Katz v. New York Historical Society

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT KATZ, Plaintiff, 19-CV-8637 (CM) -againstORDERTO AMEND NEW YORK HISTORICAL SOCIETY, et al., Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, appearing pro se, brings this action, alleging that the New York Historical Society discriminated against him in his employment from 2007-2013. He names as defendants the NYHS and several other defendants, who either discriminated against him when he applied for a job, or conspired with NYHS in retaliation for his unspecified conduct. By order dated November 8, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court must dismiss an in forma pauperis 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.SeeFed. 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 sepleadings 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. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,”which are essentially just legal conclusions. 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. BACKGROUND This action arises out of Plaintiff’s employment at the NYHS and the alleged age discrimination he experienced during his employment, which terminated in 2013. He asserts that on his last date of employment, NYHS “wanted [him] to sign a legal document givingthem whistleblower protection . . . [and] they hired younger people to the depot and did not promote [him] to [fulltime].”(ECF No. 2, at 13.) He also claims that the NYHS “put spyware on [his] work computer [and] stole [his] email address [and] used this to prevent [him] from getting another job.”(Id.) Plaintiff applied to several jobs, and those employers “knowingly cooperated with NYHS in . . . retaliation.”(Id.) For relief, Plaintiff seeks money damages and an order directing Defendants to “stop computer intrusion at all places [and to] stop [NYHS] [from] stalking/defamation/harassment.”(Id.at 14.) Plaintiff names as defendants the NYHS, NYHS Trustees and three NYHS employees, Laura Washington, Jennifer Schantz, and Davis Lopez (the “NYHS Defendants”).He also names 31 individuals and entities: (1) Tim Wroten from the Andrew Mellon Foundation; (2) Valerie Crane, from the Alfred Sloan Foundation; (3) Bless Vaidan, from Pace University; (4) Joey Peterson, an individual not obviously affiliated with any organization; (5) Maria Note, (6) Jacky Wallace, and (7) Lauren Ball, from the New York Road Runners; (8) Julia Prosser, from Simon Schuster; (9) Harvey Hirsh, from the Museum of the City of New York; (10) Danayah Gooderd and (11) Sarah Rosen, from the Guggenheim Museum; (12) the Middletown Thrall Library (Thrall); (13) SUNY Orange, Orange County Community College (OCCC); (14) Mike Saunders, from the Piermont Fire Department; (15) the New York State Public Service Commission (NYS PSC); (16) Jimmy Van Bramer, of the New York City Council (NYC Council); (17) David Eng, from the Lower East Side Tenement Museum; (18) Melissa Mark, of the NYC Council; (19) Glen S. Lewy, of Hudson Ventures; (20) Mr. Barry Barnett, from Susman Godfrey LLP; (21) Norman S. Benzaquent and (22) Richard Gilder, from Gilder Gagnon Howe; (23) Franci J. Blassberg, from Debevoise & Plimpton; (24) James S. Chanos, from Kynikos Associates LP; (25) Ravenel B. Curry, III, from Eagle Capital Management; (26) James Grant, from Grant’s Interest Rate Observer; (27) Jonathan M. Moses, from Wachtell, Lipton, Rosen & Katz; (28) Russell P. Pennoyer, from Brittany Capital Group Inc.; (29) Eric J. Wallach, from DLA Piper; (30) David W. Zalaznick, of JZ Partners; and (31) Byron R. Wien, from Blackstone(the “Remaining Defendants”). DISCUSSION A. Claims against the NYHS Defendants The Court construes the complaint as asserting claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 . The ADEAmakes it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623 (a). The ADEA protects workers who are at least 40 years old from discrimination because of age. Feldman v. Nassau Cnty., 434 F.3d 177 , 180 (2d Cir. 2006); see29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”). Although the ADEA does not provide a claim for individual liability,see, e.g.,Leon v. Rockland Psychiatric Ctr., 232 F. Supp. 3d 420, 435 (S.D.N.Y. 2017) (noting that “there is no individual liability under . . . the ADEA”), a plaintiff may seek relief against individual defendants under the New York State and New York City Human Rights Laws (HRL),see Abdu– Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA). The State HRL provides for individual liability for “any person”who aids and abets anemployer’s discrimination. N.Y. H.R.L. § 296 (6). The City HRL makes it “an unlawful discriminatory practice for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this chapter, or to attempt to do so.”N.Y.C. Admin. Code § 8–107(6). Because Plaintiff does not assert facts showing that he is entitled to relief, the Court grants him leave to amend his complaint to assert his age-discrimination claims against the NYHS Defendants and to plead facts suggesting that thesedefendants discriminated against him on account of his age.The Court strongly encourages Plaintiff to use the attached employment discrimination form to bring his claims. B. Claims against the Remaining Defendants The Court dismisses without prejudicePlaintiff’s claims brought against the Remaining Defendants under Rule 21 of the Federal Rules of Civil Procedure. That rule “authorizes the severance of any claim, even without a finding of improper joinder, where there are sufficient other reasons for ordering a severance.” Wyndham Assoc. v. Bintliff, 398 F.2d 614 , 618 (2d Cir. 1968); see also Ghaly v. U.S. Dep’t of Agric., 228 F. Supp. 2d 283, 292 (S.D.N.Y. 2002) (noting that “district courts have broad discretion to decide whether joinder is appropriate, even when the requirements of Rule 20(a) have been met”) (citation omitted). Plaintiff names 31 defendants concerning claims that do not relate to each other and do not appear to relate to Plaintiff’s age-discrimination claims against the NYHS Defendants. The Court therefore dismisses without prejudice all claims brought Wroten, Crane, Vaidan, Peterson, Note, Wallace, Ball, Prosser, Hirsh, Gooderd, Rosen, Thrall, OCCC, Saunders, NYS PSC, Van Bramer, Eng, Mark, Lewy, Barnett, Benzaquent, Gilder, Blassberg, Chanos, Curry, Grant, Moses, Pennoyer, Wallach, Zalaznick, and Wien. LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to detail his age-discrimination claims against the NYHS Defendants. In the statement of claim, Plaintiff must provideashort and plain statementof the relevant facts supporting each claim against each defendant named in the amended complaint. The Court grants Plaintiff leave to file an amended complaint that does not exceed 20 pages, including the complaint form attached to this order. The Court strongly encourages Plaintiffto contact the New York Legal Assistance Group’s (NYLAG) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this Court. A copy of the flyer with details of the clinic is attached to this order. The amended complaint, if Plaintiff chooses to file one, should be sent to this Court’s Pro Se Intake Unit. In the amended complaint, Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must: a) give the names and titles of all relevant persons; b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do; c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event; d) give the location where each relevant event occurred; e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief. Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violationoccurred; where such violationoccurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint,any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. 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 19-CV-8637 (EAPCM). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he 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. The Clerk of Court is also directed to attach to this order a copy of the flyer for NYLAG’s legal clinic. 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 in forma pauperis status 1s 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. Dated: December 3, 2019 New York, New York hie. Iu yh COLLEEN McMAHON Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Write the full name of each plaintiff. CV. (Include case number if one has been assigned) “against: Do you want a jury trial? Ll1Yes LINo Write the full name of each defendant. The names listed above must be identical to those contained in Section |. AMENDED EMPLOYMENT DISCRIMINATION COMPLAINT NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2. Rev. 3/24/17 I. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed. First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. (Proper defendants under employment discrimination statutes are usually employers, labor organizations, or employment agencies.) Attach additional pages if needed. Defendant 1: Name Address where defendant may be served County, City State Zip Code Defendant 2: Name Address where defendant may be served County, City State Zip Code Defendant 3: Name Address where defendant may be served County, City State Zip Code II. PLACE OF EMPLOYMENT The address at which I was employed or sought employment by the defendant(s) is: Name Address County, City State Zip Code Il. CAUSE OF ACTION A. Federal Claims This employment discrimination lawsuit is brought under (check only the options below that apply in your case): L] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, for employment discrimination on the basis of race, color, religion, sex, or national origin The defendant discriminated against me because of my (check only those that apply and explain): L] race: CL] color: L] religion: Ll sex: L] national origin: Page 3 L] 42U.S.C. § 1981, for intentional employment discrimination on the basis of race My race is: [] Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634, for employment discrimination on the basis of age (40 or older) I was born in the year: L] Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 796, for employment discrimination on the basis of a disability by an employer that constitutes a program or activity receiving federal financial assistance My disability or perceived disability is: [] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, for employment discrimination on the basis of a disability My disability or perceived disability is: L] Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654, for employment discrimination on the basis of leave for qualified medical or family reasons B. Other Claims In addition to my federal claims listed above, I assert claims under: L] New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297, for employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status L] New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131, for employment discrimination on the basis of actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status L] Other (may include other relevant federal, state, city, or county law): Page 4 IV. STATEMENT OF CLAIM A. Adverse Employment Action The defendant or defendants in this case took the following adverse employment actions against me (check only those that apply): L] didnot hire me [] terminated my employment L] did not promote me L] did not accommodate my disability L] provided me with terms and conditions of employment different from those of similar employees L] retaliated against me □□ harassed me or created a hostile work environment L] other (specify): B. Facts State here the facts that support your claim. Attach additional pages if needed. You should explain what actions defendants took (or failed to take) because of your protected characteristic, such as your race, disability, age, or religion. Include times and locations, if possible. State whether defendants are continuing to commit these acts against you. As additional support for your claim, you may attach any charge of discrimination that you filed with the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights, the New York City Commission on Human Rights, or any other government agency. Page 5 V. ADMINISTRATIVE PROCEDURES For most claims under the federal employment discrimination statutes, before filing a lawsuit, you must first file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) and receive a Notice of Right to Sue. Did you file a charge of discrimination against the defendant(s) with the EEOC or any other government agency? L] Yes (Please attach a copy of the charge to this complaint.) When did you file your charge? [1] No Have you received a Notice of Right to Sue from the EEOC? L] Yes (Please attach a copy of the Notice of Right to Sue.) What is the date on the Notice? When did you receive the Notice? [1] No VI. RELIEF The relief I want the court to order is (check only those that apply): L] direct the defendant to hire me L] direct the defendant to re-employ me L] direct the defendant to promote me L] direct the defendant to reasonably accommodate my religion L] direct the defendant to reasonably accommodate my disability L] direct the defendant to (specify) (if you believe you are entitled to money damages, explain that here) Page 6 VII. PLAINTIFF’S CERTIFICATION By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. Dated Plaintiff’s Signature First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available) Ihave read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically: LlYes LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form. Page 7 Gn [5 vy 4) United States District Court eee) Southern District of New York ID OS Sister y Pro Se (Nonprisoner) Consent to Receive Documents Electronically Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their cases electronically (by e-mail) instead of by regular mail. Receiving documents by regular mail is still an option, but if you would rather receive them only electronically, you must do the following: 1. Sign up for a PACER login and password by contacting PACER! at www.pacer.uscourts.gov or 1-800-676-6856; 2. Complete and sign this form. If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked document number in the e-mail.* Once you click the hyperlink and access the document, you may not be able to access the document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For this reason, you should print or save the document during the “free look” to avoid future charges. IMPORTANT NOTICE Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s Electronic Case Filing Rules & Instructions, documents may be served by electronic means. If you register for electronic service: 1. You will no longer receive documents in the mail; 2. Ifyou do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents; 3. This service does not allow you to electronically file your documents; 4. It will be your duty to regularly review the docket sheet of the case. 1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER Case Locator over the internet. 2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone. See ECF Rule 4.3 3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s Office at the Court. 500 PEARL STREET | NEW YORK, NY 10007 300 QUARROPAS STREET | WHITE PLAINS, NY 10601 CONSENT TO ELECTRONIC SERVICE I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that: 1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing; 2. I have established a PACER account; 3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents; 4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if I wish to cancel this consent to electronic service; 5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and 6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like to receive electronic service of notices of documents, I must file consent forms for those cases. Civil case(s) filed in the Southern District of New York: Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending and terminated cases. For each case, include the case name and docket number (for example, John Doe v. New City, 10-CV-01234). Name (Last, First, MI) Address City State Zip Code Telephone Number E-mail Address Date Signature Return completed form to: Pro Se Intake Unit (Room 200) 500 Pearl Street New York, NY 10007 Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. ———_————————e Free Legal Assistance for Self-Represented Civil Litigants in Federal District Court in Manhattan and White Plains The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a free legal clinic staffed by attorneys and paralegals to assist those who Thurgood Marshall are representing themselves or planning to United States Courthouse represent themselves in civil lawsuits in the Room LL22 Southern District of New York. The clinic, 40 Centre Street which is not part of or run by the court, New York, NY 10007 assists litigants with federal civil cases (212) 659 6190 including cases involving civil rights, employment discrimination, labor law, Open weekdays social security benefits, foreclosure and tax. □ a.m.- 4 p.m. The clinic cannot assist individuals while Closed on federal and court holidays they are incarcerated, but can provide assistance to litigants once they are released from custody. To make an appointment for a The Hon. Charles L. Brieant Jr. consultation, call (212) 659-6190 or come Federal Building and Courthouse by either clinic during office hours. Please 300 Quarropas St note that a government-issued photo ID is White Plains, NY 10601 required to enter either building. (212) 659 6190 The clinic offers in-person Open Wednesday appointments only. The clinic does 12 p.m.- 4 p.m. not offer assistance over the phone Closed on federal and court holidays or by email. il nd)