23-CV-11100 (LTS)
05-28-2024
LAKIEA ROBINSON, Plaintiff, v. AETNA, Defendant.
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is appearing pro se, brings this action alleging that Defendant discriminated and retaliated against her, and subjected her to a hostile work environment. (ECF 1 ¶ V.) By order dated January 18, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
BACKGROUND
Plaintiff Lakeia, who resides in Bridgeport, Connecticut, filed this complaint against Aetna, for which she provides a Kentucky address, arising from her employment with CocaCola, in Elmsford, New York. Using the court's Employment Discrimination Complaint form, Plaintiff asserts claims of discrimination based on race, color, sex, age, and disability, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 (Rehab Act), the Family Medical Leave Act (FMLA), 42 U.S.C. § 1981, and the New York State Human Rights Law.(ECF 1 ¶ III.)
Plaintiff filed five other pro se complaints in this court relating to her employment with Coca-Cola. See Robinson v. Coca-Cola, ECF 1:23-CV-10552, 1 (UA) (citing the same statutes invoked in this complaint); Robinson v. Sedgwick, ECF 1:23-CV-10782, 6 (LTS) (S.D.N.Y. Apr. 15, 2024) (Plaintiff directed to file an amended complaint); Robinson v. Bagwell, ECF 1:24-CV-621, 1 (UA); Robinson v. Kelly, ECF 1:24-CV-625, 4 (LTS) (S.D.N.Y. Jan. 29, 2024) (action transferred to the District of Connecticut); Robinson v. Magna Care, ECF 1:24-CV-0869, 5 (LTS) (S.D.N.Y. Apr. 15, 2024) (Plaintiff directed to file an amended complaint).
The following facts are drawn from the complaint. Plaintiff is a Black, African American woman, born in 1972, who suffers from “work related stress” and “workplace anxiety disorder.” (Id. ¶ 1A.) In March 2017, Plaintiff requested FMLA leave “to go to Catholic Charities,” but that request was denied, “because management told them to deny [her].” (Id. ¶ V.B.) According to Plaintiff, “[t]hey w[ere] supposed to only listen to [her] medical provider request & not what the managers told them to do to [her].” (Id.) Plaintiff asserts that Defendant did not “accept [her] request,” or “treat [her] fairly,” and that “this was a toxic mentally & physically work environment.” (Id. ¶ IV.) Plaintiff does not allege in this complaint that Coca-Cola fired her, but she states in another complaint that her last day of employment with Coca-Cola was April 1, 2017. Robinson v. Sedgwick Claims Mgmt. Serv., No. 23-CV-10782 (LTS) (S.D.N.Y.) (ECF 1 at 9.) Plaintiff purports to seek reasonable accommodation for her disability and money damages for “breach of fiduciary duty, not acting in good faith efforts, violating [her] ERISA rights, ADA, GINA.” (Id. ¶ VI.)
When prompted by the complaint form to provide information about exhausting administrative remedies, Plaintiff asserts that the Equal Employment Opportunity Commission (EEOC) issued a notice of right to sue on November 17, 2023. (Id. ¶ V.) Plaintiff does not provide a copy of the notice, but she refers to the complaint that she filed in Robinson v. CocaCola, No. 24-CV-10552, attached to which is the November 17, 2023 notice, which names CocaCola as the sole respondent, and states that the charge was dismissed for lack of jurisdiction. Id. ECF 1-1. Plaintiff attached the same EEOC notice to three of her other complaints, although Coca-Cola is not a defendant in those cases. No. 23-CV-10782, ECF 7 at 12; No. 24-CV-625, ECF 1 at 8; No. 24-CV-869, ECF 1 at 8.
Plaintiff moves for appointment of pro bono counsel and an “Order to Serve Defendants.” (ECF 3, 5.)
DISCUSSION
A. Short and Plain Statement of Claim
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). The Court need not accept, however, “[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
B. Causes of action
I. FMLA
The FMLA allows a covered employee to take up to 12 weeks of leave per year to care for the employee's own serious health condition or to care for a parent, spouse, or child who has a serious health condition. Higgins v. NYP Holdings, Inc., 836 F.Supp.2d 182, 193 (S.D.N.Y. 2011) (citing 29 U.S.C. § 2612). The Second Circuit has recognized two types of FMLA claims, interference and retaliation claims. See Smith v. Westchester Cnty, 769 F.Supp.2d 448, 463 (S.D.N.Y. 2011) (citing Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004)).
To state a claim for FMLA interference, Plaintiff must allege: (1) she is an eligible employee under the FMLA; (2) Aetna is an employer as defined in the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice of her intention to take leave; and (5) that she was denied benefits to which she was entitled under the FMLA. Higgins, 836 F.Supp.2d at 182. The FMLA also prohibits employers from retaliating against an employee from having exercised or attempting to exercise FMLA rights. 29 C.F.R. § 825.220(c); 29 U.S.C. § 2615(a)(2); See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006); Potenza, 365 F.3d at 167 (discussing the distinction between interference and retaliation claims under the FMLA).
2. Discrimination claims
Plaintiff asserts that Defendant discriminated against her based on her race, color, sex, disability, and age.
Title VII prohibits an employer from discriminating against an employee because of the employee's race, color, religion, sex, or national origin. See 42 U.S.C. §2000e-2(a). Section 1981 of Title 42 of the United States Code prohibits racial discrimination in, among other things, contractual relationships, including the relationships associated with employment contracts. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 304 (1994). To state a claim of employment discrimination under Title VII or Section 1981, “a plaintiff must plausibly allege that (1) the [defendants] took adverse employment action against him, and (2) [a protected characteristic] was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015); see also Khanna v. MUFG Union Bank, N.A., 785 Fed.Appx. 15, 15-16 (2d Cir. 2019) (summary order) (applying Vega pleading standard to § 1981 employmentdiscrimination claims); Johnson v. Wendys Corp., No. 19-CV-8157 (MKV), 2019 WL 6311790, at *2 (S.D.N.Y. Nov. 22, 2019) (same).
“The ADA prohibits discrimination against a ‘qualified individual on the basis of disability' in the ‘terms, conditions, and privileges of employment.'” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. § 12112(a)). A person is disabled under the ADA if the person has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). To plead a prima facie case of failure to accommodate a disability, a plaintiff must allege that (1) she is a person with a disability under the meaning of the statute; (2) her employer is covered by the statute and had notice of her disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer refused to make such accommodations. See McMillan v. City of N.Y., 711 F.3d 120, 125-26 (2d Cir. 2013). A plaintiff must also show “the connections between (1) the failure to accommodate a disability, (2) the performance deficiencies, and (3) the adverse employment action.” Natofsky v. City of N.Y., 921 F.3d 337, 352 (2d Cir. 2019) (quoting Parker v. Sony Pictures Ent''t, Inc., 260 F.3d 100, 108 (2d Cir. 2001)).
Plaintiff also invokes the Rehabilitation Act, but that statute applies only to entities that receive federal funding. See T.W. v. N.Y.S. Bd. of Law Examiners, 996 F.3d 87, 94 (2d Cir. 2021). Plaintiff does not allege that Aetna receives federal funding, and thus that statute is not relevant to her claims.
The ADEA makes it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or 3privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). To state an ADEA claim, a plaintiff must allege that his age was the but-for cause of the employer's adverse employment action. See Vega, 801 F.3d at 86.
These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka v. City of N.Y., 513 Fed.Appx. 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
C. Analysis
Plaintiff's complaint fails to comply with Rule 8 because it does not contain a short and plain statement showing that she is entitled to relief. Plaintiff does not allege facts suggesting that Defendant violated her rights under any of the federal statutes she invokes. Plaintiff merely asserts that Defendant, at the behest of management, denied her application for FMLA leave.
There is no information in Plaintiff's complaint about her eligibility for FMLA leave, why her application was denied, and how the circ*mstances of the denial could give rise to a claim of interference or retaliation under the FMLA. In short, Plaintiff claims that the denial was improper, but she does not explain why it was improper under the FMLA statute.
Similarly, Plaintiff does not provide facts suggesting that any action taken by Defendant is attributable to Plaintiff's race, color, sex, national origin, or on account of a disability. Beyond identifying herself as a Black, African American woman who was born in 1970 and who suffers from work-related stress, Plaintiff concludes, without supporting facts, that the denial of FMLA leave was done on a discriminatory or retaliatory basis. Moreover, Plaintiff alleges that she was subjected to a hostile work environment when she worked for Coca-Cola, but does not allege how Defendant Aetna, the apparent FMLA administrator for Coca-Cola, was involved in creating a hostile work environment. For these reasons, the Court finds that Plaintiff has failed to plausibly allege a violation of her rights.
In the relief section of the complaint, Plaintiff mentions the Employee Retirement Income Security Act (ERISA), and the Genetic Information Nondiscrimination Act of 2008 (GINA). (ECF 1 ¶ IV.) To state a claim under the ERISA statute, a plaintiff must allege that the benefit plan is an ERISA plan, that the plaintiff is a participant in the plan, and that the defendant breached its ERISA-imposed duty to pay the plaintiff under the terms of the plan. See Carlson v. Principal Fin. Group, 320 F.3d 301, 306-308 (2d Cir. 2003). GINA makes it “an unlawful employment practice for an employer to fail or refuse to hire . . . any employee . . . because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). If Plaintiff wishes to assert claims under these statutes, she must explain how they are relevant to her allegations.
D. State law claims
I. Diversity of citizenship jurisdiction
Because Plaintiff asserts a claim under the New York State Human Rights Law, the Court considers whether it has diversity of citizenship jurisdiction of this matter. Under 28 U.S.C. § 1332, a plaintiff asserting state law claims must allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted).
Plaintiff does not allege the citizenship of either party, although she provides a Connecticut address for herself and a Kentucky address for Defendant. Plaintiff also does not allege that her claim satisfies the statutory jurisdictional amount. The Court grants Plaintiff leave to file an amended complaint showing that diversity of citizenship jurisdiction exists; that the statutory jurisdictional amount is met; and that she can state a claim under the New York State Human Rights Law, or any other state law. The current complaint does not make this showing.
2. Supplemental jurisdiction
A district court may decline to exercise supplemental jurisdiction of state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Because Plaintiff has been granted leave to file an amended complaint, the Court will determine at a later stage whether to exercise its supplemental jurisdiction of any state law claim she may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circ*mstances in which district courts can refuse its exercise.'” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).
E. Motion for pro bono counsel
Plaintiff asks the Court to locate pro bono counsel for this matter. The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
F. Motion for order of service
Under 28 U.S.C. § 1915(e)(2)(B), an order of service is not issued if it has been determined that a complaint is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” Id. Having determined that Plaintiff's complaint fails to state a claim, Plaintiff's motion to effect service is denied without prejudice as premature. Should Plaintiff file an amended complaint that addresses the deficiencies set forth in this order, service will be ordered in due course.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). In light of Plaintiff's pro se status, the Court grants Plaintiff 60 days' leave to amend his complaint to detail her claims.
Plaintiff is granted leave to amend her complaint to provide more facts about her claims and to show why those claims are not untimely. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
As previously noted, Plaintiff has already asserted claims against Coca-Cola under the FMLA, Title VII, ADA, and ADEA in another action. See Robinson v. Coca-Cola, ECF 1:23-CV-10552, 1 ¶ IILA. Plaintiff should provide facts in the amended complaint showing that Aetna - the Defendant in this case - can and should be held liable under the statutes she cites, separate and apart from any claims she has asserted against Coca-Cola.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
There are other potential hurdles with this matter proceeding, namely that: (1) Plaintiff's claims may be untimely; (2) it is not clear that Plaintiff exhausted her administrative remedies with respect to her claims against Defendant under Title VII, the ADA, and the ADEA; and (3) it is not clear that Defendant qualifies as an employer for the purposes of liability under the FMLA, Title VII, the ADA, and the ADEA. The Court will address these matters at a later point, if Plaintiff files an amended complaint that addresses the deficiencies set forth in this order.
CONCLUSION
The Court denies without prejudice the motion for pro bono counsel and the motion for an order of service, and the Clerk of Court is directed to terminate them. (ECF 3, 5.)
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-11100 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff may receive court documents by email by completing the attached form, Consent to Electronic Service.
If Plaintiff consents to receive documents by email, Plaintiff will no longer receive court documents by regular mail.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
