Zheng v. General Electric Company et al
| Wenchun Zheng, Ph.D. |
| General Electric Company, GE Transportation, GE Power & Water, GE Energy Storage, Richard Bourgeois, Kimberly Craver, Tom O'Donnell, Douglas Austin, Minesh Shah, Katie Trant and Kristen Crisman |
| 1:2015cv01232 |
| October 15, 2015 |
| US District Court for the Northern District of New York |
| Albany Office |
| Schenectady |
| Christian F. Hummel |
| Thomas J. McAvoy |
| Employment |
| 42 U.S.C. ยง 2000 |
| Plaintiff |
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Filing
43
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)
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Filing
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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 interpr eted 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 exhibit s 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 unconsci onability 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 Sto rage (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 reta liation 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 retalia tion 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 with out 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) wr ongful 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) Pl aintiff'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)
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Filing
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DECISION 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 Stat e 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 L aw, 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 pla intiff'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 origin al 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 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 alle ges 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 t hat 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 prej udice, 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 act ion 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 am 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 7 9; 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 witho ut 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 &q uot;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-Recommendatio n 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 ab ove, the following claims 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 complai nt] 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.3 d 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)
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Filing
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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)
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