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EISERT v. TOWN OF HEMPSTEAD

March 6, 1996

ANGELA EISERT and THOMAS MYLES, Plaintiffs, against TOWN OF HEMPSTEAD, TOWN OF HEMPSTEAD CIVIL SERVICE COMMISSION, NASSAU COUNTY REPUBLICAN COMMITTEE, and TOWN OF HEMPSTEAD REPUBLICAN COMMITTEE, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 Presently before the Court are three motions. The plaintiffs, Angela Eisert ("Eisert") and Thomas Myles ("Myles" collectively the "plaintiffs") have brought a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). The defendants, the Town of Hempstead (the "Town") and the Town of Hempstead Civil Service Commission (the "Commission," together the "Town defendants") have brought a motion for summary judgment by order to show cause to dismiss the remaining state law claims. The defendants Nassau County Republican Committee (the "Committee") and the Town of Hempstead Republican Committee (the "Town Committee," together the "Committee defendants") have brought a separate motion for summary judgment also to dismiss the remaining state law claims.

 I. Background

 The essence of this lawsuit is that the defendants allegedly deprived the plaintiffs "of employment through a patterned use of fraud, misrepresentation, misinformation, political patronage, abuse and manipulation of laws, rules and regulations." The plaintiffs contend that their denial of employment violated 42 U.S.C. § 1983, the First Amendment of the United States Constitution, the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, and related state law.

 The facts of this case are briefly recounted as follows. The plaintiffs, residents of Nassau County, took a civil service examination in 1987 in order to apply for the position of Assistant to the Commissioner of purchasing for the Town of Hempstead. Myles received the second highest score on the examination and Eisert received the third highest score. According to New York Civil Service Law § 61 the appointing officer, in this case Frank Lauria ("Lauria"), the purchasing Commissioner, is required to fill the position with one of the top three scorers. This method of selection is referred to as the "rule of three." If one of the top three scorers declines the position, his or her application is replaced with that of the next highest scorer. This process is repeated until the appointing officer has a pool of three applicants from which to choose.

 On August 18, 1987, the plaintiffs were told to appear for interviews. Eisert admits that during her interview she was questioned regarding her political affiliation. Further, Eisert asserts that she was originally offered a position, apparently during her interview. However, as indicated below, Lauria subsequently changed his mind. Moreover, on September 3, 1987, Eisert called Lauria's office to inquire as to whether a final hiring decision had been made. She was informed by Lauria's secretary that both Morton Yuter, the applicant with the highest test score, and Myles had declined the position although they apparently contend that they had never been offered the job. Myles however, does not allege that any misrepresentations were made to him.

 According to the plaintiffs, Morton Yuter, the applicant who had received the highest score on the examination was eliminated from the pool of three after volunteering that he would be unavailable to begin working for three weeks. Although the facts are disputed, the plaintiffs assert that Yuter was never informed that time was of the essence with respect to the job. Rather, the defendants were looking for an excuse to disregard his application and consider John Meehan, the fourth highest scorer for the position. The plaintiffs further contend that Meehan was then bribed to decline the offer so that the defendants could consider Gary Parisi, the fifth highest scorer and a Republican Committeeman who already occupied the position of Assistant to the Commissioner of Purchasing, in a provisional capacity.

 On September 9, 1987, the plaintiffs each received a letter informing them that they were not selected for the job. Although the Committee defendants used September 15, 1987 as the operative date, the Court will use September 9, 1987 to facilitate its analysis.

 The plaintiffs filed their complaint on May 26, 1993 alleging that they were denied employment in violation of their First Amendment rights to free association, the RICO statute and related state law.

 On January 26, 1996, the defendants filed two motions for summary judgment claiming that the plaintiffs' federal claims were time barred and that the pendent state law claims should be dismissed for lack of subject matter jurisdiction pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).

 As stated above, in a decision dated February 5, 1996, this Court granted the defendants' motions for summary judgment with respect to the plaintiffs' constitutional and RICO claims but retained jurisdiction over the state law claims because this case is on the eve of trial and because of the Court's concern with respect to the state law claims being untimely if they were refiled in state court.

 In finding the plaintiffs' federal causes of action time barred this Court held that their claims accrued on September 9, 1987, the date the plaintiffs were informed of the adverse employment decision, namely the decision denying them the job as Assistant to the Commissioner of Purchasing. Because section 1983 claims have a three year statute of limitations, Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994), and RICO claims have a four year statute of limitations, Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987), the complaint, which was filed on May 26, 1993, over five years later, was untimely.

 In addition this Court held that the doctrines of equitable tolling and fraudulent concealment did not apply. These doctrines toll the statute of limitations until a plaintiff discovers, or with the exercise of reasonable diligence should have discovered, the underlying cause of action. However, to "take advantage of the equitable tolling doctrine based on fraudulent concealment, 'a plaintiff must submit non-conclusory evidence of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms that he suffered.'" Eisert at *6, 1996 U.S. Dist. LEXIS 1298, *17, citing, Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (emphasis in original). Applying these standards the Court held that the plaintiffs should have known of their injury on September 9, 1987, the date they were denied the job. Moreover, since there was no evidence of the plaintiffs attempting to discover the infringement of their rights, the relevant statutes of limitations were not tolled. Accordingly, the plaintiffs' claims pursuant to section 1983 and RICO were time barred and the defendants' motions for summary judgment were granted.

 II. The plaintiffs' Rule 59 motion

 As stated above the plaintiffs move to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). However, no final judgment was entered. Accordingly, the plaintiffs' motion is properly referred to as a motion for reconsideration pursuant to Local Rule 3(j) of the Local Rules of the United States Courts for the Southern and Eastern Districts of New York. Local Rule 3(j) provides as follows:

 
A notice of motion for reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion . . . There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. No oral argument shall be heard unless the court grants the motion and specifically directs that the matter shall be reargued orally. No affidavits shall be filed by any party unless directed by the court. (emphasis added)

 The standard for granting a motion for reargument is strict "in order to dissuade repetitive arguments on issues that have already been considered fully by the Court." Ruiz v. Commissioner of the D.O.T. of City of New York, 687 F. Supp. 888, 890 (S.D.N.Y. 1988), aff'd, 858 F.2d 898 (2d Cir. 1991). Granting such a motion means that a court must find that it overlooked "matters or controlling decisions" which, if it had considered such issues, "would have mandated a different result." H. Sand & Co., Inc. v. Airtemp Corp., 743 F. Supp. 279, 280 (S.D.N.Y. 1990), aff'd in part and rev'd in part, 934 F.2d 450 (2d Cir. 1991), citing Durant v. Traditional Investments, Ltd., 1990 WL 269854 (S.D.N.Y. April 25, 1990).

 The defendants oppose the motion arguing that the plaintiffs do not contend that the Court overlooked "matters or controlling decisions," which would have mandated a different result. Rather, they assert that the plaintiff contends that the Court misinterpreted the case law regarding accrual of claims and the application of the doctrines of fraudulent concealment and equitable tolling. In addition, the defendants have also raised an issue as to whether this motion was timely filed. Nevertheless, since timeliness is not a jurisdictional requirement, and the Court believes that there was only a delay of one day, and because the Court believes that reconsideration is appropriate for the reasons stated below, the Court will now address the plaintiffs' motions on the merits.

 Eisert and Myles raise two separate arguments in their motion for reconsideration: (1) that the Court misapplied decisions in the area of employment law to determine the date the plaintiffs' causes of action accrued; and (2) that the Court should have applied the doctrines of equitable tolling and fraudulent concealment to prevent the statute of limitations from running. The Court will address each of these arguments in turn.

 A. The date of accrual

 Initially, Eisert and Myles contend that the Court incorrectly applied employment discrimination decisions to determine the date that their claims accrued. As a result, the Court wrongly applied the date of the adverse employment decision, see Eisert at *5, 1996 U.S. Dist. LEXIS 1298, *14, rather than the date from which the plaintiffs knew or should have known of their injury to bar their claims.

 The plaintiffs misinterpret the Court's earlier decision because these standards are not mutually exclusive. In its February 5, 1996 decision, the Court recognized that the date of accrual is the date "the plaintiff knows or has reason to know of the injury underlying the action." Eisert at *5, 1996 U.S. Dist. LEXIS 1298, *12, citing, Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981). Further, the Court noted that in the employment discrimination context, the cause of action accrues when the employee receives notice of his termination. Id., citing, Smith v. United Parcel Serv., 65 F.3d 266, 268 (2d Cir. 1995) (citing cases). The Court then rejected the plaintiffs' position that this should not be treated as an employment discrimination case and held that their claims accrued on September 9, 1987, the date they were notified of their adverse employment decision, namely that they were not hired.

 Of critical significance is the Court's analysis of Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980) and Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981).

 
In Ricks, the Supreme Court, reviewing a national origin discrimination case brought pursuant to Title VII and 42 U.S.C. § 1981, held that the plaintiff's cause of action accrued when he received notice that he was denied tenure as opposed to when his employment terminated. In Chardon, a section 1983 case based on First Amendment political association rights, the Supreme Court applied the Ricks standard and held that the cause of action accrued when the plaintiffs received notice of the adverse employment decision. Reading these two cases together, the Court finds that the Supreme Court has already determined that it would apply the same accrual standards in employment cases rooted in either federal anti-discrimination statutes or the Constitution.

 Eisert at *5, 1996 U.S. Dist. LEXIS 1298, *14.

 This analysis demonstrates that the standard applied by the Supreme Court in employment cases, the date of the adverse employment decision, is synonymous with the date that the plaintiff knew or should have known of his injury as required in section 1983 cases. Accordingly, the Court grants the plaintiffs' motion for reconsideration with respect to the date that their causes of action accrued, and upon reconsideration, adheres to its earlier decision.

 The plaintiffs attempt to distinguish their case from the Ricks and Chardon reasoning in that this is not an employment case because they were never actually employed. The Court declines to recognize this distinction as the plaintiffs cite no case law in support of their position and merely disregard the only case in this jurisdiction supporting the Court's earlier decision as wrongly decided. See Rodriguez v. Village of Island Park, 1991 U.S. Dist. LEXIS 9469, 1991 WL 128568, *7 (E.D.N.Y. 1991), citing, Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985) (rejecting the plaintiffs' claims in a lawsuit brought pursuant to 42 U.S.C. §§ 1981-1983 and RICO that their cause of action did not accrue until they realized that an adverse housing decision was discriminator as a result of a newspaper article).

 Parenthetically, the Court notes that even if it believed that this case was distinguishable from Chardon and Rodriguez, it would still find that the plaintiffs knew or should have reasonably known of their injuries on September 9, 1987. Eisert admits that during her interview she was asked about her political affiliation. She was then denied the job in favor of a Republican Committeeman who already held the position in a provisional capacity. The Court finds, that these events were sufficient to alert the plaintiffs to their injuries or possible damages. As a result, their causes of action accrued on September 9, 1987, even if this case was not treated as one for employment discrimination.

 B. Fraudulent concealment and equitable tolling

 The plaintiffs' second argument is that the Court improperly declined to apply the doctrines of equitable tolling and fraudulent concealment to toll the statute of limitations. As stated above, these doctrines toll the statute of limitations until the plaintiff discovers, or with the exercise of reasonable diligence should have discovered, the underlying cause of action. However, to "take advantage of the equitable tolling doctrine based on fraudulent concealment, 'a plaintiff must submit non-conclusory evidence of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms that he suffered.'" Eisert at *6, 1996 U.S. Dist. LEXIS 1298, *17, citing, Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (emphasis in original). Applying these standards the Court held that the relevant statutes of limitations were not tolled in this case.

 The plaintiffs' now move the Court to reconsider this holding on two grounds. First, Eisert contends that she did take the necessary affirmative action when she called Lauria's office to find out whether she had been awarded the job. During a conversation with Lauria's secretary, Eisert was advised that the first and second highest scorers had declined offers and as a result, Parisi, the fifth highest scorer was appointed. Eisert alleges that this statement was a misrepresentation of fact because neither Yuter nor Myles was ever offered the job, and that she relied upon this misrepresentation because she was lulled into believing that her rights had not been violated. As a result, she did not bring her lawsuit until five years after these events occurred. Therefore, the statutes of limitations should have been tolled with respect to her claims. Upon reconsideration, the Court agrees.

 As the Second Circuit recognized in State of New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.), cert. denied, 488 U.S. 848, 102 L. Ed. 2d 101, 109 S. Ct. 128 (1988), over a century ago, the Supreme Court stated that the purpose of the fraudulent concealment doctrine is to prevent defendants from concealing a fraud, or committing a fraud in a manner such that the fraud concealed itself, until such time as the party committing the fraud could plead the statute of limitations as an affirmative defense. Id. at 1083, citing, Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349, 22 L. Ed. 636 (1874). The essence of the doctrines are that the statute of limitations does not run against a plaintiff who is unaware of her cause of action where her employer's, or in this case potential employer's, misleading conduct is responsible for the employee's unawareness of her claims. Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 60 (2d Cir. 1986) (addressing the doctrine of equitable tolling).

 In recognition of these policies underlying the doctrines of fraudulent concealment and equitable tolling, the Court now vacates its earlier decision in this regard with respect to Eisert. As stated above, Eisert alleges that when she called to inquire about the status of her application, Lauria's secretary misrepresented that Parisi was hired only after Yuter and Myles declined offers consistent with the rule of three under Civil Service Law § 61. As a result, Eisert was led to believe that the hiring of Parisi was lawful. It was not until much later that Eisert discovered that Yuter and Myles were never offered the position, and that her rights were abridged. Upon reconsideration of these allegations, the Court finds that these allegations are sufficient to toll the statutes of limitations with respect to Eisert's claims, at least sufficient to present the facts to the jury.

 In reaching this conclusion, the Court recognizes that Eisert has admitted that she was questioned regarding her political affiliation during her interview for the job, and that Lauria originally offered her the job but than later changed his mind without explanation. However, upon reconsideration, the Court finds that these admissions are better applied to the factual issue and Eisert's credibility with respect to her knowledge and her claims rather than to preclude her from asserting those claims altogether as a matter of law.

 Second, both Eisert and Myles move the Court to reconsider arguing that the Court misapplied the rule of Pinaud set forth above, and requiring an affirmative showing that "the plaintiffs actually attempted to discover the alleged wrongdoing, and that their efforts were somehow thwarted by the defendants' fraudulent conduct." Eisert at *6, 1996 U.S. Dist. LEXIS 1298, *18. The plaintiffs dispute this standard because it fails to account for situations in which the plaintiffs are completely unaware of any wrongdoing. In support of their position, the plaintiffs cite Rodriguez, a decision they believe was "wrongly decided," in which the district court stated that the doctrine of fraudulent concealment requires a showing:

 
(1) that defendants concealed the existence of the cause of action from the plaintiff, (2) that plaintiff remained in ignorance until . . . three years (§§ 1981-1983), or four years (RICO) prior to the filing of the complaint, and (3) that plaintiff's ignorance was not attributable to a lack of diligence on the plaintiff's part.

 Rodriguez, at *9. The Rodriguez court further elaborated on this standard by explaining that certain wrongful acts may be committed in such a manner as to conceal them or may by their nature be self concealing. Id. While the Court agrees with the standards regarding "self concealing" acts, the Court did not address them in its earlier decision because they are inapplicable in this case.

 As stated above, Eisert admits that during her interview her political affiliation was questioned. Subsequently, the position at issue was given to a Republican Committeeman who already held the job in a provisional capacity. Moreover, the plaintiff admits that Lauria originally offered her the position but then changed his mind without explanation. These facts are sufficient to support a finding that the alleged constitutional violations were not self concealing in nature. Accordingly, Eisert's motion for reconsideration of the Court's earlier decision on this ground is denied.

 Unlike Eisert, no affirmative misrepresentations were made to Myles. In addition, the Court concludes that the events at issue are insufficient to invoke the doctrine of fraudulent concealment with respect to his claims. As the Myles supporting affidavit and deposition testimony indicate, he was not selected for the job and he knew that Parisi was. He made no effort to find out why. He then filed a lawsuit over five years later based on a newspaper article he read. If the Court applied the doctrines of fraudulent concealment and equitable tolling to his claims, the door would be opened to litigation based on stale claims turning on plaintiffs' willful ignorance. The Court is unwilling to start a descent down that slippery slope. Accordingly, the plaintiffs' motion for reconsideration on this ground is denied with respect to Myles and all of his claims remain time barred except his claim for fraud.

 As a result of these decisions, the Court will refer to the remaining claims, with the exception of the fraud claim, ...


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