MAE A. D'AGOSTINO, District Judge.
Plaintiff brings this action, pro se, pursuant to 42 U.S.C. § 2000e et seq. ("Title VII") based on the gender discrimination he claims to have suffered during his employment with the Federal Bureau of Investigation ("FBI"). On January 4, 2008, plaintiff filed a motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings claiming that defendant's answer failed to comport with the requirements of Rule 8 of the Federal Rules of Civil Procedure. (Dkt. No. 14). Defendant opposed plaintiff's motion. (Dkt. No. 20). On June 30, 2008, defendant filed a motion pursuant to Rule 12(c) for judgment on the pleadings based upon the following grounds: (1) plaintiff failed to exhaust his administrative remedies with regard to his Title VII claims for gender discrimination; (2) plaintiff failed to allege facts that constitute an adverse employment action to support claims of gender discrimination; and (3) plaintiff failed to establish a prima facie claim of retaliation. (Dkt. No. 49). Plaintiff opposed defendant's motion. (Dkt. No. 51). On August 27, 2008, plaintiff filed a motion pursuant to Rule 15 to supplement the complaint. (Dkt. No. 57). Defendant opposed the motion. (Dkt. No. 59). On March 31, 2011, Chief United States District Judge Norman A. Mordue issued a Memorandum-Decision and Order resolving the motions and holding:
(Dkt. No. 134).
Presently before the Court are two motions: (1) defendant's motion for reconsideration of portions of the prior Memorandum-Decision and Order ("MDO") (Dkt. No. 144); and (2) defendant's motion for dismissal of plaintiff's third cause of action set forth the in the Supplemental Complaint (Dkt. No. 153). Plaintiff has opposed both motions.
Familiarity with the facts of this case is assumed based on this Court's previous MDO and will not be repeated herein. Giarrizzo v. Mukasey, 07-CV-0801, Dkt. No. 134 (Mar. 31, 2011).
Defendant argues that reconsideration of portions of the prior MDO is necessary pursuant to N.D.N.Y.L.R. 7.1(g).
Defendant argues that the Court should reconsider the portion of the prior MDO that denied defendant's motion to dismiss plaintiff's complaint and the portion of the decision that granted plaintiff's motion to supplement his complaint.
Defendant argues for reconsideration of the decision not to dismiss plaintiff's complaint for the following reasons: (1) the Court mistakenly relied upon the Conley v. Gibson standard for assessing the sufficiency of plaintiff's complaint; (2) plaintiff did not plead an adverse action; and (3) new caselaw supports the dismissal of the complaint for failure to timely exhaust administrative remedies.
With respect to the sufficiency of the complaint, defendant alleges that the Court erred when it failed to apply the correct standard in assessing the complaint. To wit, defendant claims that the Court failed to use the two step analysis found in Twombly and Iqbal and argues that plaintiff's complaint does not "state a claim that is plausible on its face".
To survive a dismissal motion, "a complaint must plead `enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). While Twombly replaced the "no set of facts" language with the requirement that a plaintiff "state a claim for relief that is plausible on its face", Twombly did not change the requirement that the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003). Moreover, Twombly did not "significantly alter the lenient, notice-focused standard used to assess the complaint of a pro se plaintiff." Walker v. Daines, 2009 WL 2182387 at *6 (E.D.N.Y. 2009) (citing Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008)). The Second Circuit discussed Twombly in the context of pro se complaints:
Boykin, 521 F.3d at 214 (citing Erickson v. Pardus, 551 U.S. 89 (2007)).
Even after Twombly and Iqbal, when reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel and must construe a pro se complaint liberally. Adams v. New York State Educ. Dep't, 2010 WL 624020, at *20 (S.D.N.Y. 2010) (citing Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
In the prior MDO, the Court did not specifically cite to the Twombly and Iqbal holdings. However, measured by any standard, plaintiff's complaint satisfies Fed. R. Civ. P. 8(a)(2). See Conley, 355 U.S. at 47; see also Twombly, 127 S.Ct. at 1964 (the Court recognized that Federal Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," to provide "fair notice" to the defendant of the claim and "the grounds upon which it rests"). In the prior MDO, the Court set forth an exhaustive review of the allegations and defendant's contentions on the motion to dismiss and found, "[g]iven plaintiff's pro se status, it is premature to make a determination regarding this prima facie element of his discrimination claim. While the complaint is by no means a wealth of factual information, it gives defendant fair notice of the basis of plaintiff's claim." Upon review of the MDO and defendant's motion herein, this Court finds no basis upon which to reconsider or disturb that holding. While the Court did not specifically cite to Twombly or Iqbal, defendant has not proven that that was a clear error of law that would have altered the conclusion reached by the Court.
In further support of the motion to reconsider this portion of the prior Order, defendant cites to the case of Duncan v. Shalala, 2000 WL 1772655 (E.D.N.Y. 2000) and "the host of decisions around the country which have held that the denial of hardship transfer requests were not adverse employment actions". In the prior MDO, the Court discussed Duncan and noted:
See Giarrizzo v. Mukasey, 07-CV-801, Dkt. No. 134, p. 25.
Defendant presents no new caselaw or any argument with respect to Duncan or other arguably relevant cases. Defendant merely attempts to relitigate and reargue issues previously considered and addressed by this Court.
In further support of reconsideration, defendant argues that plaintiff should be precluded from seeking relief due to his failure to exhaust administrative remedies. Defendant contends, "the MDO concluded that the FBI waived the 45-day deadline for plaintiff to contact an EEO counselor" and that this conclusion was "erroneous". Defendant misinterprets the prior holding. In the prior MDO, the Court concluded that, "the date of the discriminatory act was October 8, 2003". However, with regard to the wavier of timeliness, the Court held:
Id. at 22. Thus, in the prior MDO, the Court made no determination regarding the waiver defense but rather, indicated that additional discovery was necessary. Defendant has not established any clear error of law and has not provided any other rationale for reconsideration of this portion of the prior MDO.
Defendant also argues that the Court mistakenly relied upon the Second Circuit case of Bruce v. U.S. Dep't of Justice, 314 F.3d 71 (2d Cir. 2002). Defendant cites to a subsequent ruling by the Circuit in the case of Lanham v. Mansfield, 400 F. App'x 609 (2d Cir. 2010) and claims that the holding supports the conclusion that plaintiff is barred from seeking relief due to his failure to exhaust administrative remedies.
Based upon the aforementioned, the Court holds that defendant failed to meet the burden of establishing that he is entitled to relief under Rule 7.1(g). Thus, this Court declines to reconsider the prior ruling of the Court. Accordingly, defendant's motion to reconsider the Court's decision to deny defendant's motion to dismiss is denied.
Defendant argues that this Court should reconsider the prior ruling allowing plaintiff to supplement his complaint for the following reasons: (1) the order is inconsistent with prior rulings; (2) allowing defendant to sue defense counsel will violate caselaw; and (3) allowing plaintiff to sue defendant for statements made by defense counsel violates privilege.
In the prior MDO, the Court granted plaintiff's motion to supplement his complaint. On April 18, 2011, plaintiff filed a supplemental complaint. (Dkt. No. 139). On May 4, 2011, prior counsel for defendant, Charles Roberts, filed the within motion. On July 22, 2011, defendant filed an answer to the supplemental complaint through new counsel, James Cho. (Dkt. No. 156).
The Court has reviewed defendant's arguments and finds no basis upon which to reconsider the Court's decision to allow plaintiff to supplement his complaint. Accordingly, defendant's motion to reconsider this portion of the prior MDO is denied. However, the Court will address the substance of the supplemental complaint as defendant also filed a motion to dismiss.
On July 22, 2011, defendant moved to dismiss plaintiff's third cause of action for failure to state a cause of action pursuant to Fed. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Defendant argues that plaintiff failed to allege the essential elements of a retaliation claim and improperly based his supplemental complaint upon the conduct of defense counsel. Moreover, defendant argues plaintiff's attempt to assert a First Amendment cause of action against the Attorney General in his official capacity, is improper and that the claim must be dismissed for lack of subject matter jurisdiction. In the alternative, defendant argues for dismissal of the third cause of action because plaintiff failed to exhaust his administrative remedies.
"Generally, Title VII, protects individuals from actions injurious to current employment or the ability to secure future employment." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). "A plaintiff may be able to state a claim for retaliation, even though he is no longer employed by the defendant company, if, for example, the company `blacklists' the former employee, wrongfully refuses to write a recommendation to prospective employers, or sullies the plaintiff's reputation." Id. (internal citations and citations omitted). "Poor recommendations, refusals to furnish recommendations, or threats to future employers may be discriminatory practices if done in direct retaliation . . ." Beckett v. Prudential Ins. Co. of Am., 893 F.Supp. 234, 240 (S.D.N.Y.1995).
In the third cause of action, plaintiff alleges:
Pltf. Complt at ¶ 253-260.
Plaintiff resigned from his position with the FBI in 2004. Thus, it has been seven years since he was employed with the FBI. In the supplemental complaint, plaintiff failed to allege that he suffered any adverse employment action or any action that would impact any future employment opportunity. See Burnett v. Trinity Inst. Homer Perkins Ctr., Inc., 2011 WL 281023, at *3 (N.D.N.Y. 2011) (the defendant, "was entitled to exercise its legal rights and engage in legal advocacy, and as a result, such conduct may not serve as a basis for a retaliation claim"). Plaintiff has not alleged that defendant's actions had any impact on plaintiff's current employment situation, his efforts to find a new job, or that defendant, in anyway, hindered prospective employment. See Patel v. Lutheran Med. Ctr., Inc., 753 F.Supp. 1070, 1074-1075 (E.D.N.Y. 1990) (a claim of retaliation requires an impact on the plaintiff's ability to continue or procure employment). The supplemental complaint contains no allegation of any
Moreover, to the extent that plaintiff attempts to plead a First Amendment claim against defendant in his official capacity, that claim must also be dismissed.
It is hereby
