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observing that the plaintiff merely alleged that he was to be made whole, with no references to the contractual provisions breached or the damages incurred
Summary of this case from Dumont v. Litton Loan Servicing, LPOpinion
10 Civ. 9027 (JPO)
06-05-2012
DONNELL GUERRERO, Plaintiff, v. FJC SECURITY SERVICES INC. et al, Defendants.
MEMORANDUM AND ORDER
:
The plaintiff pro se in this case, Donnell Guerrero, filed his complaint in this Court on November 24, 2010. (Dkt. No. 2 ("Compl.").) On February 27, 2012, Defendant New York City Human Resources Administration ("HRA") filed a motion to dismiss the claims against it in this suit. (Dkt. No. 23 (the "Motion").) As was noted in Defendant's Motion, pursuant to Local Civil Rule 6.1(b), Plaintiff had fourteen days to respond to the Motion. Plaintiff filed no response. Plaintiff was warned in a March 29, 2012 order that, by failing to respond to HRA's Motion, he risked dismissal of his claims against that defendant. (Dkt. No. 28.) Plaintiff again has filed no response. For the reasons stated below, HRA's Motion is granted. I. Background
As discussed below, HRA is not an entity that may be sued. Claims against HRA are construed herein as claims against the City of New York, but for simplicity, the City defendant is referred to as HRA.
The facts in this background section are drawn from Plaintiff's complaint; the documents attached thereto; the administrative charge plaintiff filed with the EEOC; and the complaint Plaintiff filed in an earlier action, Guerrero v. FJC Sec. Servs., Inc., No. 09 Civ. 4820 (RJS) (THK). The Court may consider all of these documents because they constitute Plaintiff's pleading, are attached to the complaint, are incorporated in the complaint by reference, or are documents of which the Court may take judicial notice. See Castagna v. Luceno, 2011 U.S. Dist. LEXIS 45567, at *14. (S.D.N.Y. Oct. 7, 2011) (deeming a plaintiff's EEOC charge incorporated by reference where it was "reference[d] . . . several times in [the] Second Amended Complaint"); see also Harris v. New York State Dep't of Health, 202 F. Supp. 2d 143, 173 n.13 (S.D.N.Y. 2002) (holding that "the Court may take judicial notice of admissions in pleadings and other documents in the public record filed by a party in other judicial proceedings").
At the time Plaintiff's complaint was filed, he was an employee of FJC Security Services, Inc. ("FJC"), a security services firm that provides security for agencies of the City of New York. FJC terminated Plaintiff's employment on December 22, 2008. (Equal Opportunity Commission Charge, July 24, 2010, Dkt. No. 24, Ex. A ("EEOC Charge"); see also Compl. at 10 of 15 (referencing the EEOC Charge).) Plaintiff filed a complaint against FJC and HRA in this Court on May 22, 2009. See Guerrero v. FJC Sec. Servs., Inc., No. 09 Civ. 4820 (RJS) (THK) (the "2009 Action"). In that action, Plaintiff asserted claims under Title VII of the Civil Rights Act of 1964 ("Title VII"). In or around February of 2010, the parties agreed to settle the 2009 Action. The parties executed a February 16, 2010 stipulation to discontinue the action with prejudice, which was so-ordered by Magistrate Judge Theodore Katz on March 5, 2010. See Guerrero, No. 09 Civ. 4820 (RJS) (THK), dkt. no. 16.
Plaintiff was reinstated to his position with FJC in May of 2009, but rather than being returned to five-day schedule, as he expected, Plaintiff was assigned to a schedule of four workdays per week. He continued that four-day schedule for one year.
Plaintiff alleges that HRA did not want FJC to assign him to another HRA facility and that HRA has a "ban policy" that adversely affects minorities. Nonetheless, Plaintiff was assigned to work at an HRA facility referred to as the Melrose Center, which is located at 260 East 161st Street, Bronx, New York. While assigned to the Melrose Center on or around May 3, 2010, Plaintiff was approached by a field inspector named Brent who said he had been trying to locate Plaintiff for an hour. Plaintiff claims he was away from his post for only about fifteen minutes to use the restroom. As a result of this infraction, Plaintiff was sent home and lost eight hours' worth of pay. Plaintiff also asserts that other securities guards were out of uniform and were intoxicated but were not reprimanded.
The Court takes judicial notice of the fact that HRA's website lists the Melrose Center as one of its facilities, located at 260 East 161st Street, Bronx, N.Y. 10451. See http://www.nyc.gov/html/hra/html/directory/job_centers_bronx.shtml (listing the address of the HRA Melrose Center); see also Sash v. Laird, 2008 U.S. Dist. LEXIS 55765, at *3 (S.D.N.Y. July 16, 2008) (taking judicial notice of information on a Federal Bureau of Prisons website). --------
On July 24, 2010, Plaintiff filed an administrative charge with the EEOC against Defendants FJC and HRA. (EEOC Charge.) The EEOC Charge discusses the 2009 Action and Plaintiff's post-reinstatement four-day work schedule, which is alleged to constitute retaliation. The EEOC Charge does not allege that HRA discriminated against Plaintiff based on race or gender after the 2009 Action. Nor does the EEOC Charge discuss Plaintiff's allegations regarding discipline he underwent on May 3, 2009 or his subsequent loss of eight hours' pay.
The EEOC issued Plaintiff a "Right to Sue" Letter on October 25, 2010. (Compl. at 9.) Plaintiff commenced this action against Defendants FJC and HRA on November 24, 2010, alleging discrimination, retaliation, and "harassment" under Title VII.
II. Applicable Standards
On a motion to dismiss a complaint pursuant to Rule 12(b)(6), the Court accepts the complaint's factual allegations as true and draws inferences only in the plaintiff's favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Nevertheless, to survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. 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, 129 S. Ct. 1937, 1949 (2009) (citation omitted). "Pro se status does not . . . excuse a plaintiff from compliance with the pleading standards of the Federal Rules of Civil Procedure." Jenkins v. New York City Dep't of Educ., 2011 U.S. Dist. LEXIS 130815, at *7-8 (S.D.N.Y. Nov. 9, 2011). At the same time, pro se complaints are held to less stringent standards than pleadings drafted by attorneys, and the court must read the plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
III. Discussion
A. HRA Is Not an Entity that May Be Sued
"The New York City Charter provides that 'all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.'" Weston v. N.Y. City Dep't of Corr. Servs., 2005 U.S. Dist. LEXIS 1365, at *1 (S.D.N.Y. Jan. 31, 2005) (quoting New York City Charter § 396). "Agencies of the City of New York are not subject to suit and cannot be held independently liable for claims against them." Richardson v. City of New York, 285 F. Supp. 2d 303, 304 (E.D.N.Y. 2003).
Accordingly, Plaintiff's claims against HRA must be dismissed. However, in light of Plaintiff's pro se status and clear intention to assert claims against the City of New York, the Court construes Plaintiff's complaint as asserting claims against the City of New York. See Fed. R. Civ. P. 21 ("On motion or on its own, the court may at any time, on just terms, add or drop a party."). So construing Plaintiff's claims is without prejudice to any defenses the City of New York may wish to assert. For simplicity, this opinion refers to the City defendant as HRA.
B. Plaintiff's Four-Day-Schedule Claims Are Time-Barred
"As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). "This exhaustion requirement is an essential element of Title VII's statutory scheme." Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993).
"In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days." Butts, 990 F.2d at 1401 (citing 42 U.S.C. § 2000e-5(e)). "When a plaintiff fails to file a timely charge with the EEOC, the claim is time barred." Id. "Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at 113; see also 42 U.S.C. § 2000e-5(e)(1). If "there is a reasonable ascertainable date on which the act . . . occurred, that is the day on which the statute beg[ins] to run. . . ." Malarkey v. Texaco, Inc., 559 F. Supp. 117, 121 (S.D.N.Y. 1982) (internal quotations omitted), aff'd, 704 F.2d 674 (2d Cir. 1983) (per curium).
Importantly, that "reasonable ascertainable date" controls even where "an employee continues to feel the effects of a discriminatory act on the part of the employer." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); see also Malarkey, 559 F. Supp. at 120 ("[W]hile employees who have been demoted continue to feel the effects of that demotion in terms of reduced salary and job opportunities . . . the critical question is whether any present violation exists.") (internal quotations omitted). "Completed acts such as a termination through discharge or resignation, a job transfer, or discontinuance of a particular job assignment, are not acts of a 'continuing' nature," and must be identified in an EEOC charge within the standard 300-day period for a Title VII claim to be brought in federal court. See Lightfoot, 110 F.3d at 907 (citation and internal quotations omitted).
Here, Plaintiff complains that he was assigned to a four-day-per-week work schedule upon his reinstatement in May 2009. Though Plaintiff continued thereafter to feel the effects of this assignment, the assignment occurred in May 2009. To complain of this assignment in federal court, Plaintiff had first to complain of the assignment in an EEOC charge within 300 days. See Malarkey, 559 F. Supp. at 121; see also Abram v. City of Buffalo, 2011 U.S. Dist. LEXIS 8325, at *11 (W.D.N.Y. Jan. 28, 2011) (dismissing claims arising out of an "alleged discriminatory schedule change" as untimely where they were not filed within the statutory 300-day period); Harris v. S. Huntington Sch. Dist., 2009 U.S. Dist. LEXIS 27392, at *27 (E.D.N.Y. Mar. 30, 2009) (dismissing claims arising out of, inter alia, defendants' discrete act of "reassigning [plaintiff] to work the night shift . . . effectively denying him the opportunity to work overtime" as untimely); Baird v. Outlook Pointe, 2008 U.S. Dist. LEXIS 71458, at *15 (M.D. Pa. Sept. 17, 2008) ("[Plaintiff] alleges several discrete acts of retaliatory discrimination: reduced hours, wrongful discipline, and termination. . . . [S]he may not recover under Title VII for any of these discrete employment practices that occurred more than 300 days prior to" filing her EEOC charge.).
Plaintiff did not file his EEOC Charge until July 24, 2010, over 300 days after the date of the alleged discriminatory schedule assignment. Any claims arising out of that assignment must be dismissed as untimely. See McGullam, 609 F.3d at 75.
C. Any Claim for Plaintiff's Lost Eight Hours' Pay Is Unexhausted
"A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts, 990 F.2d at 1401. "If a claim is omitted from an EEOC charge and does not involve the same type of discrimination as that which was submitted for investigation, the omitted claim must be dismissed." Baez v. Visiting Nurse Serv. of New York Family Care, 2011 U.S. Dist. LEXIS 133930, at *11 (S.D.N.Y. Nov. 21, 2011) (quoting Hart v. N.Y. Univ. Hosps. Ctr., 2011 U.S. Dist. LEXIS 116538, at *9-10 (S.D.N.Y. Oct. 7, 2011)).
In the Second Circuit, claims are reasonably related to those in an EEOC charge only where such claims:
(a) would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charges of discrimination, (b) allege retaliation by an employer against an employee for filing an EEOC charge, or (c) allege further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.Baez, 2011 U.S. Dist LEXIS at *10 (internal quotations and alterations omitted); see also Wiley v. Citibank, N.A., 2000 U.S. Dist. LEXIS 799, at *11-12 (S.D.N.Y. Jan 28, 2000). "In determining whether claims are reasonably related, the focus should be on the factual allegations made in the EEOC charge . . . describing the discriminatory conduct about which a plaintiff is grieving." Deravin, 335 F.3d at 201 (internal quotations and alterations omitted). "[F]actually dissimilar claims are not reasonably related to those pled in the administrative complaint because the new claims cannot reasonably be expected to fall within the scope of the administrative investigation of the initial claims." Wiley, 2000 U.S. Dist. LEXIS at *11 (citation omitted). Moreover, the "reasonably related doctrine does not excuse a plaintiff's failure to include allegations in his administrative complaint where those allegations pertained to conduct that had occurred before the administrative complain[t] was filed." Sussle v. Sirina Protection Sys. Corp., 269 F. Supp. 2d 285, 315 (S.D.N.Y. 2003).
Here, Plaintiff asserts claims that he was disciplined on May 3, 2010 and, as a result, "lost 8 hours pay." (See Compl. § II(E) at ¶¶ 3-4.) Plaintiff asserts that this incident constituted "retaliation because of complaining about discrimination and harassment." (Id. at ¶ 4.) However, these events are not mentioned in Plaintiff's July 2010 EEOC Charge. Nor are these allegations reasonably related to conduct described in the EEOC Charge. The EEOC Charge discusses Plaintiff's earlier federal suit; his reinstatement on May 25, 2009; his return to work at an HRA facility; and his purportedly discriminatory four-day work schedule. (EEOC Charge.) These allegations are distinct from Plaintiff's May 10, 2010 disciplinary loss of pay, which Plaintiff raises for the first time in his complaint. See Wiley, 2000 U.S. Dist LEXIS at *13 (dismissing constructive discharge claims for difference "in time and nature" from the discriminatory failure to promote described in a plaintiff's EEOC charge).
Further, the May 10, 2010 discipline is alleged to have occurred before Plaintiff filed his EEOC Charge on July 24, 2010. As such, Plaintiff's failure to include these allegations in the EEOC Charge cannot be excused by the reasonably related doctrine, which permits the bringing of claims "based on conduct subsequent to the EEOC charge." Butts, 990 F.2d at 1401; see also Sussle, 269 F. Supp. 2d at 315 ("The Plaintiff had an opportunity to assert his allegations about the Defendants' prior retaliatory conduct when he filed his Charge. . . ."). Accordingly, claims stemming from the alleged disciplinary loss of hours on May 10, 2010 are unexhausted and must be dismissed as procedurally barred.
D. Any Title VII Discrimination Claims Are Unexhausted
Any Title VII discrimination claims that Plaintiff seeks to assert are also procedurally barred since Plaintiff's EEOC Charge alleged only retaliation. See Baez, 2011 U.S. Dist. LEXIS, at *11 (dismissing claims of race and gender discrimination as not reasonably related where "not one of the specific allegations mentions plaintiff's race or gender . . . . [and] the charge is rooted in the allegation that plaintiff was suffering retaliatory treatment").
E. Breach of Settlement Agreement Is not Adequately Pleaded
Plaintiff also asserts that "[t]he settlement agreement [reached in the 2009 Action] was that I be made whole upon my rein-statement [sic]." (Compl. § II(E) at ¶ 1.) However, because Plaintiff does not more specifically identify how Defendants may have breached that agreement, Plaintiff fails to assert a claim for breach of contract.
"Settlement agreements are contracts and must therefore be construed according to general principles of contract law." Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999); accord Duran v. J.C. Refinishing Contr. Corp., 421 F. App'x 20, 21 (2d Cir. 2011) ("Because a settlement agreement is a contract [it] is interpreted according to general principles of contract law. . . ."). Under New York law, to state a claim for breach of contract, a plaintiff "must provide specific allegations as to an agreement between the parties, the terms of that agreement, and what provisions of the agreement were breached as a result of the acts at issue." Levy v. Bessemer Trust Co., 1997 U.S. Dist. LEXIS 11056, at *14 (S.D.N.Y. July 30, 1997). "In pleading these elements, a plaintiff must identify what provisions of the contract were breached as a result of the acts at issue." CreditSights, Inc. v. Ciasullo, 2008 U.S. Dist. LEXIS 91481, at *31 (S.D.N.Y. Sept. 5, 2008) (citation and internal quotation marks omitted).
Here, Plaintiff's conclusory assertions that the settlement agreement was to make him whole do not identify what, if any, provisions of the settlement agreement were breached and what damages resulted. As such, plaintiff has failed to state a claim for breach of the settlement agreement reached in the 2009 Action; any breach-of-contract claim Plaintiff sought to bring in this complaint is therefore dismissed. See CreditSights, 2008 U.S. Dist. LEXIS at *32 ("New York law is eminently clear that a proper breach of contract claim must identify specifically breached contract terms. None are so alleged. . . .").
IV. Conclusion
For the reasons stated above—and because the complaint neither states nor suggests any other claims with the necessary plausibility—the instant motion to dismiss Plaintiff's claims against the City of New York, discussed herein as the New York City Human Resources Administration or HRA, is hereby GRANTED.
Because it would be futile to amend the retaliation and discrimination claims Plaintiff sought to bring against the City of New York and/or HRA, those claims are dismissed with prejudice. See Van Buskirk v. New York Times Co., 325 F.3d 87, 92 (2d Cir. 2003). The contract claim that Plaintiff may or may not have sought to assert in his complaint might benefit from further factual allegations, but the Court is not inclined to grant leave to amend that claim because it is a state-law claim and all federal claims against the City of New York have been hereby dismissed. Cf. Astra Media Group, LLC v. Clear Channel Taxi Media, LLC, 414 Fed. Appx. 334, 337 (2d Cir. 2011) ("[W]here all the federal claims have been dismissed at a relatively early stage, the district court should decline to exercise supplemental jurisdiction over pendent state-law claims.").
However, if Plaintiff would (as he indicated at docket entry number 22) like to amend his complaint in other respects, he is granted leave to do so, provided an amended complaint is filed on or before July 2, 2012.
The Clerk of Court is directed to close the motion at docket entry number 23.
SO ORDERED. Dated: New York, New York
June 5, 2012
/s/_________
J. PAUL OETKEN
United States District Judge