Summary
finding plaintiff's HRL claims barred by Education Law's one-year statute of limitations
Summary of this case from Walter v. Hamburg Central School DistrictOpinion
05 CV 7260 (GBD).
September 13, 2006
MEMORANDUM DECISION AND ORDER
Pro se plaintiff Barry Koradni Solomon-Lufti brings this action against his former employer, the New York City Department of Education ("Department of Education"), his former union, the United Federation of Teachers ("UFT"), and certain named individual defendants. Plaintiff alleges that the Department of Education and its agents engaged in conduct that violated his state, federal and constitutional rights, and violated the union contract by acting in a "chain conspiracy to destroy his career."
On February 3, 2006, plaintiff made an application to this Court for appointment of counsel. On February 21, 2006, this Court issued a pro se counsel order directing the Pro Se Office to seek counsel for plaintiff in accordance with the Pro Bono Panel's procedures. In this order, the Court cautioned plaintiff: "[t]here is no guarantee that a volunteer attorney will decide to take the case. The Court will proceed with the case in accordance with the case management plan and scheduling order. . . . If no attorney volunteers to take the case, plaintiff will proceed with the case on his own, pro se."
Defendants moved to dismiss the complaint on the pleadings for lack of jurisdiction, failure to state a claim, statute of limitations and res judicata. On plaintiff's application, this Court ordered an enlargement of time to May 15, 2006 for plaintiff to file papers in opposition to defendant's motions to dismiss. No timely response was ever received by the Court. This Court thereafter sua sponte extended plaintiff's time to respond to September 1, 2006. Plaintiff has filed no opposition papers. For the following reasons, the defendants' motion to dismiss is granted.
On August 9, 2006, plaintiff wrote a letter to the Court indicating that he had been unsuccessful in his efforts to retain counsel. He also indicated that he had been hospitalized and he provided a list of his doctors and their contact information. After this Court thereafter sua sponte extended plaintiff's time to answer, he filed a notice of motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) with an attached Affidavit/Affirmation. As these are the only documents plaintiff has submitted subsequent to defendant's motion to dismiss, they will be considered as plaintiff's response.
Plaintiff began his employment with the Department of Education as a regular substitute teacher at Intermediate School 148 in September 1989. Solomon-Lufti v. Roberson, 1999 U.S. Dist. LEXIS 11535 at *2 (S.D.N.Y. July 29, 1999). In June 1996, plaintiff was terminated because he received a rating of "unsatisfactory" from the school's principal at the end of the 1995-1996 school year.Id. at *5. On June 18, 1996, the school's principal notified plaintiff that his services would not be required for the following academic year. The principal further notified plaintiff that he would be terminated as of June 30, 1996. Id.
On August 13, 1997, plaintiff filed a prior lawsuit under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, N.Y. Exec. Law § 296 and the Equal Protection Clauses of the New York State and U.S. Constitutions. See generally, Solomon-Lufti, 1999 U.S. Dist. LEXIS 11535. Plaintiff claimed that he was terminated from his job as a public school teacher because of his race, color, gender, and national origin. Id. at *5-6. He further claimed that his termination violated his due process rights, arguing that:
[the school's principal] had no basis to give him an unsatisfactory rating on his Annual Review. He maintained that he had no history of unsatisfactory ratings or observations, that the defendants tampered with the Annual Review and other documents to support his termination, that the only letter in his file was the May 1, 1996 concerning his failure to distribute report cards in a timely fashion, and that late distribution of report cards is not a sufficient reason for termination.Id. The Court granted the defendants' motion for summary judgment and dismissed that complaint. Solomon-Lufti, 1999 U.S. Dist. LEXIS 11535 at *26.
Plaintiff was subsequently reinstated by the Department of Education and, in September 2001, assigned to Morris High School as a per diem substitute teacher. Id. at *2. However, plaintiff was again terminated on June 27, 2002 after he received a rating of "unsatisfactory" for the 2001-2002 school year. Id.
According to defendant Department of Education's moving papers, plaintiff appealed his 1996 unsatisfactory rating pursuant to the Department of Education bylaws. The rating was reversed on March 19, 1999 by the Chancellor. Plaintiff was accordingly reinstated. (Dkt. 16, at 2).
On March 26, 2003, plaintiff filed a verified complaint with the New York State Division of Human Rights ("NYSDHR"), charging the Department of Education with unlawful discriminatory practice relating to his employment. He alleged that the Department of Education had subjected him to disparate treatment on the basis of his age, creed, national origin, race/color and past opposition to discrimination because he was 57 year-old, of Ethiopian origin, Jewish and Black, and had previously filed a discrimination complaint. (State Div. of Human Rights on the Complaint of Barry Koradni Solomon-Lufti v. New York City Bd. of Educ., 16GA301937 at 1, attached as Exh. 2 to Declaration of Joanna R. Helferich in Support of Defendants' Motion on the Pleadings dated February 10, 2006 (attached as Exh. 2 at to "Helferich Decl.")). He reported that the vice-principal of the middle school observed him twice during the school term for more than the normal amount of observation time, which he argued constituted discriminatory treatment. The vice-principal explained to the NYSDHR that the observations, coupled with meetings with plaintiff before and after the observations, were meant to provide constructive feedback. Id. at 2. After its investigation, the NYSDHR issued a determination on March 25, 2004 that found "No Probable Cause" to support plaintiff's complaint. The United States Equal Employment Opportunity Commission ("EEOC") adopted the NYSDHR's findings and issued a Notice of Right-to-Sue letter on May 5, 2004. (EEOC Dismissal and Notice of Rights 16GA301937 ("Right-to-Sue Letter") attached as Exh. 3 to Helferich Decl.).
Plaintiff filed this subsequent action on August 16, 2005. His complaint alleges that "members of the Board of Education and their administrators have claimed that plaintiff and his family are Hebrew Israelites, Bad Apples . . . to be gotten rid of . . . furthermore, the Defendants have BRANDED PLAINTIFF INCOMPETENT." (Compl. ¶ 10) (ellipsis in original). He also names the UFT as a defendant, claiming that the union had full knowledge of the alleged actions of the Department of Education and "did nothing to stop their conspiratorial actions — many of which violated criminal statutes." (Compl. ¶ 22).
Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) permits a party, after the pleadings are closed, to move for judgment on the pleadings. This motion "is appropriate where material facts are undisputed" after a court has considered the complaint, the answers and incorporated documents or materials, and a judgment "is possible merely by considering the contents of the pleadings." United States v. 44 Autumn Ave., 156 F.R.D. 26, 30 (E.D.N.Y. 1994) (internal quotations omitted). In considering a motion for judgment on the pleadings a court may consider "matters subject to judicial notice, and documents submitted by the moving party, so long as such documents either are in the possession of the party opposing the motion or were relied upon by that party in its pleadings." Prentice v. Apfel, 11 F. Supp. 2d 420, 424 (S.D.N.Y. 1998). This Court takes judicial notice, or incorporates by reference, the exhibits affixed to the Department of Education's motion for judgment on the pleadings.
A pro se litigant's pleadings should be construed liberally, particularly when the complaint alleges civil rights violations.See Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002). Failure to oppose the motion cannot by itself justify dismissal of the complaint. McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000); see also, DeJesus v. Sears, Roebuck Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996) and Magette v. Dalsheim, 709 F.2d 80, 802 (2d Cir. 1983). In deciding such a motion, the court is to "assume the truth of a pleading's factual allegations and test only its legal sufficiency . . ., although a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law." McCall, 232 F.3d at 323-24.
Statute of Limitations
In order to bring a timely civil rights action under Title VII, a claim must be filed within 90 days of the claimant's receipt of an EEOC right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a); Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74 (2d Cir. 2003). The requirement that a claim be brought within 90 days of receiving an EEOC right-to-sue letter is treated as a statute of limitations. If a claimant fails to bring suit within this 90-day period, the claim is time-barred. Lykes v. New York City Transit Auth., 27 F. Supp. 2d 388, 391 (E.D.N.Y. 1998).
Plaintiff was terminated from his employment on June 27, 2002; the Right-to-Sue letter of the EEOC is dated May 5, 2004; and the action was initiated on August 16, 2005. Plaintiff failed to bring suit within 90 days after the EEOC issued the Right-to-Sue letter on June 27, 2002. His Title VII claim is therefore time-barred.
Plaintiff's constitutional claims pursuant to 42 U.S.C. §§ 1983- 1985 are barred by a three-year statute of limitations.See Patterson v. County of Oneida, New York, 375 F.3d 206, 225 (2d Cir. 2004). The statute of limitations begins to toll "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir. 1987); see also Singleton v. City of New York, 632 F.2d 185, 191 (N.Y. 1980). Since plaintiff was terminated on June 27, 2002 and did not initiate this action until August 16, 2005, his constitutional claims are time-barred.
To the extent that plaintiff alleges state law claims of slander, defamation, breach of contract, and claims under New York Human Rights Law, such claims are barred by New York's one-year statute of limitations. New York Education Law § 3813 (2-b); see also Elite Assocs., Inc. v. Bd. of Educ. Longwood Cent. Sch. Dist., 284 A.D.2d 298, 299 (N.Y.App.Div. 2001) (holding that one-year statute of limitations begins to accrue when plaintiff became aware of the cause of action).
Plaintiff's New York employment law claim is barred by a four-month statute of limitations for breach of the duty of fair representation. N.Y. C.P.L.R. § 217(2)(a) (stating that any action against an employee organization that "has breached its duty of fair representation regarding someone to whom such employee organization has a duty shall be commenced within four months of the date the employee or former employee knew or should have known that the breach has occurred, . . . whichever is later.").
Lack of Subject Matter Jurisdiction
This court lacks subject matter jurisdiction over plaintiff's New York State Human Rights law claim. Plaintiff, having brought this claim before the NYSDHR prior to this action, is now barred from seeking relief on the claim in this court by Section 297(9) of the New York State Executive Law, which provides in relevant part:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . and such other remedies as may be appropriate, . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent. . . . No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article, may file a complaint with respect to the same grievance under this section.See also Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 879 (2d Cir. 1995) ("Once a complainant elects the administrative forum by filing a complaint with the Division of Human Rights, a subsequent judicial action on the same complaint is generally barred.") (internal citation omitted). The single exception to the mutually exclusive nature of the elective remedies arises when a complaint is dismissed by the Division for "administrative convenience." In this case, the NYSDHR dismissed plaintiff's case on the merits, finding "no evidence of discrimination under the Human Rights Law." (Helferich Decl., Exh. 2 at 2).
Likewise, this court also lacks jurisdiction with respect to any of plaintiff's federal claims under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 et. seq. Section 301 of the LMRA confers federal court jurisdiction in "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce." Section 152(2) of LMRA defines the term employer to exclude "any state or political subdivision thereof." Section 152(3) of LMRA defines the term employee to exclude "any individual employed by any person who is not an employer as herein defined." Consequently, the LMRA does not extend to this case because plaintiff is an employee of the New York City Department of Education. See also Harris v. United Federation of Teachers, 2002 U.S. Dist. LEXIS 10524, *2 (S.D.N.Y. 2002) and Corredor v. UFT, 1997 U.S. Dist. LEXIS 3000 (S.D.N.Y. 1997) (dismissing fair representation suit for lack of subject matter jurisdiction).
Failure to State a Claim
Plaintiff's additional claims are not ones upon which relief could be granted. Under the liberal pleading standards of Fed.R.Civ.P. 8(a), a complaint must merely contain "a short and plain statement of the claim showing that the pleader is entitled to relief." But a complaint should be dismissed if "the plaintiff can prove no set of facts in support of [a] claim which could entitle him to relief.'" Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984) (citations omitted).
Plaintiff invokes protection under Title VI, the New York Taylor Law and criminal statutes. None of these laws could be a basis of relief in his individual lawsuit. Title VI applies to discrimination related to participation in federally funded programs, not employment discrimination. 42 U.S.C. § 2000d. Plaintiff does not allege that he was excluded from participation in, or denied the benefits of, any federally funded program due to discrimination. He cannot press private causes of action under 18 U.S.C. § 241, 18 U.S.C.S. § 24 and 21 U.S.C. § 846, all of which are criminal statutes. New York State's Taylor Law applies only to collective bargaining and does not relate to an individual claim of retaliation against an employee for bringing a legal action.
Plaintiff has also not provided sufficient factual allegations to sustain his constitutional claims against the Department of Education. To hold a municipal defendant liable under 42 U.S.C. §§ 1981, 1983, and 1985 for the actions of its employees, a plaintiff must establish that the municipality itself deprived him of his constitutional rights through a "policy" or "custom."City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell v. Department of Soc. Servs., 436 U.S. 658 (1978). A "[p]laintiff cannot infer a policy from the alleged violation of his own civil rights." Anderson v. City of New York, 657 F. Supp. 1571, 1574 (S.D.N.Y. 1987). Plaintiff has not provided any evidence of concerted discriminatory policy or custom by school officials.
This case is dismissed in its entirety.
Plaintiff's complaint in this action refers to the 1996 "unsatisfactory" rating, as well as to events that occurred during prior litigation against the Department of Education. Plaintiff's claims arising out of his "unsatisfactory" rating and termination in 1996 were fully litigated, on the merits, in Civil Action No. 97 CV 6024 (JCF). Any claims that plaintiff brought, or could have brought, in the prior litigation arising from the same facts are barred by res judicata. See Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997).
SO ORDERED: