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15-1232 - Zheng v. General Electric Company et al


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15-1232 - Zheng v. General Electric Company et al
October 26, 2015
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to Appoint Counsel filed by Wenchun Zheng, Ph.D..Signed by Magistrate Judge Christian F. Hummel on 10/26/2015. (hmr)REPORT-RECOMMENDATION AND ORDER: Ordered that plaintiff's IFP application (Dkt. No. 2) is Granted, and plaintiff will be permitted to proceed in this matter IFP; and Ordered that plaintiff's motion for appointment of counsel (Dkt. No. 4) is Denied, without prejudice to renew, as discussed in this Report-Recommendation and Order; Recommended that all claims against the individual defendants for violations of Title VII and the ADEA be Dismissed, with prejudice; Recommended that plaintiff's discrimination claims against the individual defendants be interpreted as if raised under the New York State Human Rights Law; and that such claims be dismissed, without prejudice, and with an opportunity to amend to demonstrate whether any of the individual defendants had the authority required by the New York State Human Rights Law and, if so, the specific involvement the individuals had with the adverse actions and how the adverse actions amounted to discrimination on the basis of his membership in a protected class; Recommended that plaintiff's defamation claims be read as if brought under New York State common law, and that the defamation claim against Austin be Dismissed, with prejudice, for failure to state a claim; and the defamation claim against defendant Craver be Dismissed, without prejudice and plaintiff be afforded an opportunity to amend his complaint in an attempt to cure the defects in this cause of action, as indicated in the above Report-Recommendation and Order; Recommended that plaintiff's Title VII claims against General Electric Company, GE Transportation, GE Power & Water, and GE Energy Storage (GMEX Technologies, LLC), proceed and Recommended that, if the District Court Judge adopts this Report-Recommendation and Order in full, plaintiff be granted Thirty (30) days from the entry of the District Court Judge's Order to file an amended complaint in accordance with the specifications set forth in this Report-Recommendation and Order and with any additional requirements or directions that may be set forth by the District Judge and Ordered that the Clerk of the Court provide plaintiff with a copy of this Report-Recommendation and Order in accordance with the Local Rules. Objections to R&R Deadline: 11/12/2015 and Case Review Deadline: 11/16/2015. - re 1 Complaint, filed by Wenchun Zheng, Ph.D., Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Wenchun Zheng, Ph.D., 4 MOTION
November 20, 2015
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DECISION AND ORDER: the Court ADOPTS the Report-Recommendation and Order (dkt. # 5) for the reasons stated therein. The amended complaint (dkt. # 7) is deemed to supercede the original complaint (dkt. # 1) in all respects. The Court offers no opinion on the legal viability of any of the claims asserted in the amended complaint. Signed by Senior Judge Thomas J. McAvoy on 11/20/2015. (hmr)
January 12, 2016
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REPORT-RECOMMENDATION AND ORDER: (1) Recommended, that plaintiff's claims pursuant to the New York State Human Rights Law in the amended complaint's sixth cause of action alleged against GE Company, Bourgeois, Craver, Austin, Trant and Shah proceed; (2) Recommended, that plaintiff's claims pursuant to the New York State Human Rights Law, insofar as alleged against defendants Crisman, O'Donnell, GE Transportation, GE Power & Water, GE Energy Storage (GEMX Technologies LLC) in the sixth cause of action of the amended complaint be dismissed, without prejudice; (3) Recommended that plaintiff's claims pursuant to 42 U.S.C. 1981 as alleged against the individual defendants in the fourth, fifth and sixth, and seventh cause of action of the original complaint be read as if they were repleaded in the amended complaint; and that (1) pursuant to the fifth cause of action of the original complaint (a) insofar as it alleges claims for age discrimination pursuant to section 1981, such claims be dismissed, with prejudice, and without opportunity to amend; (b) insofar as it alleges claims for disparate treatment against defendants Austin, Bourgeois, Shah, and Trant in violation section 1981, such claims proceed; (c) insofar as it alleges claims against defendants Bourgeois and Austin for harassment and retaliation relating to workload and assignments pursuant to section 1981 proceed; (d) insofar as it alleges a claim against defendant Craver for retaliation in violation of section 1981, such claim dismissed without prejudice, and with opportunity to amend; (e) insofar it alleges any claims against defendants O'Donnell, Chrisman, GE Power & Water, GE Energy Storage (GEMX Technologies, LLC), and GE Transportation, such claims be dismissed, without prejudice, as plaintiff failed to allege any facts to support a claim that these defendants violated section 1981; (2) plaintiff's claim for retaliation in violation of section 1981, as set forth in the sixth cause of action of the amended complaint against defendants Craver and Austin should be dismissed, without prejudice, and with opportunity to amend, as set forth in the Report-Recommendation and Order; (4) Recommended that plaintiff's claims for discrimination and retaliation in violation of 42 U.S.C. 1981 as alleged against GE Company in the fourth cause of action against of the amended complaint be read as a claim for retaliation and that such claim proceed; (5) Recommended that plaintiff's claim for harassment in violation of 42 U.S.C. 1981 alleged against GE Company in the fifth cause of action of the amended complaint proceed; (6) Recommended that plaintiff's seventh cause of action in the amended complaint alleged against defendant Bourgeois proceed insofar as it alleges claims pursuant to New York State Civil Rights Law 79; (7) Recommended that plaintiff's seventh cause of action in the amended complaint for harassment against defendant Bourgeois insofar as it purports to allege claims pursuant to the New York State Penal Law 240.25 be dismissed with prejudice and without opportunity to amend; (8) Recommended that plaintiff's tenth cause of action in the amended complaint alleged against GE Company purportedly pursuant to Title VII and Section 1981 for being an "unequal opportunity employer" be read as an unconscionability claim brought pursuant to New York State contracts principles, and such claim be dismissed, without prejudice, and with opportunity for plaintiff to amend this claim to explain, as discussed within the Report-Recommendation and Order, whether he engaged in alternative dispute resolution regarding any of the issues raised in this complaint and/or whether he did not knowingly enter into the arbitration agreement and (9) Recommended that, in addition to those claims discussed above, the following claims also survive the Section 1915(e) review: (1) plaintiff's Title VII claims against GE Company for (a) discrimination, (b) retaliation, (c) "unequal terms and conditions of employment, and (d) wrongful termination; and (2) plaintiff's Age Discrimination in Employment Act claim against GE Company and it is (10) Ordered that the Clerk of the Court serve a copy of this Report-Recommendation and Order on plaintiff in accordance with Local Rules. re 7 Amended Complaint filed by Wenchun Zheng, Ph.D. Objections to R&R due by 1/29/2016 Case Review Deadline 2/2/2016 Signed by Magistrate Judge Christian F. Hummel on 01/12/2016. (Attachments: # (1) Unpublished Decisions)(hmr)
February 4, 2016
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ended complaint is allowed to proceed; Ordered that plaintiff's seventh cause of action in the amended complaint alleged against defendant Bourgeois is allowed to proceed insofar as it alleges claims pursuant to New York State Civil Rights Law 79; Ordered that plaintiff's seventh cause of action in the amended complaint for harassment against defendant Bourgeois insofar as it purports to allege claims pursuant to the New York State Penal Law 240.25 is dismissed with prejudice and without opportunity to amend; Ordered that plaintiff's tenth cause of action in the amended complaint alleged against GE Company purportedly pursuant to Title VII and Section 1981 for being an "unequal opportunity employer" is read as an "unconscionability" claim brought pursuant to New York State contracts principles, and such claim is dismissed, without prejudice, and with opportunity for plaintiff to amend this claim to explain, as discussed within the Report-Recommendation and Order, whether he engaged in alternative dispute resolution regarding any of the issues raised in this complaint and/or whether he did not knowingly enter into the arbitration agreement and Ordered that, in addition to those claims discussed above, the following claims also survive the Section 1915(e) review: (1) plaintiff's Title VII claims against GE Company for (a) discrimination, (b) retaliation, (C) "unequal terms and conditions of employment, and (d) wrongful termination; and (2) plaintiff's age Discrimination in Employment Act claim against GE Company. Plaintiff is again reminded that an amended complaint is intended to completely replace the prior complaint in the action, and thus it "renders [any prior complaint] of no legal effect." International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). cert. denied sub nom., Vesco & Co., Inc. v. International Controls Corp., 434 U.S. 1014 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Therefore any amended complaint (i.e. a Second Amended Complaint) must include all of the allegations against each of the defendants against whom the case is going forward so that the amended complaint may stand alone as the sole complaint in this action which the defendants must answer.Signed by Senior Judge Thomas J. McAvoy on 02/04/2016. (hmr)ustin, Bourgeois, Shah, and Trant in violation section 1981, such claims are allowed to proceed; (c) insofar as it alleges claims against defendants Bourgeois and Austin for harassment and retaliation relating to workload and assignments pursuant to section 1981 such claims are allowed to proceed; (d) insofar as it alleges a claim against defendant Craver for retaliation in violation of section 1981, such claim is dismissed without prejudice, and with opportunity to amend; (e) insofar as it alleges any claims against defendants O'Donnell, Crisman, GE Power & Water, GE Energy Storage (GEMX Technologies, LLC), and GE Transportation, such claims are dismissed, without prejudice, as plaintiff failed to allege any facts to support a claim that these defendants violated section 1981; (2) plaintiff's claim for retaliation in violation of section 1981, as set forth in the sixth cause of action of the original complaint against defendants Craver and Austin, are dismissed, without prejudice, and with opportunity to amend, as set forth in the Report-Recommendation and Order; Ordered that plaintiff's claims for discrimination and retaliation in violation of 42 U.S.C. 1981 as alleged against GE Company in the fourth cause of action of the amended complaint are read as a claim for retaliation and such claim is allowed to proceed; Ordered that plaintiff's claim for harassment in violation of 42 U.S.C. 1981 alleged against GE Company in the fifth cause of action of the amDECISION and ORDER: Accordingly, the Court ADOPTS the thorough and well reasoned Report-Recommendation and Order [dkt. # 17 for the reasons stated therein. Therefore, it is hereby: Ordered that plaintiff's claims pursuant to the New York State Human Rights Law in the amended complaint's sixth cause of action alleged against GE Company, Bourgeois, Craver, Austin, Trant and Shah are allowed to proceed; Ordered, that plaintiff's claims pursuant to the New York State Human Rights Law, insofar as alleged against defendants Crisman, O'Donnell, GE Transportation, GE Power & Water, GE Energy Storage (GEMX Technologies LLC) in the sixth cause of action of the amended complaint are dismissed, without prejudice; Ordered that plaintiff's claims pursuant to 42 U.S.C. 1981 as alleged against the individual defendants in the original complaint are to be read as if they were repleaded in the amended complaint, and that (1) pursuant to the fifth cause of action of the original complaint: (a) insofar as it alleges claims for age discrimination pursuant to section 1981, such claims are dismissed, with prejudice, and without opportunity to amend; (b) insofar as it alleges claims for disparate treatment against defendants A
April 21, 2016
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and harassment against GE Company, (b) disparate treatment against defendants Austin, Bourgeois, Shah, and Trant; (c) harassment and retaliation relating to workload assignments against Bourgeois and Austin; and (5) plaintiff's claims pursuant to the New York State Human Rights Law against defendants GE Company, Bourgeois, Austin, Trant, and Shah; and it is further Recommended that, if the District Judge adopts this Report-Recommendation and Order, upon entry of the adoption of the Report-Recommendation and Order, defendants or their counsel be required to file a formal response to the second amended complaint as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants, and that the Clerk be ordered to schedule a Rule 16 Conference before the assigned Magistrate Judge; Ordered that the Clerk of the Court serve a copy of this Report-Recommendation and Order on the parties in accordance with Local Rules. Signed by Magistrate Judge Christian F. Hummel on 04/21/2016. (Attachments: # (1) Unpublished Decision, # (2) Unpublished Decision, # (3) Unpublished Decision)(hmr)on in violation of the New York State Human Rights Law proceed; (5) Plaintiff's claim against defendant Craver for retaliation in violation of 42 U.S.C. 1981 proceed; (6) Plaintiff's claim against defendant Austin for retaliation in violation of 42 U.S.C. 1981 proceed; (7) Insofar as Plaintiff's Second Amended Complaint may be read as alleging any claims against defendants Tom O'Donnell and Kristen Crisman, such claims be dismissed with prejudice and without opportunity to amend; (8) In addition to the claims discussed above, the following claims survive the Section 1915(e) initial review, for the reasons stated in this Court's January 12, 2016 Report-Recommendation and Order, Dkt. No. 17, adopted by District Judge McAvoy in his February 4, 2016 Decision and Order, Dkt. No. 18: (1) plaintiff's Title VII claims against GE Company for (a) discrimination, (b) retaliation, (c) unequal terms and conditions of employment, and (d) wrongful termination; (2) plaintiff's Age Discrimination in Employment Act claim against GE Company; (3) plaintiff's claim against defendant Bourgeois pursuant to New York State Civil Rights Law 79; (4) the following claims in violation of 42 U.S.C. 1981: (a) retaliation REPORT-RECOMMENDATION AND ORDER re 25 Amended Complaint, filed by Wenchun Zheng, Ph.D. Objections to R&R due by 5/9/2016 Case Review Deadline 5/12/2016 - Recommended that (1) Plaintiff's "Third Amended Complaint," Dkt. No. 25, be interpreted as a supplement to plaintiff's second amended complaint, Dkt. No. 22, and that (a) paragraphs 51 and 52 of the "Third Amended Complaint" be read to replace paragraphs 51 and 52 of the second amended complaint, and (b) the exhibits attached to the "Third Amended Complaint" be considered exhibits to the second amended complaint; (2) Plaintiff's Tenth Cause of Action against GE Company for "Unequal Opportunity Employer" be read as an unconscionability claim against GE Company pursuant to state contracts law, and such claim proceed; (3) To the extent plaintiff's Second Amended Complaint may be read as alleging claims against GE Transportation, GE Power & Water, and GE Energy Storage (GEMX Technologies, LLC) for (a) violations of the NYSHRL and (b) retaliation in violation of 42 U.S.C. 1981, such claims be dismissed with prejudice and without opportunity to amend; (4) Plaintiff's claim against defendant Craver for retaliati
May 9, 2016
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DECISION AND ORDER: that the Court accepts and adopts Magistrate Judge Hummel's April 21, 2016 Report-Recommendation and Order, Dkt. No. 29, in its entirety; that Plaintiff's "Third Amended Complaint," Dkt. No. 25, will be interpreted as a supplement to Plaintiff's Second Amended Complaint, Dkt. No. 22, and that (a) paragraphs 51 and 52 of the "Third Amended Complaint" are read to replace paragraphs 51 and 52 of the Second Amended Complaint, and (b) the exhibits attached to the "Third Amended Complaint" are considered exhibits to the Second Amended Complaint; that Plaintiff's Eleventh Cause of Action against GE Company for "Unequal Opportunity Employer" shall be read as an unconscionability claim against GE Company pursuant to state contracts law, and such claim may proceed; that to the extent Plaintiff's Second Amended Complaint may be read as alleging claims against GE Transportation, GE Power & Water, and GE Energy Storage (GEMX Technologies, LLC) for (a) violations of the NYSHRL and (b) retaliation in violation of 42 U.S.C. 1981, such claims are dismissed with prejudice and without opportunity to amend; (4) Plaintiff's claim against defendant Craver for retaliation in violation of the New York State Human Rights Law may proceed; that Plaintiff's claim against defendant Craver for retaliation in violation of 42 U.S.C. 1981 may proceed; that Plaintiff's claim against defendant Austin for retaliation in violation of 42 U.S.C. 1981 may proceed; that insofar as Plaintiff's Second Amended Complaint may be read as alleging any claims against defendants Tom O'Donnell and Kristen Crisman, such claims are dismissed with prejudice and without opportunity to amend; that in addition to the claims discussed above, the following claims survive the Section 1915(e) initial review for the reasons stated in Magistrate Judge Hummel's January 12, 2016 Report-Recommendation and Order, Dkt. No. 17, adopted by the undersigned in a February 4, 2016 Decision and Order, Dkt. No. 18: (A) Plaintiff's Title VII claims against GE Company for (i) discrimination, (ii) retaliation, (iii) unequal terms and conditions of employment, and (iv) wrongful termination; (B) Plaintiff's Age Discrimination in Employment Act claim against GE Company; (C) Plaintiff's claim against defendant Bourgeois pursuant to New York State Civil Rights Law 79; (D) the following claims in violation of 42 U.S.C. 1981; (i) retaliation and harassment against GE Company, (ii) disparate treatment against defendants Austin, Bourgeois, Shah and Trant; (iii) harassment and retaliation relating to workload assignments against Bourgeois and Austin; and (E) Plaintiff's claims pursuant to the New York State Human Rights Law against defendants GE Company, Bourgeois, Austin, Trant, and Shah and that the remaining defendants, or their counsel, are required to file a formal response to the Second Amended Complaint as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants, and that the Clerk is ordered to schedule a Rule 16 Conference before the assigned Magistrate Judge.Signed by Senior Judge Thomas J. McAvoy on 05/09/2016. (hmr)
June 9, 2016
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DECISION AND ORDER: Defendants' motion to compel arbitration and to dismiss the instant action [dkt. # 30] is Granted. All claims asserted in this matter are referred to arbitration in accordance with the terms of the GE Solutions Procedure, and the Second Amended Complaint, as amended, is dismissed in its entirety. The Clerk of the Court is instructed to close the file in this matter.Signed by Senior Judge Thomas J. McAvoy on 06/09/2016. (hmr)
June 9, 2016
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JUDGMENT: It is Ordered and Adjudged: that Defendants' motion to compel arbitration and to dismiss the instant action Dkt. #30 is Granted. All claims asserted in this matter are referred to arbitration in accordance with the terms of the GE Solutions Procedure. The Second Amended Complaint, as amended is DISMISSED in its entirely, pursuant to the 42 Decision and Order of the Honorable Senior Judge Thomas J. McAvoy. (hmr)