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,


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 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.

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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




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