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United States District Court, Southern District of New York

August 18, 2003


The opinion of the court was delivered by: Laura Taylor Swain, District Judge


Plaintiff Donald D. James ("Plaintiff"), a former Correction Officer with the New York City Department of Correction, ("DOC"), filed this action pro se under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"), 42 U.S.C. § 1981, 1983, 1988, Article 15 of the New York State Human Rights Law, New York Executive Law section 290 et seq., ("SHRL"), and the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York, section 8-101 et seq., ("NYCHRL"). Plaintiff claims that he was discriminated against by the City of New York (the "City") and DOC (collectively, "Defendants") because of his race. Presently before the Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure "12(b)"(sic). The Court construes Defendants' motion as one brought pursuant to Rule 12(b)(6) to the extent it is premised on arguments that (i) Plaintiff's Title VII claims are barred by the statute of limitations. [ Page 2]

(ii) the complaint fails to state a claim because the actions complained of do not constitute a prohibited employment practice, and (iii) Plaintiff's claims under sections 1981 and 1983 are precluded by collateral estoppel arising from a prior determination of the New York State Division of Human Rights ("SDHR"). Defendants' motion is treated as one brought pursuant to Rule 12(b)(1) to the extent Defendants argue that Plaintiff's election to bring his state and local law claims before the relevant state agency constituted an election of remedies depriving this Court of jurisdiction to adjudicate those claims.

The Court has considered thoroughly the parties' submissions. For the reasons that follow, Defendants' motion is denied as to Plaintiff's federal claims and granted as to Plaintiff's state and local law claims.


In evaluating a motion to dismiss a complaint, the Court is obliged to take as true the facts as alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The following recitation of background fact is, accordingly, taken from the complaint.

Plaintiff, a black male, was appointed by the DOC as a Correction Officer in 1987. Compl. ¶ 16. In or about January 1996, Plaintiff requested that the City of New York stop withholding all federal income tax from his paycheck. Id. ¶ 18. In 1996, the DOC began an investigation of Correction Officers who claimed an unusual number of exemptions on their W-4 tax withholding forms and, in December 1997, Plaintiff and a large number of other Correction Officers were arrested. Plaintiff was suspended on December 2, 1997, the date of his arrest, and [ Page 3]

was terminated from his position on some unspecified later date. Id. ¶¶ 18-23. Plaintiff asserts, upon information and belief, that some white officers were allowed to make changes and corrections on their W-4 forms and were not arrested and/or were not terminated from employment. Id. ¶ 24. Plaintiff alleges he was not afforded the same opportunity. Id. Plaintiff alleges that Defendants had a disproportionate number of minority officers arrested as compared to nonminority officers. Id. ¶ 25. Plaintiff claims that, out of the approximately 1,400 officers who were investigated, only somewhere between approximately 85 and 300 were arrested, and that the overwhelming majority of those arrested were minorities, namely black and Hispanic officers, although white and Asian DOC employees also participated in the alleged wrongdoing, Id. ¶ 27.

Plaintiff alleges that the minority officers who were charged with this wrongdoing were treated much more harshly than white individuals who had been charged with much more serious crimes and that the treatment of minority officers was disparate from that of non-minority officers charged with the same or more serious crimes. Id. ¶¶ 26, 28. Finally, Plaintiff claims that, by terminating Plaintiff without preparing and serving formal disciplinary charges against him, without allowing him the requisite time to respond to same, and without holding a disciplinary trial, the Defendants failed and refused to follow their own rules and regulations with regard to the proper procedure for disciplining a correction officer. Id. ¶ 29. [ Page 4]


Title VII Claims

Defendants argue that the complaint should be dismissed as barred by the applicable statute of limitations, in that all of the events complained of occurred outside the 300-day time limitation imposed by Title VII on New York employment discrimination plaintiffs. In this connection, Defendants assert that the claims clearly fall outside of the relevant time limitation because Plaintiff's employment was, by operation of law, terminated as of a date in April 1998 and further argue that the termination was not, as a matter of law, an "employment practice" actionable under Title VII.

A court must not dismiss an action pursuant to Rule 12(b)(6) unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In evaluating a motion to dismiss, the Court is obliged to take as true the facts as alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The Court is also permitted to take into account the contents of documents attached to or incorporated in the complaint, Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989), as well as those documents which are "integral" to the complaint. San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808 (2d Cir. 1996). In Swierkiewicz v. Sorema N.A., 122 S.Ct. 992 (2002), the Supreme Court overturned Second Circuit authority requiring Title VII plaintiffs to plead facts establishing a prima facie case of discrimination under the framework established by the Supreme Court in [ Page 5]

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-05 (1973). The Supreme Court held that plaintiffs must merely give defendants "fair notice of what [their] claims are and the grounds upon which they rest," Swierkiewicz, 122 S.Ct. at 999, and need not plead facts sufficient to make out a prima facie case of discrimination. Id. On a motion to dismiss a complaint, the issue "is not whether a plaintiff will prevail but whether the claimant is entitled to offer evidence to support the claims. . . .'" Villager Pond. Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), cert. denied, 519 U.S. 808 (1996).

Under the administrative remedy provision of Title VII, claims under the statute may not be brought in federal court unless a plaintiff has first filed a timely charge with the United States Equal Employment Opportunity Commission. 42 U.S.C.A. § 2000e-5. In New York, filing a charge with the Equal Employment Opportunity Commission or local agency within 300 days of the alleged discrimination is a prerequisite to bringing a Title VII action in federal district court. Alexander v. The Turner Corp., No. 00 Civ. 4677 (HB), 2001 WL 11062, *1 (S.D.N.Y. 2001); see Flaherty v. Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000). An exception to the statute of limitations, however, "extend[s] the limitations periods for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (citation omitted). This so-called "continuing violation" exception applies in cases that "involve discriminatory policies or mechanisms such as discriminatory seniority lists . . . or discriminatory employment tests," and discrete incidents of discrimination that are specifically related and "are allowed to continue unremedied for so long as to amount to a discriminatory policy or practice." Lightfoot v. Union Carbide, 110 F.3d 898, [ Page 6]

907 (2d Cir. 1997) (internal quotations omitted). In National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002), the Supreme Court held that discrete discriminatory acts are not actionable if they occurred outside of the time when plaintiff files his or her EEOC charge, even if the acts are related to acts alleged in timely filed charges. Under the charge filing requirement of Title VII, "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act[,]" such that the charge must be filed within the 300-day time period after the discrete discriminatory act occurred. Morgan, 122 S.Ct. at 2072; see also Elmenayer v. ABF Freight System, Inc., 318 F.3d 130 (2d Cir. 2003) (applying Morgan to find that employer's rejection of employee's proposed accommodation of his religious process consisted of discrete acts rather than a continuing violation). "[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Alexander, 2001 WL 11062, at *2 (citing Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1992).

Plaintiff alleges that the discriminatory actions of which he complains were related and that they culminated in the termination of his employment. Defendants, citing the October 6, 1999 filing date of Plaintiff's EEOC charge and proffering evidence of Plaintiff's April 1998 guilty plea to criminal charges in connection with the withholding tax scheme, evidence concerning an oath of office Plaintiff allegedly took, and documents allegedly executed by Plaintiff in connection with his appointment as a correction officer, argue that plaintiff's discriminatory termination charge, as well as all claims arising from events predating his termination, are untimely because Plaintiff's employment terminated as a matter of law on the date of his guilty plea (i.e., well outside the 300-day time limitation). Defendants premise their [ Page 7]

automatic termination argument on section 30(e) of the New York State Public Officers Law, which provides that a public office "shall become vacant upon . . . [the incumbent's] conviction of a felony, or a crime involving a violation of his oath of office." N.Y. Pub. Off. Law § 30(e) (McKinney 2001). Plaintiff, proffering a January 1999 letter from the Department of Corrections purporting to terminate his employment pursuant to section 30(e), argues that his termination did not occur until that time and that his Title VII action is therefore timely.

The parties' arguments on these issues clearly turn on matters outside the pleadings. Such matters are not properly considered on a motion to dismiss a complaint pursuant to Rule 12(b)(6). Given the factual allegations of discrimination set forth in the complaint, which does not specify the date as of which Plaintiff's employment allegedly terminated and which, read in the light most favorable to Plaintiff, alleges that all of the actions complained of were part of a pattern of conduct targeting minority officers for disproportionately harsh treatment in connection with the tax scheme, it cannot be said that there is no set of facts consistent with the complaint under which the Plaintiff could show that his claim is, in whole or part, timely and sustainable on the merits. Accordingly, Defendants' motion is denied as to Plaintiff's Title VII claim.

42 U.S.C. § 1981, 1983 and 1988 and Fourteenth Amendment Claims

Plaintiff claims damages under federal civil rights statutes, 42 U.S.C. § 1981, 1983, and 1988, and the Fourteenth Amendment of the United States Constitution for intentional race discrimination. Defendants argue that Plaintiff is collaterally estopped from litigating the issue of race discrimination by the finding of no probable cause on Plaintiff's race [ Page 8]

discrimination claims before the State Division of Human Rights ("SDHR"). The Complaint does not even allude to the SDHR finding; Defendant proffers a copy of the SDHR's August 2000 Determination and Order After Investigation. The Determination concludes that there was no probable cause to believe that the respondents had engaged in or were engaging in the unlawful discriminatory practices complained of in Plaintiff's complaint and ordered the complaint dismissed, finding that there was "insufficient evidence to support the [plaintiff's] contention that he was the subject of race and color discrimination by [defendant]" and that "[t]he investigation failed to uncover a causal nexus between the treatment of which [Plaintiff] complains and the basis of the allegations cited in the complaint." See SDHR Determination and Order After Investigation, Ex. C to Notice of Mot. to Dismiss.

Under New York law, "`res judicataand collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies . . . when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law. . . .'" DeCintio v. Westchester County Medical Center, 821 F.2d 111, 117 (2d Cir.), cert. denied, 484 U.S. 825 (1987) (quoting Ryan v. New York Telephone Co., 62 N.Y.2d 494, 499 (1984)). This principle is applicable to claims asserted under sections 1981, 1983, 1988 and the Fourteenth Amendment. Id. at 118 n. 13. Collateral estoppel applies "when the identical issue necessarily must have been decided in the prior action and will be decisive in the present action and the party to be precluded from litigating the issue must have had a full and fair opportunity to contest the prior determination." Doe v. Pfrommer, 148 F.3d 73, 79-80 (2d Cir. 1998). In applying collateral estoppel to administrative determinations, "`the burden rests upon the proponent of [ Page 9]

collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding.'" DeCintio, 821 F.2d at 117 (quoting Ryan v. New York Telephone Co., 62 N.Y.2d at 501).

Plaintiff asserts that the SDHR determination is not preclusive because it does not address all of the issues he seeks to raise in this Court and because he did not, in fact, have a full and fair opportunity to litigate the claim in the prior proceedings.

This issue is, again, one arising from and requiring consideration of matters outside the pleadings. Defendants' motion on this ground is denied, as the applicability of collateral estoppel is not apparent from the facts alleged in the complaint and there appear in any event to be factual issues material to resolution of the question as to whether one or both doctrines bars Plaintiffs section 1981 and 1983 claims.

State and City Claims

Plaintiff also seeks relief for alleged employment discrimination under both Article 15 of the New York State Executive Law and Title 8 of the Administrative Code of the City of New York. Defendants assert that the state claims are barred by the statutory election of remedies provision of New York Executive Law section 297(9), which provides that:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission of human rights . . . provided that, where the [D]ivision [of Human Rights] has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. [ Page 10]
N.Y. Exec. Law § 297(9) (McKinney 2001). Similarly, Title 8-502(a) of the New York City Administrative Code reads in pertinent part as follows:

any person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice.
NYC Admin. Code § 8-502(a). "[W]hen a party files a complaint with the Division of Human Rights regarding alleged discrimination, that party is thereafter barred from `commencing an action' in court regarding that discrimination." Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882 (2d Cir. 1995). "The question is whether a sufficient identity of issue exists between the complaint before the division and the instant claim." Spoon v. American Agriculturalist, Inc., 478 N.Y.S.2d 174, 175 (1984). The election of remedies doctrine prevents pursuit in court of any claims arising from the same set of facts upon which the Plaintiff sought relief in the administrative forum. Because Plaintiff's sets of claims arise of the same group of facts and it is undisputed that Plaintiff filed a complaint with SDHR, the state and city claims before this Court are barred. [ Page 11]


For the foregoing reasons, Defendants' motion to dismiss the complaint is granted in part and denied in part. The motion to dismiss is denied as to Plaintiff's Title VII (First Claim) and 42 U.S.C. § 1981, 1983 and 1983, and Fourteenth Amendment claims (Fourth through Seventh Claims). Plaintiff's state and local law claims are dismissed (Second and Third Claims).

The parties shall promptly discuss settlement of this case and shall appear before * the undersigned for a pre-trial conference on September 22, 2003 at 2:30 p.m.



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