [his] racial, religious, and ethnic identity as a qualifying factor.” (Id. at 28.) He claims Gowen accused him of “fraternizing with white girls, ”

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lacking in clerical skills, and failing to separate his personal life from his work life. (Id. at 29.) Further, Sall claims that these individuals from the YMCA “fabricated racial, ethnic, and religious stigma in the workplace that [was] used on a daily basis to attack [him].” (Id. at 28-29.) Sall alleges that, “for years, ” Gowen, Vassar, and Cioffi “racial[ly] tormented, yelled [at], heckled, hounded, . . . and taunted” him, “embody[ing] the spirit of systemic racism and incompetence [at the] supervisory level.” (Id. at 29.) Sall alleges that Gowen in particular “is manipulative, cunning, deceptive, and untruthful, ” and that he “created a cycle of friends in various YMCA departments to gossip and intimidate [Sall].” (Id. at 28.)

The Amended Complaint names several other individuals, some apparently employed by the YMCA and others who may not be, who allegedly verbally abused and otherwise harassed Sall. (Id. at 30-34.) According to Sall, the “insinuation” is that his “religious, ethnic, and national origin” was the cause of the abuse and harassment. (Id. at 32; see, e.g., id. at 31 (“Julie Ann Held[] [is] a well-documented racist at the YMCA.”).) According to Sall, he was “racially abused every night [that he] worked [for the YMCA] and falsely accused for everything the next morning.” (Id. at 35.) He further claims that he was “sometimes denied time off” and was “yelled at and spok[en] to in a demeaning manner” at the YMCA. (Id.)

In his Opposition to the YMCA's Motion to Dismiss, Sall expands upon the allegation that Gowen accused him of “fraternizing [with] young white women, ” explaining that Gowen and others at the YMCA found such fraternizing “offensive and threatening due to the fact [that] they considered [Sall] as sexist[] [and] misogynist for being a Muslim male, African male, and black male.” (Doc. 97 at 13.) Sall further alleges in his Opposition that the YMCA's “leaders” “developed a sexual harassment scheme to entrap [him] and . . . to get rid of [him], ” which involved “encourag[ing] new female co-workers to flirt with [him] and build a trust with [him]

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and then rescind consent.” (Id. at 15.) Sall presents other new facts in his Opposition, some of which seem to have no connection to the events at issue in this litigation.^[4]

Although the Amended Complaint is not clear as to the legal basis for the claims asserted against the YMCA, ^[5] it appears to allege violations of Title VII because it suggests that Sall experienced a hostile work environment while working at the YMCA due to his race, religion, and ethnicity. (See, e.g., Doc. 7-2 at 27-29.) Sall's Opposition confirms that he brings his claims against the YMCA under Title VII. (See Doc. 97 at 19-20 (listing the following “Counts” under the heading “Title VII of the Civil Rights Act of 1964”^[6]: “Racial Harassment/Aversive Hostilities, ” “Religious Harassment/Hostilities, ” “National Origin/Cultural Hostilities, ” “Failure to Promote in Violation of Title VII, ” and “Retaliation in Violation of Title II”); see also Doc. 106 at 2 (“For the purposes of its [M]otion [to Dismiss], the YMCA assumed the intent of

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[Sall's] Amended Complaint was to proceed against [the YMCA] pursuant to Title VII. [Sall's] [O]pposition now confirms this assumption by repeatedly referring to Title VII.”).)

Ordinarily, a plaintiff may not attempt to amend his complaint by asserting new facts or theories for the first time in opposition to a pending motion to dismiss. Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (noting that a plaintiff cannot “amend” its pleading through its opposition papers); In re...