Dwyer v. ABB Optical Group

Background

Patrick Dwyer filed this self-represented action against ABB Optical Group and ABB Concise Optical Group LLC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act of 1967. He alleged race- and color-based discrimination and retaliation during his employment at ABB Optical Group’s location in Hawthorne, Westchester County, New York. The opinion states that he worked washing optical lenses from April 2018 through December 16, 2020.

Dwyer alleged that he was falsely accused of damaging lenses, injured his finger on a lens, observed a new hire named “Carlos” putting an unknown substance into washing water, and reported these events to his supervisor. He also alleged that he was not paid at least some cash bonuses for recommending new hires and that he was fired without explanation on or about December 16, 2020.

The court had previously allowed Dwyer to proceed without paying the filing fee. It therefore screened the complaint under the law requiring dismissal of a fee-waived complaint that is frivolous, malicious, fails to state a claim, seeks money from an immune defendant, or falls outside the court’s subject-matter jurisdiction. The court also applied the rule requiring a complaint to provide a short and plain statement showing entitlement to relief, with enough facts to make a claim plausible rather than merely possible.

Defendants

The court said it was unclear which defendant Dwyer claimed had discriminated or retaliated against him. For Title VII and Age Discrimination in Employment Act claims, the employer is the proper defendant. For claims under Section 1981, Dwyer could name his employer and, under the standards described by the court, individuals who discriminated or retaliated against him. The court granted leave to amend so that he could identify the proper defendant or defendants.

Discrimination claims

The court explained that Title VII requires facts plausibly showing an adverse employment action and that race, color, religion, sex, or national origin was a motivating factor. Section 1981 requires facts showing racial-minority status, an intent to discriminate because of race, and discrimination involving an activity protected by that statute; the court stated that race must have been the reason the plaintiff would not have suffered the loss of the protected right. The Age Discrimination in Employment Act requires age to have been the but-for cause of the adverse employment action.

The court found that Dwyer alleged no facts showing that he was discriminated against because of race, color, age, or another protected characteristic. It granted him leave to amend to provide facts supporting a discrimination claim under Title VII, Section 1981, or the Age Discrimination in Employment Act.

Retaliation claims

The court explained that retaliation claims under Title VII, the Age Discrimination in Employment Act, and Section 1981 require facts showing an adverse action because the plaintiff opposed unlawful discrimination or engaged in other protected activity. The court stated that the alleged protected activity must be a but-for cause of the adverse action, not merely a substantial or motivating factor.

The court found that Dwyer alleged no facts showing retaliation for opposing an unlawful employment practice. It granted him leave to amend to state a retaliation claim under any of the three statutes.

Order and effect

The court granted Dwyer leave to file an amended complaint within 60 days of the order. The amended complaint had to be labeled “Amended Complaint,” include docket number 1:21-CV-10822 (LTS), and be submitted to the court’s Pro Se Intake Unit. It had to identify relevant people and defendants, describe what each defendant did or failed to do, provide approximate dates and locations, describe injuries, and state the relief sought. Because the amended complaint would replace the original complaint rather than supplement it, Dwyer had to repeat any original facts or claims he wanted the court to consider.

The court stated that no summons would issue at that time. It warned that, if Dwyer failed to comply within the allowed period and could not show good cause, the court would dismiss the action for failure to state a claim. The court also certified that an appeal would not be taken in good faith and denied fee-waived status for an appeal. The order directed the Clerk of Court to mail Dwyer a copy and note service on the docket. The court did not decide the ultimate merits of whether discrimination or retaliation occurred.