DiPetto v. U.S. Postal Service ( 2010 )

09-3203-cv
D iPetto v. U .S. Postal Service
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 12th day of July, two thousand ten.
PRESENT:
ROGER J. MINER,
JOHN M. WALKER, Jr.,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________________
John DiPetto,
Plaintiff-Appellant,
v. No. 09-3203-cv
U.S. Postal Service,
Defendant-Appellee.
________________________________________________
FOR PLAINTIFF-APPELLANT: John DiPetto, pro se, Roslyn Heights, NY.
FOR DEFENDANT-APPELLEE: Benton J. Campbell, United States Attorney,
Robert W. Schumacher and Baruni Nelson,
Assistant United States Attorneys, Eastern
District of New York, Brooklyn, NY.
1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
2 DECREED that the judgment of the district court is VACATED and remanded for further
3 proceedings.
4 Plaintiff-Appellant John DiPetto, pro se, appeals from the judgment of the United States
5 District Court for the Eastern District of New York (Seybert, J.), sua sponte dismissing his
6 employment discrimination claims, pursuant to Fed. R. Civ. P. 8. We assume the parties’
7 familiarity with the facts and procedural history.
8 Federal Rule of Civil Procedure 8 requires a complaint to contain “a short and plain
9 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). We
10 review a district court’s dismissal of a claim pursuant to Rule 8(a) for abuse of discretion. See
11 Boykin v. KeyCorp, 521 F.3d 202, 212 (2d Cir. 2008); cf. Sims v. Blot, 534 F.3d 117, 132 (2d
12 Cir. 2008) (“A district court has abused its discretion if it based its ruling on an erroneous view
13 of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that
14 cannot be located within the range of permissible decisions.” (alterations, citations, and internal
15 quotation marks omitted)). Although a district court may dismiss a complaint sua sponte for
16 failure to comply with Rule 8, “[d]ismissal . . . is usually reserved for those cases in which the
17 complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if
18 any, is well disguised.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quoting Salahuddin
19 v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)). While “[s]pecific facts are not necessary,” the
20 statement must “give the defendant fair notice of what the claim is and the grounds upon which it
21 rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (ellipsis omitted); see also Boykin, 521 F.3d
22 at 214.
23 We recently addressed the application of Ashcroft v. Iqbal, 129 S. Ct. 1949 (2009), to pro
24 se pleadings and noted that, even after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we
25 remain obligated to construe pro se complaints liberally. See Harris v. Mills, 572 F.3d 66, 71-72
26 (2d Cir. 2009). Thus, while pro se complaints must contain sufficient factual allegations to meet
2
1 the plausibility standard, we should look for such allegations by reading pro se complaints with
2 “special solicitude” and interpreting them to raise the “strongest [claims] that they suggest.”
3 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (emphasis in original).
4 With respect to discrimination claims, we explained in Boykin that plaintiffs are not
5 required “to plead facts sufficient to establish a prima facie disparate treatment claim” under
6 Title VII, because “the McDonnell Douglas burden-shifting framework ‘is an evidentiary
7 standard, not a pleading requirement,’ and that to require more than Rule 8(a)’s ‘simplified
8 notice pleading standard’ would unjustifiedly impose a heightened pleading requirement on the
9 plaintiff.” Boykin, 521 F.3d at 212 (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510,
10 511-13 (2002)) (citation omitted). Moreover, we have held there is no heightened pleading
11 requirement for civil rights complaints alleging racial animus, and have found such claims
12 sufficiently pled when the complaint stated simply that the plaintiffs “[were] African-Americans,
13 describe[d] defendants’ actions in detail, and allege[d] that defendants selected [plaintiffs] for
14 maltreatment ‘solely because of their color.’” Phillip v. Univ. of Rochester, 316 F.3d 291, 298
15 (2d Cir. 2003).
16 Here, reading Appellant’s amended complaint to raise the strongest claims that it
17 suggests, we find that Appellant stated he was Caucasian, described specific discriminatory
18 actions that had been taken against him by his supervisor, and alleged that he was treated
19 differently, inter alia, on the basis of his race. While Appellant did not explicitly state that he
20 was filing a Title VII claim, federal employees are restricted to challenges under Title VII when
21 complaining about employment discrimination. See Annis v. County of Westchester, 36 F.3d
22 251, 255 n.4 (2d Cir. 1994) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976)).
23 Accordingly, we conclude that Appellant’s amended complaint, unlike his original complaint,
3
1 which did not provide relevant details about his race or the race of relevant persons involved
2 with the employment actions, gave fair notice to Appellee that he was raising a claim, pursuant
3 to Title VII, on the basis that, because he was Caucasian, he received less overtime and work
4 breaks than other employees, and that sick and annual leave policies were applied differently to
5 him. See Erickson, 551 U.S. at 93 (holding that a complaint must “give the defendant fair notice
6 of what the . . . claim is and the grounds upon which it rests” (ellipsis in original)).1
7 Insofar as both the district court and Appellee argue that Appellant’s claims fail because
8 he did not attach a right-to-sue letter to his complaint, their analysis of the exhaustion
9 requirement for federal employees is inaccurate. First, Appellant was not required to
10 demonstrate at the pleading stage that his claims were administratively exhausted. See Jones v.
11 Bock, 549 U.S. 199, 216 (2007) (explaining that exhaustion is an affirmative defense and is not
12 required to be “specially [pled] or demonstrate[d] . . . in [the] complaint[ ]”). Second, as a
13 substantive matter, Appellant was not required to exhaust by securing a right-to-sue letter from
14 the EEOC. Generally, a right-to-sue letter is required when a private employee files a Title VII
15 suit in district court. See 42 U.S.C. § 2000e-5(b), (f)(1). However, Title VII suits filed by
16 federal employees are governed by 42 U.S.C. § 2000e-16 and 29 C.F.R. § 1614. See Belgrave
17 v. Pena, 254 F.3d 384, 386 (2d Cir. 2001).
18 Accordingly, we find the district court erred when it concluded that Appellant failed to
19 give fair notice of his claims as required under Rule 8(a)(2), because his “allegations, taken as
20 true, indicate the possibility of discrimination and thus present a plausible claim of disparate
1
To the extent that Appellant also contends that his supervisors discriminated in favor of
homosexuals, sexual orientation is not a protected category under Title VII. See Dawson v.
Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005). There might, however, be a pendent state
law claim. See New York State Human Rights Law, N.Y. Exec. Law § 296.
4
1 treatment.” Boykin, 521 F.3d at 215-16 (expressing no opinion regarding the merits of plaintiff’s
2 claim, but explaining that, “even after Twombly, dismissal of a pro se claim as insufficiently
3 pleaded is appropriate only in the most unsustainable of cases”); see also Swierkiewicz, 534 U.S.
4 at 514 (finding that petitioner had complied with Rule 8(a) where he had “detailed the events
5 leading to his termination, provided relevant dates, and included the ages and nationalities of at
6 least some of the relevant persons involved with his termination”).
7 For the reasons stated above, the judgment of the district court is VACATED, and the
case is remanded for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5