Summary
finding that excessive absences indicate a legitimate, nondiscriminatory reason for termination
Summary of this case from Campbell v. County of OnondagaOpinion
98 Civ. 5202 (JSM)
July, 2000
Christopher B. Molokwu, Newark, New Jersey, for plaintiff.
Michelle M. Buescher, Corporation Counsel of the City of New York, New York, New York; Gregg Douglas Weinstock, Garbarini Scher, P.C., New York, New York; Joel Spivak, Mirkin Gordon, Great Neck, New York, for defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action alleging that a variety of wrongs were done to him in connection with his employment as a teacher by the New York City Board of Education and the termination of that employment. Among other things he alleges that he was discriminated against on the basis of his race and an alleged disability.
The City of New York, the New York City Board of Education, Rudolph Crew, Steven Schwartz, Joyce Coppin, Elizabeth Leong, Edward Stancik, and Andrew Jenkins (collectively, the "City Defendants") move to dismiss Plaintiff's employment discrimination claims pursuant to Title VII and the Americans with Disabilities Act ("ADA") on the ground that the complaint fails to state a cause of action under these statutes and that these claims are time-barred because Plaintiff did not file his complaint within ninety days of receipt of his right-to-sue letter, as required by 42 U.S.C. § 2000e-5(f)(1).
The procedures of 42 U.S.C. § 2000e-5 are applicable to claims brought pursuant to the ADA. See 42 U.S.C. § 12117 (a).
Plaintiff filed his original complaint on July 22, 1998. At the Court's direction, Plaintiff filed an amended complaint on September 1, 1998. The Equal Employment Opportunity Commission issued Plaintiff's notice of right to sue on November 23, 1998, and this notice is presumed to have been received on November 26 — three days after mailing. See Fed.R.Civ.P. 6(e). Finally, Plaintiff filed his second amended complaint ("Second Amended Complaint") on March 15, 1999, at the Court's direction. In this last complaint, he pled his receipt of the right-to-sue letter and appended a copy of the letter as an exhibit.
The City Defendants' motion to dismiss the claims in his Second Amended Complaint as time-barred because the Second Amended Complaint was not filed within 100 days of receipt of the right-to-sue letter is denied. While the City Defendants would be correct that the claims asserted would have been time-barred if there had been no action pending at the time the right-to-sue letter was received, for statute of limitation purposes those claims are timely because they relate back to the original complaint. See Wilburn v. Dial Corp., 724 F. Supp. 530 (W.D. Tenn. 1989); see also Kohn v. GTE North, Inc., 754 F. Supp. 563 (S.D.Ohio 1990). In Wilburn, the plaintiff filed a Section 1981 complaint on August 26, 1987, received a right-to-sue letter on October 28, 1988, and filed an amended complaint adding a Title VII claim on April 12, 1989 — over ninety days after receiving the right-to-sue letter. The court found that under Fed.R.Civ.P. 15(c), the plaintiff's Title VII action in the amended complaint related back to the date of his original complaint because both complaints arose out of the same facts and the original complaint provided the defendants with notice of the plaintiff's Title VII allegations within the proscribed statutory period. See Wilburn, 724 F. Supp. at 535; see also Kohn, 754 F. Supp. at 569.
Here, as in Wilburn, Plaintiff's original complaint and his Second Amended Complaint arise out of the same facts and the original complaint provided the defendants with notice of the substance of his allegations throughout the ninety day period in which his Title VII and ADA claims were required to be filed.
While the Second Amended Complaint must be considered prematurely filed since it relates back to July 22, 1998, courts in this circuit have held that premature filing does not defeat a Title VII complaint. See, e.g., Gadbois v. Rock-Tenn Co., Mill Div., Inc., 984 F. Supp. 811, 817 (D.Vt. 1997); Lundy v. OOCL (USA), Inc., No. 97 Civ. 3899, 1997 WL 570582, at *2 (S.D.N Y Sept. 11, 1997); Kounitz v. Slaatten, 901 F. Supp. 650, 655 (S.D.N.Y. 1995); People v. Holiday Inns, Inc., 656 F. Supp. 675, 678 (W.D.N.Y. 1984).
Although Plaintiff's discrimination claims are not time-barred, Plaintiff's Second Amended Complaint fails to plead a claim of either race or disability discrimination. In order to survive a dismissal motion directed at either his race or disability discrimination claim, Plaintiff must allege at least that (1) he was a member of a protected class; (2) he was performing his duties satisfactorily; (3) he was subjected to an adverse employment decision; and (4) his discharge occurred in circumstances leading to an inference of discrimination based upon his membership in the protected class. See Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973)).
While the Second Amended Complaint alleges a litany of wrongs allegedly perpetrated against Plaintiff, it does not allege any facts that, if proved, would demonstrate that the actions of which he complains were the result of either race or disability discrimination. Although the Second Amended Complaint refers to remarks that would evidence an intent to discriminate allegedly made by one now deceased supervisor, Plaintiff also blames many others for his problems. The Second Amended Complaint does not demonstrate how this deceased supervisor was responsible for Plaintiff's termination, which occurred only after the Chancellor, Rudolph F. Crew, acting on the recommendation of the Supervising Superintendent, Division of High Schools, requested the New York City Board of Education to prefer charges against him.
The fact that Plaintiff was terminated only after a hearing at which he was found to have been absent excessively also indicates that there was a legitimate non-discriminatory reason for his termination. Thus, Plaintiff's employment discrimination claims against all defendants must be dismissed.
Plaintiff's remaining federal claim is that he was denied due process during the course of the investigation and hearing that resulted in his termination. Plaintiff's claim that he was denied his Miranda rights is without merit since those rights apply only to a person in custody in connection with a criminal investigation.
While Plaintiff contends that he was denied due process in the hearing resulting in his termination, his Second Amended Complaint clearly demonstrates that he was on notice of the hearing and had ample opportunity to present evidence. See generally Doe v. Simon, No. 99-0282, 2000 WL 1014869 (2d Cir. July 24, 2000). The fact that the arbitrator refused to accept Plaintiff's undocumented assertions that he was too ill to attend the hearings, after being given several opportunities to appear, does not demonstrate even an abuse of discretion by the arbitrator and certainly does not establish a lack of due process. Thus, Plaintiff's claim that he was denied due process is dismissed.
Since all of the Plaintiff's federal claims are dismissed, the Court will not exercise supplemental jurisdiction over the state law claims.
For the foregoing reasons, the Second Amended Complaint is dismissed.
SO ORDERED.