Sharon M. Porcellio

On July 11, 2019, U.S. Senior District Judge David G. Larimer dismissed three related cases by a pro se litigant well known to the court. Malcolm v. Assn. of Supervisors & Adm'rs of Rochester, No. 17-CV-6878L, 2019 U.S. Dist. LEXIS 115575 (W.D.N.Y. July 11, 2019) (Malcolm I), Malcolm v. Rochester City Sch. Dist., No. 17-CV-6873-DGL, 2019 U.S. Dist. LEXIS 115583 (W.D.N.Y. July 11, 2019) (Malcolm II), and Curry-Malcolm v. Rochester City Sch. Dist., No. 18-CV-6450L, 2019 U.S. Dist. LEXIS 115584 (W.D.N.Y. July 11, 2019) (Malcolm III). This batch of claims arose out of the pro se plaintiff's employment with her current employer. This was not, however, the first employer plaintiff sued. She had an established pattern of such litigation which preceded Judge Larimer's determination that the court would not tolerate duplicative, burdensome and unnecessary lawsuits and his imposition of sanctions on plaintiff for her “harassing tactics.” He noted that although pro se litigants are entitled to some accommodation, plaintiff has abused that position repeatedly. Malcolm I, No. 17-CV-6878L, 2019 U.S. Dist. LEXIS 115575, at *3.

Introduction

Each of Judge Larimer's three decisions relates to a substantially similar fact pattern, detailed in relevant part from all three cases below. Plaintiff is a 61-year-old African-American woman who sued the Rochester City School District (RCSD or the District), among others, alleging violations of state and federal law predicated upon age and racial discrimination in the workplace. As of the date Judge Larimer filed these three decisions, plaintiff was still an employee of the District. Previously, in March of 2017, however, the District terminated her position along with twenty-two other similar positions as a result of budgetary concerns. Plaintiff was then placed on a preferred eligibility list, meaning that she could be recalled and resume employment if a position opened. Sometime thereafter, the RCSD offered plaintiff an appointment, but in a different position with a lesser salary. Plaintiff declined the offer but was eventually recalled and rehired in her original position, which she still held as of the decision date.

In addition to filing five claims with the New York State Division of Human Rights (NYSDHR) against the RCSD and others, two of which seem to remain unresolved, plaintiff filed these three lawsuits in federal court against essentially the same defendants and raising exactly the same or similar claims. Judge Larimer noted that plaintiff has created a cottage industry of litigation against employers and school districts that employed her. Malcolm I, No. 17-CV-6878L, 2019 U.S. Dist. LEXIS 115575, at *4.

He further noted that as a result of plaintiff's repeated abuses she has been sanctioned previously by this court for similar behavior towards a different employer, yet another school district. See id. at *2-3, n. 1 (discussing plaintiff's similar behavior in at least six other cases, including one case in the Southern District of Mississippi and two cases that Judge Larimer decided).

Decision I: 'Malcolm I'

In Malcolm I, plaintiff sued the District, the then acting superintendent, and her union (ASAR). Specifically, plaintiff alleged that plaintiffs discriminated against her with respect to her employment in violation of the Labor Management Relations Act §301 (LMRA), 29 U.S.C. §185, 4Title VII of the Civil Rights Act of 1964 (Title VII), 2 U.S.C. §2000e et seq., the Age Discrimination and Employment Act of 1967(ADEA), 42 U.S.C. §1988, the New York Human Rights Law (NYHRL), N.Y. Exec. Law §290 et seq., 42 U.S.C. §1983, and the New York Constitution's Equal Protection Clause, N.Y. Const. Art. I §11. Id. at *6. Additionally, plaintiff asserted multiple state law claims including breach of contract, breach of collective bargaining agreement, breach of the implied covenant of good faith and fair dealing, and breach of duty of fair representation. Id. Defendants moved to dismiss the complaint, while plaintiff requested a stay in the proceeding and moved to amend her complaint.

As mentioned above, plaintiff was laid off in March 2017. Id. at *6-7. Plaintiff disagreed with the layoff and expressed her concerns to ASAR, which instructed plaintiff that she had the right to file a grievance with her direct supervisor. Id. at *7. Plaintiff failed to do so. Id. Instead, plaintiff filed the five charges with the NYSDHR mentioned above. Id. In the first two charges against RCSD, NYSDHR determined that there was probable cause and these charges are still unresolved. Id. at *7-8. These two charges were dually filed with the EEOC. Id. at *8. NYSDHR dismissed the third, fourth and fifth charges finding no probable cause, with the EEOC adopting the same findings as the NYSDHR for plaintiff's federal claims. Id. at *8. Upon receipt of her right to sue letters from the EEOC on her third through fifth charges, plaintiff filed Malcolm I and Malcolm II a day apart and Malcolm III about six months later.

First, the court tackled plaintiff's collective bargaining agreement, breach of contract, and breach of implied covenant of good faith and fair dealing claims, dismissing all because they were subsumed into her breach of duty of fair representation claim. Id. at *10. Then, it dismissed plaintiff's duty-of-fair representation claims for, among other reasons, plaintiff's failure to exhaust administrative remedies. Id.

Next, the court addressed plaintiff's ADEA, Title VII, and NYSHRL claims. It dismissed the ADEA and Title VII claims as to any individual plaintiffs named because the relevant statutes do not provide for liability against individuals. Id. at *12. The court also dismissed the NYSHRL claims against the individual plaintiffs named because plaintiff failed to plead that any of those named directly participated in the conduct that gave rise to her discrimination in the complaint. Id. at *13. Similarly, plaintiff failed to sufficiently plead facts to show that any plausible, hostile work environment, retaliation or disparate treatment that could be attributed to ASAR. To that end, the court stated that “plaintiff's vague and conclusory allegations do not cross the threshold of plausibility” and accordingly, the court dismissed plaintiff's Title VII, ADEA, and NYSDHR claims against ASAR. Id. at *16.

Further, the court dismissed the ADEA, Title VII, and NYSHRL claims against District because there are still proceedings pending in the NYSDHR and in the EEOC involving those claims. Id. That meant plaintiff failed to exhaust her administrative remedies against the District. Additionally, plaintiff's equal protection claims failed because she made only “vague and speculative accusations without any factual support.” Id. at *19.

Last but not least, the court examined whether to impose sanctions on plaintiff. “A district court, may, in its discretion, impose sanctions against litigants who abuse the judicial process … [a] demonstrated history of, for example, frivolous and vexatious litigation, is required in order for a court to prevent a litigant from filing pleadings, motions or appeals.” Id. at *22.

Here, the court found that sanctions were warranted, emphasizing that plaintiff was a repeat offender, having filed numerous lawsuits against her former employer in addition to her current employer. To that end, the court stated that

[d]espite multiple warnings in her countless lawsuits against former employers, plaintiff continues to file multiple lawsuits without regard to arguments raised by defendants … plaintiff has repeatedly abused the Court's resources, the time of counsel for defendants, as well as the time and resources of multiple administrative agencies.

Id. at *22-23.

As a result, the court permanently enjoined plaintiff from commencing any further pro se actions in federal court for any lawsuits arising out of her employment with RCSD without leave of court. The court provided a list of items with which plaintiff must comply in seeking leave of court. Id. at *23-24. This list included, among other items, a declaration prepared pursuant to 28 U.S.C. §1746 or a sworn affidavit certifying that the claims she wishes to present are meritorious and made in good faith, and a list of every suit previously filed by her or on her behalf in any federal court against each and every defendant to the suit she wishes to file. Id. Before imposing these sanctions, he noted he had done so previously in a case by plaintiff against another school district employer and had denied her relief from that injunction on two occasions. Id. at *2.

'Malcolm II' Decision

Malcolm II is nearly identical to Malcolm I. In fact, the court dismissed several claims in Malcolm II as duplicative of those in Malcolm I, stating that “[a] district court may stay or dismiss a suit that is duplicative of another federal court suit.” Id. at *5. One apparent difference between the lawsuits is that Malcolm II names different individuals than Malcolm I. However, the court dismissed these “new” claims on similar grounds.

'Malcolm III' Decision

In Malcolm III, plaintiff sued RCSD and its then acting superintendent asserting the same sort of claims as in Malcolm I and Malcolm II. However, in contrast to Malcolm I and Malcolm II, plaintiff also pled facts alleging retaliation following her recall from RCSD. More specifically, plaintiff alleged that RCSD had been retaliating against her by, among other things, allegedly recording conversations, changing her marital status on tax forms, and hacking into her personal cell phone. Id. at *3.

At the outset of Malcolm III, the court discussed the similarity of the case to the prior two lawsuits, stating that

[i]nstead of waiting for a ruling on her motion to amend the complaint in both lawsuits, plaintiff instead filed the present lawsuit adding additional factual contentions to the ones she had made in her prior filings. In fact, plaintiff does not attempt to distinguish this case from her other two, noting that the current action should be stayed pending the same NYSDHR proceedings.

Id. at *5. Furthermore, although Malcolm III and the prior two lawsuits are not identical, many of the claims in Malcolm III derive out of the same “nucleus of operative facts” Id. As for the new retaliation claim against the District, the court dismissed this claim as well because plaintiff failed to exhaust her administrative remedies and was engaged in ongoing administrative proceedings. Id. at *6-7.

Conclusion

Ultimately, the court dismissed all of plaintiff's claims in each of the three cases, denied plaintiff's requested stays, denied plaintiff's motions to amend, and further imposed the sanction of a pre-filing injunction of future claims by plaintiff. Despite the latitude afforded to pro se litigants, these three decisions reinforce the idea that the court is not a place to pursue a pattern of abuse of the system by continuing to ignore the court's warnings and filing multiple baseless lawsuits. At some point, the court is going to act to protect the time and resources of the courts, the plaintiffs, their attorneys, the various agencies, and the judicial process.

Sharon M. Porcellio is a member of Bond, Schoeneck & King, PLLC representing businesses and institutions in commercial litigation and employment matters. She can be reached at [email protected]. Alyssa Jones, an associate in the litigation department of the firm, assisted with the preparation of this article.