Both parties have offered "matters outside the pleadings" in support of or in opposition to this motion. Defendants' Mem., Exs. B-O, T, U; Plaintiff's Response and Answer to Defendants' Motion to Dismiss, Exs. A-K. Rule 12(b) provides that when such matters are presented and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56 and that parties shall be given reasonable opportunity to present all material made pertinent to such a motion. This Court notified counsel in a February 7, 1994 Order that, inter alia, the motion to dismiss the Equal Protection and Due Process Clause claims would be treated as a motion for summary judgment.
Pursuant to Fed. R. Civ. R. 56(c), a trial judge may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. In determining whether any genuine issue of material fact is presented, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. Walther v. Bank of New York, 772 F. Supp. 754 (S.D.N.Y. 1991). However, once the moving party has met its initial burden of demonstrating the absence of a material issue of fact "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
1. Title VII
Plaintiff brings this action, inter alia, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendants discriminated against him on the basis of religion. Third Amended Complaint at I. Defendants argue, inter alia, that the Title VII claim should be dismissed as time-barred, or, in the alternative, dismissed as to certain defendants for failure to name these defendants as respondents in the EEOC complaint.
To be timely, a Title VII claim must be filed in federal court within 90 days of receipt of the "right-to-sue" letter. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984). Failure to comply with this time requirement will result in dismissal of the complaint. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Sheehan v. Purolator Courier Corp., 676 F.2d 877, 881 (2d Cir. 1981), cert. denied, 488 U.S. 891, 102 L. Ed. 2d 216, 109 S. Ct. 226 (1988); Brown v. Enzyme Dev. Div. of Biddle Sawyer Corp., 780 F. Supp. 1025, 1026 (S.D.N.Y. 1992).
Plaintiff had 90 days from receipt of the EEOC right-to-sue letter to file this Title VII action. In a Title VII case brought by a pro se plaintiff, the Second Circuit stated that in the absence of a recognized equitable consideration, even one day over this 90-day period would be too late. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (dismissal of pro se complaint filed 97 days after receipt) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)); see also, Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984) (dismissing pro se complaint for failure to file within 90 days, stating "procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants").
Plaintiff's right-to-sue letter is dated January 17, 1992. Plaintiff alleges in the most recent Complaint that he received this letter on January 17, 1992. Third Amended Complaint at II. However, in a prior Complaint, he alleged receipt of the letter on January 23, 1992. Second Amended Complaint at 3. Under Fed. R. Civ. P. 6(e), the presumed date of receipt is January 20, 1992, or three days after January 17.
Construing the facts in a light most favorable to plaintiff, viz., that plaintiff received the letter six days after it was sent by certified mail, this Court will consider January 23, 1992 as the date of receipt. Plaintiff filed this Title VII action on April 23, 1992, which is 91 days after receipt of the right-to-sue letter. Therefore, because plaintiff fails to allege any equitable considerations and because this Court does not discern any, this Title VII action is dismissed for failure to file within 90 days of receipt of the right-to-sue letter. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149, 104 S. Ct. 1723, 1724-25, 80 L. Ed. 2d 196 (1984); Johnson v. Al Tech Specialties Steel Corp. 731 F.2d 143, 146 (2d Cir. 1984).
Additionally, as a general rule, one not named in the EEOC complaint may not be sued individually in a later Title VII action. § 2000e-5(f)(1); Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 497 (S.D.N.Y. 1989) (citing Alcena v. Raine, 692 F. Supp. 261, 269 (S.D.N.Y. 1988)). An exception exists when there is "substantial identity" between the party named in the EEOC charge and the unnamed individual defendants, and the latter had actual notice that their individual conduct was being investigated. Giuntoli, 726 F. Supp. at 498; Allen v. Colgate-Palmolive Co., 539 F. Supp. 57, 69 (S.D.N.Y. 1981).
The NYPD was the only respondent named in the EEOC complaint, and there is no allegation that Dinkins, Fernandez, Ryan and the Board of Education had "actual notice" that their conduct was being investigated. Furthermore, these individuals do not enjoy "substantial identity" with the NYPD. Giuntoli, 726 F. Supp. at 498. Therefore, in the alternative, the Title VII charges against defendants Dinkins, Fernandez, Ryan and the Board of Education are dismissed for failure to name these individuals in the EEOC complaint.
2. Section 1981 Claim
Plaintiff states that jurisdiction for his action is based on, inter alia, 42 U.S.C § 1981. Third Amended Complaint at 15. Presumably, this claim is based on plaintiff's dismissal from the NYPD and the Board of Education. Each dismissal will be discussed separately. Section 1981 provides that all persons have the same right to make and enforce contracts as is enjoyed by white persons. 42 U.S.C. § 1981(a). It has been held that Section 1981 affords protection to Orthodox Jewish persons. LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261, 267 (S.D.N.Y. 1991) (citing Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 618, 107 S. Ct. 2019, 2022, 95 L. Ed. 2d 594 (1987)).
The Supreme Court recently held in the context of a Section 1981 action that the Civil Rights Act of 1991, which took effect on November 21, 1991, has no retroactive effect. Rivers v. Roadway Express, 1994 U.S. LEXIS 3924 (April 26, 1994). At the time plaintiff was terminated from the NYPD, January 14, 1991, claims regarding termination of a contract were not actionable under Section 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989); Patterson v. Intercoast Management of Hartford, 918 F.2d 12 (2d Cir. 1990), cert. denied, 500 U.S. 906, 111 S. Ct. 1686, 114 L. Ed. 2d 81; Whitfield v. Forest Elec. Corp., 772 F. Supp. 1350 (S.D.N.Y. 1991). Moreover, this Court fails to discern any other theory for a cause of action based on Section 1981 alleged in the Complaint. Therefore, plaintiff's Section 1981 claim against the NYPD for his termination is hereby dismissed for failure to state a cause of action.
Under the amended Civil Rights Act, "make and enforce contracts" includes the termination of contracts, and therefore a claim of discriminatory discharge could arise under Section 1981. 42 U.S.C. § 1981 (1993). Plaintiff may assert a Section 1981 cause of action based on his termination by the Board of Education, which occurred after November 1991. However, according to the plain language of Section 1981, plaintiff's claim would have to be based on a contractual relationship with the Board of Education, and there is no allegation of such a relationship. See generally, Krulik v. New York City Bd. of Educ., 781 F.2d 15, 23 (2d Cir. 1986). The terms of plaintiff's employment with the Board of Education was governed by N.Y. Civ. Ser. Law § 65. Under this section, plaintiff's employment with the Board were terminable at will.
Moreover, plaintiff fails to specifically allege that his termination by the Board of Education was discriminatory. Third Amended Complaint at 13. Instead, plaintiff alleges that the Board of Education "unduly fired the Plaintiff" because of "pressure provided by the Police Department." Id. at 12. Accordingly, plaintiff's claim for a Section 1981 violation against the Board of Education, if any, is also dismissed for failure to state a claim.
3. Section 1983 Claims
The Second Circuit recently explained that "a Title VII plaintiff is not precluded from bringing a concurrent § 1983 cause of action, so long as the § 1983 claim is based on a distinct violation of a constitutional right." Gierlinger v. New York State Police, 15 F.3d 32 (2d Cir. 1994); see also, Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 62 U.S.L.W. 3569 (1994) (citing Day v. Wayne County Bd. of Auditors, 749 F.2d 1199 (6th Cir. 1984)); Carrero v. New York City Housing Auth., 890 F.2d 569, 579 (2d Cir. 1989); Berl v. County of Westchester, 849 F.2d 712 (2d Cir. 1988). In the instant case, plaintiff asserts his Section 1983 claim under the First and Second Amendments, the Due Process Clause and the Equal Protection Clause.
Third Amended Complaint at 22, 18, 19, respectively. To the extent plaintiff asserts "cognizable violations of these Constitutional provisions," these claims will not be dismissed. Saulpaugh, 4 F.3d at 143.
(i) First Amendment Claim
A public employer cannot discharge or retaliate against an employee for the exercise of his free speech right. Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972); Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). In order to state a cognizable violation of his First Amendment rights, plaintiff must plead that (1) the speech for which he was terminated was constitutionally protected, and (2) the speech at issue was the motivating factor in the decision to terminate him. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). The Supreme Court in Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983), stated that the speech must involve a matter of public concern. Where the complaints of discrimination are "personal in nature and generally related to [the employee's] own situation," there is no violation. Saulpaugh, 4 F.3d at 143 (citing Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991)).
The portion of the Third Amended Complaint that addresses the First Amendment claim states that "while the Plaintiff was a Police Officer, the [NYPD] unduly pressured the Plaintiff against expressing himself to the Press as an Orthodox Jewish Member of the Force." Id. at 22. The Third Amended Complaint provides more detail where it alleges that during the course of his employment at the NYPD, plaintiff was a columnist for the Jewish Press. It asserts that the NYPD
gave critical invectives by high ranking officers regarding plaintiff's articles written in the Jewish Press, press stories written on plaintiff's volunteer social service work for the Jewish Poor, his symbolic speech: to wit; his wearing of his religious articles . . . .
The content of this speech, plaintiff's volunteer work and his wearing of religious articles, does not involve matters of public concern. Instead, the speech is personal in nature and, insofar as it concerns his wearing of religious articles, relates to his own situation within the NYPD. Ezekwo, 940 F.2d at 781.
The Third Amended Complaint additionally asserts that when plaintiff gave a radio interview, expressing his views about the NYPD's anti-Semitism, he was arrested in direct retaliation for this interview in violation of his First Amendment rights. Id. at 22-23. The arrest that plaintiff refers to was executed by the New York City Transit Authority on March 29, 1993. Third Amended Complaint at 18. Plaintiff was terminated by the NYPD on January 14, 1991. This speech, which could be construed as addressing matters of public concern, seems to have occurred at least two years after his termination from the NYPD and at least six months after his termination from the Board of Education. Plaintiff fails to state a claim under the First Amendment because the speech at issue, the radio interview, could not have been the motivating factor in the decision to terminate him. Mt. Healthy, 429 U.S. at 287.
Plaintiff fails to plead a violation of his First Amendment rights under Section 1983 because he either fails to allege protected speech or fails to allege an adverse employment action motivated by his exercise of his free speech rights.
(ii) Second Amendment Claim
Plaintiff also seeks relief for the "denial of gun permits in violation of the 2nd amendment of the United States Constitution in an arbitrary manner . . . ." Third Amended Complaint at 18. In United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the Supreme Court was faced with a Second Amendment attack on the conviction of a defendant for interstate transportation of a shotgun in violation of the National Firearms Act of 1934. The Court rejected the argument, explaining that
in the absence of any evidence tending to show that possession or use of a [shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument . . . .