Submitted: October 13, 2017
from the August 31, 2016 judgment of the United States
District Court for the District of Connecticut (Hall,
C.J.; Merriam, M.J.) dismissing Hardaway's third
amended complaint. Because the district court erred in
holding that administrative exhaustion must be pleaded in the
complaint, we reverse and remand for further proceedings.
HARDAWAY, pro se, Windsor, C.T.
JONATHAN H. BEAMON, Senior Assistant Corporation Counsel,
Hartford, CT for Defendant-Appellee.
Before: WINTER, CALABRESI, and POOLER, Circuit Judges.
POOLER, Circuit Judge:
Curtis Hardaway, proceeding pro se, appeals from the August
31, 2016 judgment sua sponte dismissing his third amended
complaint against the City of Hartford, the Hartford
Department of Public Works (the "Department"), and
five Doe defendants. Hardaway, an African American and former
employee of the Department, alleged that he was subjected to
discrimination and retaliation after he filed complaints
against the Department with the Occupational Safety and
Health Administration ("OSHA"). As relevant here,
the district court dismissed Hardaway's Title VII claims
and a state law claim of negligent infliction of emotional
distress because Hardaway failed to plead facts relating to
we hold that administrative exhaustion under Title VII is an
affirmative defense, we reverse the district court's
judgment as to Counts I, III and V of the third amended
complaint, and remand for further proceedings.
worked for the Department of Public Works for over 20 years.
In 2011, he noticed worsening safety violations by the
Department. In late 2013, after being placed in a
"dangerous life and death hazardous working environment,
" Hardaway photographed the safety violations. Third
Amended Complaint at ¶¶ 11-12, ECF No. 26,
Hardaway v. Hartford Public Works Dep't, No.
16-cv-00115 (D. Conn. July 18, 2016). When he showed his
white supervisor the photographs, the supervisor told
Hardaway to get back to work. According to Hardaway, his
supervisor would not have treated him that way were he white.
Further, his "[w]hite coworkers [were] not forced to
work in the dangerous working environment." Id.
at ¶ 24.
Following his supervisor's inaction, Hardaway filed a
complaint with OSHA regarding his working conditions.
Thereafter, he was threatened, harassed, and intimidated. He
was identified as a "troublemaker, " called
"bitch, gay, a person that will complain to OSHA, "
and told to "'play ball' and stop asking safety
questions." Id. at ¶ 13. Additionally, he
was denied overtime and suspended because of his OSHA
complaint. In August 2014, a white supervisor told Hardaway
that if he stopped reporting safety violations, his demotion
would "go away" and his overtime would be
"reinstated." Id. at ¶ 14. Hardaway
then filed another complaint with OSHA, asserting
discrimination and retaliation because of his prior OSHA
complaint. In February 2015, he was told to "stop acting
like a bitch running to OSHA like a little girl" and
that if he stopped reporting safety violations
"everything [would] go back to normal."
Id. at ¶ 15. He filed another complaint with
OSHA and was fired three months later. According to Hardaway,
he would not have been fired were he white.
brought suit on January 26, 2016, alleging discrimination and
retaliation claims. On August 31, 2016, the district court
sua sponte dismissed Hardaway's third amended complaint,
adopting the recommended ruling of the magistrate judge. The
district court reasoned that Hardaway had pled sufficient
facts to support Title VII claims of employment
discrimination and a hostile work environment, but those
claims nonetheless were not viable because Hardaway failed to
plead facts relating to administrative exhaustion with the
Equal Employment Opportunity Commission ("EEOC").
The district court declined to exercise supplemental
jurisdiction over the state law claim of negligent infliction
of emotional distress.
review de novo a district court's sua sponte dismissal
under 28 U.S.C. § 1915(e)(2). Giano v. Goord,
250 F.3d 146, 149-150 (2d Cir. 2001), abrogated on other
grounds by Porter v. Nussle, 534 U.S. 516 (2002). To
avoid dismissal, a complaint must plead "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). We afford a pro se litigant
"special solicitude" by interpreting a ...