United States District Court, S.D. New York
November 8, 2005.
BRIAN R. COPELAND, Plaintiff,
THE NEW YORK CITY BOARD OF EDUCATION and CHERYL ROSEN, Defendants.
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM & ORDER
Plaintiff Brian R. Copeland brings this action, the most recent
in a long series of actions involving the same set of events,
pursuant to N.Y.C.P.L.R. § 205 in an attempt to seek redress from
alleged employment discrimination in violation of New York State
Human Rights Law ("SHRL") § 296, 42 U.S.C. § 2000e et seq.
("Title VII"), and 42 U.S.C. §§ 1981 and 1983. Defendants New
York City Board of Education ("Board of Education") and Cheryl
Rosen ("Rosen") (collectively "Defendants") move to dismiss the
Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on
the grounds that Plaintiff's claims are time-barred, barred by
the doctrines of election of remedies and of collateral estoppel,
that Plaintiff failed to comply with applicable notice of claim
requirements, and that Plaintiff fails to state a claim upon
which relief can be granted. For the reasons set forth below, Defendants' Motion to Dismiss
Plaintiff is an African-American male who taught at Lincoln
Academy for three years. Lincoln Academy is part of the New York
City school system. (Compl. ¶ 3). After several incidents in
which Plaintiff claims he was treated unfairly as a result of his
race or in retaliation for his support of a terminated
co-worker,*fn1 Plaintiff received an unsatisfactory rating
from the Director of the Academy, Defendant Rosen. (Id. ¶¶ 13,
14, 35, 41, 43, 45). As a result, he was given no option to
continue teaching at the school. On June 28, 1993, Plaintiff sent
a letter to Mr. Anton Klein, the Superintendent of District 3,
stating: "Please release me from my teaching assignment in
District 3. I would like to pursue employment in another
district." (Mosley Decl. at Ex. M.) Subsequently, on July 20,
1993, he was terminated from Lincoln Academy by letter.*fn2
Plaintiff claims he has repeatedly sought and been interviewed
for positions within the New York City Public Schools since the
discharge, with no success. (Compl. ¶¶ 45-47). On October 1, 1993, Plaintiff filed a Complaint with the United
States Equal Employment Opportunity Commission ("EEOC"), alleging
a campaign of harassment, the last act of discrimination having
taken place on July 13, 1993. (Mosley Decl. at Ex. B). The State
Division of Human Rights, which also investigated the charges,
and the EEOC issued their findings on February 7, 1996 and June
7, 1996 respectively. (Mosley Decl. at Exs. I and J). Both
agencies found insufficient evidence of discriminatory behavior
by either Defendant Rosen or the Board of Education. (Id.)
Shortly thereafter, Plaintiff filed a Complaint pro se in the
United States District Court for the Southern District of New
York on August 20, 1996, asserting claims of race and gender
discrimination under Title VII. (Mosley Decl. at Ex. B). In 1999,
District Judge Leisure granted Defendants' Motion for Summary
Judgment on the Title VII claims against Defendant Rosen in her
personal capacity, and granted Plaintiff's leave to file an
Amended Complaint against the Board of Education. Copeland v.
Rosen, 38 F.Supp. 2d 298, 302-03, 309 (S.D.N.Y. 1999)
("Copeland I"). Plaintiff filed an Amended Complaint on June 4,
1999, adding additional claims under the SHRL, § 1981, and §
1983. (Mosley Decl. at Ex. C.)
Approximately one year later, Judge Leisure dismissed
Plaintiff's action without prejudice pursuant to Rules 41(b) and
16(f) of the Federal Rules of Civil Procedure for failure to prosecute and failure to obey scheduling orders issued by the
court. Copeland v. Rosen, 194 F.R.D. 127, 131-34 (S.D.N.Y.
2000) ("Copeland II"), reconsideration denied, Copeland v.
Rosen, 196 F.R.D. 20 (S.D.N.Y. 2000) ("Copeland III"). The
court had issued, at that point, three warnings to Plaintiff's
counsel that her "dilatory manner of proceeding and her failure
to heed the Court's orders would result in dismissal of
plaintiff's suit." Id. at 127.*fn3 On appeal, the Second
Circuit remanded the case to the District Court to determine
whether Judge Leisure intended to "impose a sanction less drastic
than one that [was] essentially a final dismissal" and requested
that the District Court address its intentions where refiling
would be barred. Copeland v. Rosen, 25 Fed. Appx. 17, 19-20,
2001 WL 1486007, at *2 (2d Cir. No. 19, 2001) ("Copeland IV").
On remand, the District Court maintained its initial ruling,
claiming that the "effect of final extinguishment of Plaintiff's
Title VII claims would not change this Court's previous ruling."
Copeland v. Rosen, 208 F.R.D. 507, 513 (S.D.N.Y. 2002)
("Copeland V"), aff'd 2003 U.S. App. LEXIS 744 (2d Cir. Jan.
16, 2003). The District Court dismissed the case without
prejudice, noting that based on the egregious behavior of the
Plaintiff's attorney throughout the history of the case, it could have dismissed the case with prejudice if
it had chosen to do so. Id. Aware that its dismissal would
extinguish Plaintiff's Title VII claim, the court discussed the
potential virtues of New York's "savings statute," N.Y.C.P.L.R. §
205, in relation to Plaintiff's remaining claims. Id. at
513-14. The District Court stated that although it was dismissing
for failure to prosecute, which ordinarily disqualifies the use
of N.Y.C.P.L.R. § 205, by doing so without prejudice, Plaintiff
would be left to "pursue whatever causes of action remain viable
if he were to refile his action." Id. at 515.
Plaintiff filed a new complaint in the current action on March
6, 2003, in the Supreme Court of the State of New York, alleging
the same Title VII, § 1981, § 1983, and SHRL § 296 violations
previously raised. Defendants removed the case to the Eastern
District of New York on April 25, 2003. After Defendants' Motion
to Dismiss was fully submitted, Judge Dearie transferred the case
to the Southern District of New York pursuant to
28 U.S.C. § 1404. (Order of District Judge Raymond J. Dearie, dated Dec. 12,
2003.) II. DISCUSSION
In considering a 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction, a court must assume as true factual
allegations in the complaint. See Shipping Fin. Servs. Corp.
v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974)). The court should consider
a 12(b)(1) motion before ruling on any other motions to dismiss,
since dismissal of an action for lack of subject matter
jurisdiction will render all other defenses and motions moot.
See United States ex rel Kreindler & Kreindler v. United
Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993),
cert. denied sub nom. Kreindler & Kreindler v. United
Technologies Corp., 508 U.S. 973 (1993); Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
Thus, a court confronted with a motion to dismiss pursuant to
both Rules 12(b)(1) and 12(b)(6) must decide the "jurisdictional
question first because a disposition of a Rule 12(b)(6) motion is
a decision on the merits, and therefore, an exercise of
jurisdiction." Magee v. Nassau County Med. Ctr.,
27 F.Supp.2d 154, 158 (E.D.N.Y. 1998).
A.N.Y. C.P.L.R. § 205
Plaintiff has filed this suit in reliance on the New York
savings statute N.Y.C.P.L.R. § 205, which allows a six month
tolling of a statute of limitations so long as the prior suit is dismissed according to various conditions. N.Y.C.P.L.R. § 205(a)
If an action is timely commenced and is terminated
in any manner other than a voluntary discontinuance,
a failure to obtain personal jurisdiction over the
defendant, a dismissal of the complaint for neglect
to prosecute the action, or a final judgment upon the
merits, the plaintiff . . . may commence a new action
upon the same transaction or occurrence . . . after
the termination provided that the new action would
have been timely commenced at the time of
commencement of the prior action and that service
upon defendant is effected within such six month
Although the statute explicitly precludes application where a
complaint has been dismissed for neglect to prosecute, Judge
Leisure in the prior action accepted that there is "some support"
for the contention raised by the defendants below that dismissals
without prejudice in such cases are still able to utilize
Section 205.*fn4 Copeland V, 208 F.R.D. at 514. As a
result, the court dismissed the action without prejudice "so that
plaintiff may pursue whatever causes of action remain viable if
he were to refile his action." Id. at 515. In reliance on this
statement by the court, Plaintiff commenced this action pursuant to
C.P.L.R. § 205. (Compl. ¶ 1).
Section 205 explicitly requires that the prior action was
"timely commenced," and courts have adhered to this rule
strictly. See Byrne v. United States, 804 F.Supp. 577, 580
(S.D.N.Y. 1992) (precluding use of Section 205 because "there is
no timely action filed to which a Section 205(a) filing can
apply"); Rayo v. State of New York, 882 F.Supp. 37, 39
(N.D.N.Y. 1995) (finding that since the prior action was not
properly and timely commenced, "plaintiff cannot now rely on
Section 205's six month extension to circumvent the statute of
Defendants assert that Plaintiff's claims were not commenced in
a timely manner, and thus cannot be saved by N.Y.C.P.L.R. §
205(a).*fn5 B. Title VII Claim
Defendants note that the Second Circuit has already ruled that
as a result of the dismissal of Plaintiff's previous case without
prejudice, Plaintiff's Title VII claim would be time-barred in
any future filing by Plaintiff of the same claim. (Defs.' Mem.
Law at 5, fn.4.)
Where a "complaint is timely filed and later dismissed, the
timely filing of the complaint does not `toll' or suspend the
90-day limitations period." Minnette v. Time Warner,
997 F.2d 1023, 1026-27 (2d Cir. 1993). See also Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); Brown v.
Hartshorne Pub. Sch. Dist. # 1, 926 F.2d 959, 961 (10th Cir.
The Second Circuit specifically recognized this in the appeal
brought by Plaintiff in his previous action, and to ensure that
Judge Leisure intended this result, remanded for a clarification
or confirmation. Copeland IV, 25 Fed. Appx. at *2. In its
decision, the District Court confirmed that it realized its
dismissal would result in a dismissal of Plaintiff's Title VII
claim, and that Plaintiff is no longer entitled to bring that
claim, and clarified that "it intended this sanction." Copeland
V, 208 F.R.D. at 513. Because this action was brought far more than ninety days after
receipt of the right-to-sue letter, as required, this Court finds
that Plaintiff's Title VII claim is time-barred and must be
C. Plaintiff's Remaining Claims
Defendants argue that Plaintiff's remaining claims were
originally time-barred by the applicable statutes of limitations,
and therefore cannot be saved by N.Y.C.P.L.R. § 205.*fn6
1. Section 1981 Claim
Claims brought under causes of action created by the 1991
amendments to § 1981 are subject to a "catch-all" four-year
statute of limitations prescribed by 28 U.S.C. § 1658. Jones v.
R.R. Donnelly & Sons Company, 541 U.S. 369 at 379-81 (2004);
Thomas v. New York City Health and Hospitals Corp., No. 02 Civ.
5159, 2004 WL 1962074 (S.D.N.Y. Sept. 2, 2004). In particular,
claims of wrongful termination, hostile work environment, and
failure-to-transfer are deemed to fall under § 1658 because they
were created by the 1991 amendments to § 1981. Id. at 383;
see also Bedden-Hurley v. New York City Bd. of Educ., 2005 WL
53282 at *3 (S.D.N.Y. Jan. 11, 2005); Fernandez v. M&L Milevoi
Management, Inc., 2005 WL 524202, at *7 (E.D.N.Y. Mar. 7, 2005);
Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 N.5 (9th
Cir. 2004); Jackson v. Homechoice, Inc., 368 F.3d 997, 999 (8th
Section 1981 claims accrue on the date the employer notifies
the employee that he is being terminated. See Chardon v.
Fernandez, 454 U.S. 6, 8 (1981); Delaware State College v.
Ricks, 449 U.S. 250, 261 (1980). In Plaintiff's case, that date
was July 20, 1993. (Mosley Decl. at Ex. H.) The original action,
therefore, was not time-barred by the appropriate statute of
limitations when it was initially brought, as it was filed fewer
than four years after the final act of discrimination occurred.
However, although N.Y.C.P.L.R. § 205 can be used to toll a
statute of limitations in cases involving state limitations
periods, a state savings provision cannot toll a limitations
period granted expressly by Congress. See Maurizio v.
Goldsmith, 84 F.Supp. 2d 455, 462-63 (S.D.N.Y.) aff'd by
230 F.3d 518 (2d Cir. 2000) (refusing to allow C.P.L.R. § 205 to toll
the federal Copyright Act's statute of limitations); American
Society of Composers, Authors, and Publishers v. Pataki,
930 F.Supp. 873, 879 (S.D.N.Y. 2000) (claiming that "under the
Supremacy Clause, the state has no power to resist Congress's
determination of fairness as embodied in the federal statute of
limitations"); East 7th Street Realty Corp. v. Damm, 196 Misc. 920,
96 N.Y.S.2d 118, 119 (N.Y.Sup. App. Term. 1949) (explaining that
the period of limitation in the federal Housing and Rent Act is
"a matter of substance limiting the right as well as the remedy"
and that Section 23 of the Civil Practice Act may not extend or
modify that period); Central Asphalt v. Industrial Bank of
Utica, 3 Misc.2d 971, 153 N.Y.S.2d 892 (N.Y.Sup.Ct. 1956).
Accordingly, this Court finds that the New York State savings
statute, N.Y.C.P.L.R. § 205, cannot be allowed to extend a claim
beyond the period expressly established by Congress. Plaintiff
left his employment at Lincoln Academy in 1993. Because
Plaintiff's § 1981 claims accrued more than four years before the
filing of the complaint in this matter, Plaintiff's § 1981 claim
2. Section 1983 Claim
Claims brought pursuant to 42 U.S.C. § 1983 are governed by the
three-year statute of limitations imposed under N.Y.C.P.L.R. §
214(2). See Eagleston v. Guido, 41 F.3d 865, 871 (2d. Cir.
1995) ("For § 1983 actions arising in New York, the statute of
limitations is three years."); Pinaud v. County of Suffolk,
52 F.3d 1139, 1156 (2d. Cir. 1995) (same). While applicable state
law supplies the statute of limitations for § 1983 claims,
federal law determines when a federal claim accrues. See
Eagleston, 41 F.3d at 871. The Second Circuit has determined that a § 1983 claim accrues "when the plaintiff `knows or has
reason to know' of the harm." Id. (quoting Cullen v.
Margiotta, 811 F.2d 698, 725 (2d Cir. 1987), cert denied,
483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987)).
In the instant case, Plaintiff was made aware of the harm when
he received the termination letter, dated July 20, 1993.*fn7 (Mosley Decl. at Ex. H.) Because the claim accrued more than
three years before the first complaint was filed on August 20,
1996, Plaintiff's § 1983 claim is DISMISSED as time-barred.
3. NYSHRL § 296 Claim
The statute of limitations period for claims arising under New
York State Human Rights Law is also three years. N.Y.C.P.L.R. §
214(2); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714
(2d Cir. 1996); Koerner v. State of New York, 62 N.Y.2d 442,
447, 467 N.E.2d 232, 478 N.Y.S.2d 584 (N.Y. 1984). "In the
employment discrimination context, a claim accrues on the date
that an adverse employment determination is made and communicated
to the plaintiff." Radin v. Albert Einstein College of Medicine
of Yeshiva University, No. 04 Civ. 704, 2005 WL 1214281, at *16
(S.D.N.Y. May 20, 2005).
The adverse employment determination in Plaintiff's context is
on the date that he was either forced to resign, June 28, 1993,
or the date on which he states that he was terminated, July 20,
1993. Based on either date, Plaintiff's SHRL claim is also
time-barred and must be dismissed. III. CONCLUSION
For the foregoing reasons, Plaintiff's Complaint is DISMISSED
The Clerk of the Court is DIRECTED to close this case and
remove it from the docket.
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