DEBRA FREEMAN, Magistrate Judge.
In this employment discrimination action, pro se plaintiff Sean G. Felder ("Plaintiff") has now been given three opportunities by the Court to amend his Complaint so as to state a viable federal claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). The third and last time, Plaintiff was expressly advised by the Court that he was being afforded "one final opportunity to file a further amended pleading, solely for the purpose of attempting to assert a discriminatory denial-of-hours claim." (Memorandum Decision and Order, dated Mar 15, 2017 (Daniels, J.) ("3/15/17 Order") (Dkt. 49) (adopting Report and Recommendation, dated Jan. 25, 2017 ("1/25/17 R&R") (Dkt. 46)), at 3-4.) Further, the Court has twice provided detailed instructions to Plaintiff as to the type of allegations he would need to plead, in order to state this claim. (See id., at 4 (referring to 1/25/17 R&R, at 28); see also Order, dated May 1, 2017 ("5/1/17 Order") (Dkt. 51) ¶ 2.) Despite this, Plaintiff's Third Amended Complaint (Third Amended Employment Discrimination Complaint, dated May 31, 2017 ("3d Am. Compl.") (Dkt. 52)) is still deficient. For this reason, and as discussed in more detail below, I recommend that the motion of defendants Madison Square Garden ("MSG") and Radio City Music Hall (Radio City) (collectively, "Defendants")
The factual and procedural background of this case is largely set out in this Court's prior Report and Recommendation (1/25/17 R&R), familiarity with which is assumed. This Court will therefore summarize below only those factual allegations and filings of the parties that are relevant to the resolution of Defendants' currently pending motion.
This Court previously considered a motion by Defendants to dismiss the claims asserted in Plaintiff's Second Amended Complaint. (Dkt. 26.) At that time, even reading Plaintiff's pro se submissions in their most favorable light, the Court found that Plaintiff's papers suggested that he had only one potentially viable Title VII claim. Specifically, this Court determined that Plaintiff, who was formerly employed by Defendants as a security guard, might possibly have a claim that Defendants had given other similarly situated workers more hours of work, and thus greater pay, because they, unlike Plaintiff, were Hispanic. This Court found, however — and, in adopting this Court's Report and Recommendation, Judge Daniels agreed — that Plaintiff had not pleaded that claim adequately. (See 3/15/17 Order, at 3-4; 1/25/17 R&R, at 26-28.)
As to the basis of Plaintiff's potential discriminatory denial-of-hours claim, this Court first noted that, in his pre-suit administrative complaint, Plaintiff had alleged that:
(See 1/25/17 R&R, at 7 (quoting Complaint filed by Plaintiff with the New York City Commission on Human Rights ("NYC CHR") (copy attached as Ex. A to the Declaration of Joseph A. Nuccio, Esq., dated Aug. 1, 2016 ("Nuccio Decl.") (Dkt. 28)) ¶ 6); see also id., at 26.)
Despite the fact that Plaintiff had already twice been granted leave to replead, this Court, in recognition of Plaintiff's pro se status, recommended that he be given one final opportunity to do so, solely as to the single potential claim that this Court had identified. (Id., at 27-28.) This Court further recommended that, if leave to amend were granted, "then Plaintiff be instructed to allege, in his third amended complaint, that he is not Hispanic (assuming that this is true); that he suffered an adverse employment action — in particular, that he was denied hours of work; and that a motivating factor for Defendants' denying him hours of work was his non-Hispanic national origin." (Id., at 28.) This Court additionally wrote that "Plaintiff should also be instructed to clarify, in a third amended complaint, the period of time in which he was denied work hours that were instead given to Hispanic workers; the fact that, in terms of his job position and qualifications, he was similarly situated to the workers who were awarded the hours that he was denied; and the damages he suffered as a result of any discriminatory denial of hours." (Id.)
In adopting this Court's recommendation, Judge Daniels concluded:
(3/15/17 Order, at 4.)
As of a month and a half after Judge Daniel's ruling, Plaintiff had still not filed a Third Amended Complaint, setting out any discriminatory denial-of-hours claim. Accordingly, by Order dated May 1, 2017 (Dkt. 51), this Court set a deadline of May 31, 2017 for the filing of that amended pleading (see id. ¶ 1). In its May 1 Order, this Court reiterated what Plaintiff would need to allege in his amended pleading, in order to be able to proceed with this case, stating:
(Id. ¶ 2.)
Plaintiff met the May 31, 2017 deadline for filing his Third Amended Complaint, but the factual allegations set out in that pleading do not track the Court's instructions. Plaintiff does allege that he is African-American; that his original supervisor "regularly rotated" the security guards, including Plaintiff, "around the different positions available at Radio City"; that, in 2004, a new supervisor, Clinton Neils
Instead, the main thrust of Plaintiff's amended pleading appears to be that posts that were assigned by Defendants to Hispanic security guards were "more favorable" than those assigned to non-Hispanic security guards because of the posts' locations. (Id. ¶ 7.) In particular, Plaintiff alleges that "[t]he more favorable posts were those that were inside, required the guards to do no or very little physical labor, and allowed the guards to take regular breaks," while "[t]he less favorable posts were those that were outside, required more the guards [sic] to do physical labor, and prevented the guards from taking more regular breaks." (Id.) Plaintiff provides a few examples of this divergence, claiming that:
Plaintiff repeatedly contends he had equal or more experience than the Hispanic security guards who received the more favorable post assignments. (See generally id., at 9-10 ¶¶ 8, 10-12.) He also describes an incident in late August 2013, in which Neils allegedly "reprimand[ed] Plaintiff and other black employees for being out of uniform, but would not reprimand . . . Hispanic employees who were also out of uniform." (Id. ¶ 9.) Finally, Plaintiff alleges that, after his last shift working at Radio City (at the time of the NFL Draft in May 2014), he "called MSG to ask if there were any more open shifts for him to work, and he was denied work for a number of weeks." (Id., at 10 ¶ 13.)
On June 15, 2017, Defendants filed a motion (Dkt. 54) to dismiss the Third Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim; alternatively, Defendants requested that the Court convert the motion to one for summary judgment and grant judgment in their favor under Rule 56, based on the Affidavit submitted by Neils (see supra, at nn.3, 4) and an Affidavit of Lisa Mendez-Maldonado ("Mendez-Maldonado"), Safety and Security Coordinator at Radio City (see Affidavit of Mendez-Maldonado, sworn to June 14, 2017 ("Mendez-Maldonado Aff."), and exhibits thereto (Dkt. 57)). In support of their motion, Defendants also submitted a memorandum of law (Memorandum of Law in Support of Defendants' Motion To Dismiss the Third Amended Complaint or, in the Alternative, for Summary Judgment, dated June 15, 2017 ("Def. Mem.") (Dkt. 55)), and a Rule 56.1 Statement of material undisputed facts (Defendants' Statement of Material Undisputed Facts Pursuant to Local Rule 56.1, dated June 15, 2017 ("Def. Rule 56.1 Stmt.") (Dkt. 58)).
In their motion, Defendants argue that Plaintiff has still failed to plead a cognizable claim for a discriminatory denial of hours, as he has nowhere alleged in his Third Amended Complaint that, because he is not Hispanic, he was denied work hours that were instead assigned to Hispanics. (See Def. Mem., at 1, 7-10.) In addition, Defendants contend that, even if the Court were to find that Plaintiff had adequately pleaded such a Title VII claim (which, they maintain, he has not), undisputed evidence shows that the claim cannot stand. (See id., at 2, 10-11.) In support, Defendants rely on Neils' sworn statement that, contrary to Plaintiff's allegation, he is not Hispanic, but rather "Black/African-American" (Neils Aff. ¶ 3), and on certain statistics provided by Mendez-Maldonado, regarding the hours worked by Black and Hispanic security officers at Radio City, during the four-month period from February 1 through May 31, 2014 (see Mendez-Maldonado Aff. ¶ 4). With respect to that four-month period, which was at the end of Plaintiff's employment with Defendants (see 3d Am. Compl., at 10 ¶ 13), and was the only timeframe identified by Plaintiff in his administrative claim as a period in which he allegedly suffered a discriminatory denial of work (see Nuccio Decl., Ex. A), Mendez-Maldonado states:
(Mendez-Maldonado Aff. ¶ 4). She also states, in her Affidavit, that, although Plaintiff was scheduled to work at Radio City on May 16, 19, 20, and 22, 2014, he emailed her on May 20, "less than an hour before his scheduled shift start time," and requested that he be "take[n] off the schedule," as he had another job. (Id. ¶¶ 5-6.) According to Mendez-Maldonado, Plaintiff then failed to respond to her inquiries as to whether he planned to return to Radio City, or was resigning. (Id. ¶ 7.)
On June 21, 2017, Plaintiff filed a handwritten opposition to Defendants' motion. (See Letter to the Court from Plaintiff, dated June 19, 2017 ("Pl. Opp.") (Dkt. 61).) In his opposition (which is neither sworn nor made under penalty of perjury), Plaintiff disputes the statements made by Neils regarding Neils' own race and ethnicity, maintaining that, despite those statements, Neils, in fact, is not Black, but rather Hispanic. (Id., at 1.) Plaintiff also refers to Mendez-Maldonado as a "liar," stating that he "was never scheduled more work hours than Hispanic employees" (id., at 2), and suggesting he never "resigned" from his employment with Defendants (see id.). Finally, of relevance here, Plaintiff states the following regarding his work hours: "My final years at [Radio City], my working hours decreased. [Radio City] management was phazing [sic] out veteran employees, bringing in new employees and paying them less salary!" (Id.)
On June 28, 2017, Defendant filed a reply memorandum. (Reply Memorandum of Law in Support of Defendants' Motion To Dismiss the Third Amended Complaint or, in the Alternative, for Summary Judgment, dated June 28, 2017 ("Def. Reply") (Dkt. 62).) On reply, in addition to re-emphasizing the arguments raised in their moving papers, Defendants point out that, if, as Plaintiff seemed to maintain in his opposition, his work hours were decreased because Defendants instead chose to give more hours to newer, lesser-paid employees (presumably to save money), then he cannot maintain a claim that his hours were decreased because of his race or national origin. (See id., at 3.)
On July 10, 2017, after the Court had already received Defendants' reply, Plaintiff filed a response to Defendants' Rule 56.1 Statement, disputing as "baseless" or false certain of the purported facts set forth in Defendants' submitted Affidavits of Neils and Mendez-Maldonado. (Plaintiff's Response to Defendant's Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 in Opposition to Defendant's Motion for Summary Judgment, dated July 5, 2017 ("Pl. Response to Def. Rule 56.1 Stmt.") (Dkt. 63).)
The legal standards for a court's review of a motion to dismiss a pleading pursuant to Rule 12(b)(6), for failure to state a claim, are set out, in detail, in this Court's prior Report and Recommendation. (See 1/25/17 R&R, at 11-14.) This Court will merely reiterate here that, in deciding such a motion, it must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted), and that, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court also notes that, while the Twombly Iqbal plausibility standard applies to the pleadings of pro se plaintiffs, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), "the submissions of a pro se litigant must be construed liberally and interpreted `to raise the strongest arguments that they suggest,'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Rule 12(d) of the Federal Rules of Civil Procedure governs situations in which "matters outside the pleadings" are presented to the court on a motion to dismiss pursuant to Rule 12(b)(6). Fed. R. Civ. P. 12(d). "Pursuant to Rule 12(d), the Court must determine whether the newly presented documents are (1) part of the pleadings such that the Court may consider them as part of the instant motion; (2) not part of the pleadings such that the documents should be excluded in deciding [the] motion to dismiss; or (3) not part of the pleadings but should be considered by converting the instant motion to dismiss to one for summary judgment." Madu, Edozie & Madu, P.C. v. Socketworks Ltd. Nigeria, No. 07cv11028 (PKL), 265 F.R.D. 106, 122 (S.D.N.Y. 2010).
Rule 12(d) requires that, prior to conversion to a motion for summary judgment (which would then be reviewed pursuant to Rule 56 of the Federal Rules of Civil Procedure), the opposing party "be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). In the case of a pro se party,
Hernandez v. Coffey, 582 F.3d 303, 307-08 (2d Cir. 2009) (quoting Beacon Enter. Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983)). Such notice must advise the pro se litigant that "all assertions of material fact in the defendants' affidavits and other papers in support of their motion will be taken as true unless the pro se litigant contradicts those factual assertions in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence, or by submitting other materials as provided in Rule 56[(c)]." Arnold v. Goetz, 245 F.Supp.2d 527, 540 (S.D.N.Y. 2003).
Local Civil Rule 12.1 codifies these notice requirements by requiring that "[a] represented party moving to dismiss . . . against a party proceeding pro se, who refers in support of the motion to matters outside the pleadings . . ., shall serve and file [a prescribed notice] with the full text of Fed. R. Civ. P. 56 attached at the time the motion is served." As long as the notice requirements are satisfied and "all parties have been given a reasonable opportunity to present materials pertinent to the motion's disposition," it is within the Court's "discretion . . . to convert a motion filed under Fed. R. Civ. P. 12(b)(6) into one seeking summary judgment." Aetna Cas. & Surety Co. v. Aniero Concrete Co., 404 F.3d 566, 573 (2d Cir. 2005) (internal quotation marks and citation omitted).
This Court has previously set out the relevant standards governing the exhaustion requirement for Title VII claims (see 1/25/17 R&R, at 15-17), as well as the substantive pleading requirements for a Title VII claim based on disparate treatment (see id., at 17-19). Neither need be repeated here at length.
As to exhaustion, the key point is that a plaintiff's Title VII complaint in federal court must be limited to the scope of his prior administrative complaint, see Littlejohn v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015), meaning that the Court may only hear Title VII claims that were included in a prior administrative charge or that are "reasonably related" to the allegations included in that charge, see id. (internal quotation marks and citations omitted).
As for substantive pleading requirements, to state a claim for employment discrimination based on disparate treatment, a pleading must "must plausibly allege that (1) the employer took adverse action against [the plaintiff] and (2) his [or her] race, color, religion, sex, or national origin was a motivating factor in the employment decision." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). An "adverse action," for this purpose, is "a materially adverse change in the terms and conditions of employment." Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008); accord Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006); Galabya v. New York City Bd. of Ed., 202 F.3d 636, 640 (2d Cir. 2000). As this Court has previously noted, a decrease in wages, a material loss of benefits, or a significant diminishment in an employee's material responsibilities can constitute a materially adverse change. (See 1/25/17 R&R, at 18 (citing Schiano); see also, e.g., Galabya, 202 F.3d at 640 ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." (internal quotation marks and citation omitted).)
Although a change in an employee's work assignment can represent a materially adverse change, for such a change to be actionable it "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 304 (2d Cir. 2017) (quoting Galabya, 202 F.3d at 640); accord Davis v. New York City Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). Merely "receiving unfair criticism" or an "unfavorable schedule[] or work assignment[]" is insufficient, Boonmalert v. City of New York, No. 16cv4171 (KMW), 2017 WL 1378274, at *4 (S.D.N.Y. Apr. 12, 2017) (quoting Katz v. Beth Israel Med. Ctr., No. 95cv7183 (AGS), 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001)), aff'd, No. 17-1465, WL 496846 (2d Cir. Jan. 22, 2018), as "[e]veryday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII," La Grande v. DeCrescente Distrib. Co., 370 Fed. App'x 206, 211 (2d Cir. 2010) (Summary Order) (citation omitted); see also Osby v. City of New York, No. 13cv8826 (TPG), 2016 WL 4372233, at *6 (S.D.N.Y. Aug. 15, 2016). For an employee's reassignment to a different location or shift to rise to the level of an "adverse action," it must impact the terms of the plaintiff's employment in a significantly negative way. See Ward v. Shaddock, No. 14cv7660 (KMK), 2016 WL 4371752, at *5 (S.D.N.Y. Aug. 11, 2016) ("the receipt of undesirable assignments must be accompanied by a material detriment to an employee's working conditions to constitute an adverse employment action" (internal quotation marks and citations omitted)); see also Lore v. City of Syracuse, 670 F.3d 127, 170 (2d Cir. 2012) (finding that "the transfer of an employee from an `elite' position to one that is `less prestigious . . . with little opportunity for professional growth'" could allow a jury to infer that the transfer was materially adverse (quoting de la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 21 (2d Cir. 1996)); Cavanaugh v. Cty. of Nassau, No. 13-CV-3389 (SJF), 2015 WL 5794211, at *5-6 (E.D.N.Y. Sept. 30, 2015) (finding, on summary judgment, that "the fact that [plaintiff] was temporarily reassigned to what he considers undesirable daily assignments . . . [was] not [an] adverse employment action[] because [it] did not radically change the nature of the work" (internal quotation marks and citations omitted)); accord Potash v. Florida Union Free Sch. Dist., 972 F.Supp.2d 557, 584 (S.D.N.Y. 2013) ("Changes in assignments or responsibilities that do not `radically change' the nature of work are not typically adverse employment actions." (citing Galabya, 202 F.3d at 640 (internal alterations omitted))).
The threshold question presented by Defendants' motion is whether Plaintiff's amended pleading, liberally construed, plausibly states a claim that Plaintiff was denied hours of work that were instead given to other workers because they were Hispanic. If Plaintiff's pleading fails on its face, then there is no need for the Court to consider converting Defendants' motion to one for summary judgment. In this instance, it is apparent that Plaintiff has not pleaded a plausible claim for the discriminatory denial of work hours. Nor, for that matter, has he adequately pleaded a claim for discriminatory treatment based on the nature of his work assignments.
Starting with the obvious question of whether Plaintiff has followed the Court's detailed instructions as to the types of allegations that he would need to plead in order to state a viable Title VII claim that, for discriminatory reasons, Defendants denied him work (and thus pay), the answer is plain: He has not. First, nowhere has Plaintiff actually alleged that he is not Hispanic, although this Court assumes that, by identifying himself in the Third Amended Complaint as African-American (3d Am. Compl. at 3, § III(A)), Plaintiff may have intended to suggest that he is not also Hispanic. Second, and more importantly, nowhere has Plaintiff alleged that he was ever denied hours of work that were instead given to similarly situated Hispanic employees — much less that a "motivating factor" in Defendants' act of denying him work hours was his non-Hispanic national origin. (See generally 3d Am. Compl.; see also Vega, 801 F.3d at 86.) To the extent Plaintiff mentions any denial of hours at all in his amended pleading, he merely alleges that, at the end of his employment, he "called MSG to ask if there were any more open shifts for him to work, and he was denied work for a number of weeks." (Id., at 10 ¶ 13.) Even liberally construed, this bare allegation cannot plausibly be read as an allegation that his purported denial of work was the result of work being preferentially assigned, instead, to Hispanic workers.
To the extent that Plaintiff is now, for the first time, trying to assert a different type of disparate treatment claim — i.e., that he was not denied hours of work as a result of preferential treatment of Hispanics, but rather favorable shift locations (indoor locations, as opposed to outdoor locations) — his claim should also be dismissed, as unexhausted. In his administrative complaint, Plaintiff merely alleged that Defendants "gave more work to Hispanic workers" during the last four months of his employment. (See Nuccio Decl., Ex. A.) While a related claim can be considered exhausted where it would "reasonably be expected to grow out of the charge" alleged, Littlejohn, 795 F.3d at 322, it cannot be said that Plaintiff's current claim that he was given less favorable post assignments, on occasions spanning the period from August 2013 to May 2014, would have reasonably been expected to grow out of a charge that he was denied work hours during a period commencing in February 2014. Accordingly, Plaintiff cannot be said to have exhausted the claim his amended pleading now suggests, and thus he cannot maintain it in this Court.
Finally, although it need not reach this issue, this Court notes that, even taken as true, Plaintiff's new allegations that, at times, he was "forced to work outside" (3d Am. Compl., at 10 ¶ 11; see also id., at 9-10 ¶¶ 8, 10-12) are not sufficient to state a Title VII claim. Plaintiff has now suggested that, for "certain events" (3d Am. Compl., at 9 ¶ 7), such as the filming of "America's Got Talent" and the NFL draft (id., at 9-10 ¶¶ 8, 12), when Defendants needed to fill both inside and outside security posts, Neils "more often" gave the inside posts to Hispanic security guards, rather than rotating the positions among all security guards, in a fairer way (id., at 9 ¶ 7; see also id. ¶ 4). Plaintiff has further suggested that the outside posts tended to involve work that was physically difficult, such as moving barricades and engaging in crowd control, while the inside posts were less demanding and more comfortable — air-conditioned in the summer, and allowing more readily for employee breaks. (See 3d Am. Compl., at 9-10 ¶¶ 7-8, 10-12.)
Apparently, Plaintiff is complaining that, at least on certain occasions, Neils gave Hispanic security guards easier, more plum assignments than he gave non-Hispanic security guards, such as himself. Yet, as set out above, even where a plaintiff's assignment is "inconvenient" or "unfavorable," it will not be found to constitute a material, adverse action for purposes of Title VII where the work assignment does not "radically change" the nature of the work, is consistent with the duties of the plaintiff's position, and offers no diminishment in compensation, employment benefits, seniority status, or responsibilities. See Potash, 972 F. Supp. 2d at 584; see, e.g., Brown, 673 F.3d at 150; Katz, No. 95cv7183 (AGS), 2001 WL 11064, at *14; Johnson, 211 F. Supp. 2d at 518. Without more, Plaintiff's new allegations of occasional, unfavorable assignments could not satisfy the substantive standards of Title VII, even if Plaintiff had actually exhausted the claim.
Accordingly, I recommend that the Court dismiss Plaintiff's Title VII claims with prejudice under Rule 12(b)(6), for failure to state a claim for the discriminatory denial of work hours, and, as to any new claim for discriminatory assignment of job posts, for failure to exhaust and, in any event, for failure to state a claim. Given the deficiencies in Plaintiff's amended pleading, there is no need for the Court to consider whether Defendants' motion should be converted to a motion for summary judgment under Rule 56.
I further recommend that, pursuant to 28 U.S.C. § 1367(c)(3), the Court decline to exercise supplemental jurisdiction over any claims that Plaintiff may be seeking to assert under the New York State Human Rights Law and the New York City Human Rights Law. (See 3d Am. Compl., at 6 § III(B); see also Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (finding that, in a case where "all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims" (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).)
For the foregoing reasons, I recommend that Defendants' motion to dismiss Plaintiff's Third Amended Complaint, or, in the alternative, for summary judgment (Dkt. 54) be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure; that Plaintiff's asserted Title VII claims be dismissed with prejudice; and that any state or local claims be dismissed without prejudice to their assertion in state court.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, U.S.D.J., United States Courthouse, 500 Pearl Street, Room 1310, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
If Plaintiff does not have access to cases cited herein that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.").
