United States District Court, S.D. New York
November 11, 2005.
LAWRENCE C. JONES, Plaintiff,
BELLEVUE HOSPITAL CENTER, ANTHONY PADULA, QUENTIN CARRIGY, WAVNIE WINTZ, BRIAN D. ELLIS, JULIE BLACK, SHARON RODRIGUEZ, BRENDA WEISS, BRENDA R. CHAPMAN, and MARY THOMPSON, Defendants.
The opinion of the court was delivered by: WILLIAM PAULEY III, District Judge
MEMORANDUM AND ORDER
Plaintiff pro se Lawrence C. Jones ("Jones") brings this
action against his former employer, Bellevue Hospital Center
("Bellevue"), and nine employees thereof (collectively,
"Defendants"). Pursuing various legal theories, Jones challenges
aspects of his employment and the circumstances of his
termination. Bellevue moves to dismiss the Amended
Complaint.*fn1 For the reasons set forth below, Bellevue's
motion to dismiss is granted.
The instant action is one of many suits Jones has filed against
Bellevue and its employees. Jones, an African American male, was
hired by Bellevue as a hospital police officer on November 12,
1985. (Amended Complaint, dated Dec. 2, 2004 ("Am. Compl.") at
4.) Jones alleges that throughout his employment, Defendants discriminated
against him, failed to promote him and fostered a hostile work
environment because of his race, color and gender. (Am. Compl. at
1-4; Plaintiff's Opposition to Bellevue's Motion to Dismiss,
dated Apr. 1, 2005 ("Pl. Mem.") at 5-10.)*fn2
Jones complained to Bellevue officers and directors about the
discrimination he perceived and filed a union grievance. (Pl.
Mem. at 7.) These matters were resolved in Bellevue's favor. (Pl.
Mem. at 7.) On November 4, 1998, Jones filed a charge of
discrimination with the New York State Division of Human Rights
("NYSDHR"). (Declaration of A. Ali Ayazi, dated Mar. 4, 2005
("Ayazi Decl."), Ex. A; Pl. Mem. at 7.) The Equal Employment
Opportunity Commission ("EEOC") acknowledged the filing of the
NYSDHR charge on January 26, 1999 and informed Jones that he
could request an EEOC notice of his right to sue if he chose to
forego the NYSDHR investigation and proceed with a federal
action. (Ayazi Decl. Ex. A.) Jones made such a request. On March
5, 1999, the EEOC responded that it would act on Jones' request
within four weeks. (Ayazi Decl. Ex. A.) There is no indication
that Jones received any notice from the EEOC thereafter; rather,
Jones characterizes the March 5, 1999 letter as his notice of
right to sue. (Pl. Mem. at 26.)
On April 5, 1999, Jones filed a Title VII employment
discrimination action against Bellevue and defendant Anthony
Padula premised on the allegations in his NYSDHR charge. (Ayazi
Decl. Ex. A: Complaint in Jones v. Padula, No. 99 Civ. 4192
(SHS) (THK) (S.D.N.Y.); Pl. Mem. at 9.) That case settled, with Jones
executing a General Release of all then-existing claims against
Bellevue and its employees. (Pl. Mem. at 32 & Ex. D: General
Release, dated Feb. 9, 2001.) As stipulated by the parties, Judge
Stein dismissed Jones' claims with prejudice. (Pl. Mem. Ex. D: So
Ordered Stipulation of Discontinuance, dated Feb. 22, 2001.)
On May 17, 2001, Plaintiff requested leave to care for elderly
and ill members of his family. (Am. Compl. at 3; Pl. Mem. at
9-10, 16-18 & Ex. A: Request for Leave Under the Family and
Medical Leave Act.) Bellevue denied this request. (Am. Compl. at
3.) Five days later, on May 22, 2001, Bellevue terminated Jones'
employment. (Am. Compl. at 4; Pl. Mem. at 4 & Ex. A: Memorandum
from Brian D. Ellis to Lawrence Jones, dated May 22, 2001.)
In September 2001, Jones initiated an Article 78 proceeding in
New York State court, alleging that his termination was
discriminatory and retaliatory. (Ayazi Decl. Ex. D: Verified
Petition in Jones v. New York City Health & Hosps. Corp., Index
No. 117553, dated Sept. 4, 2001 (N.Y.Sup.Ct., N.Y. County); Pl.
Mem. at 33.) The trial court dismissed Jones' claims and the
Appellate Division affirmed. Jones v. New York City Health &
Hosps. Corp., 5 A.D.3d 338, 773 N.Y.S.2d 552 (1st Dep't Mar. 30,
2004); Jones, Index No. 117553, slip op. (N.Y.Sup.Ct. June
13, 2002) (submitted by Bellevue as Ayazi Decl. Ex. E).
Jones commenced the instant action on July 16, 2004. Liberally
read in conjunction with his opposition papers, Jones' Amended
Complaint advances a host of claims against Defendants. Jones
claims that Defendants created a hostile work environment,
discriminated against him on the basis of his race, color and
gender and retaliated against him throughout his employment and
when they terminated him, in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,
and the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq. Jones also
asserts claims under the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. § 2601 et seq., and New York's
"whistleblower" statutes, N.Y. Civ. Serv. Law § 75-b, N.Y. Labor
Law § 740. Finally, in his opposition papers, Jones claims that
Defendants violated his First Amendment right to free speech,
thus attempting to state a claim under 42 U.S.C. § 1983. (Pl.
Mem. at 40.)
In December 2004, Jones filed with the EEOC a charge of
discrimination that is identical to his Amended Complaint. (Ayazi
Decl. Ex. G.) Jones has not notified this Court of any action
taken by the EEOC in response to that charge.
Bellevue moves to dismiss this action pursuant to Federal Rules
of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5) and 12(b)(6).
Because this Court dismisses Jones' Amended Complaint for failure
to state a claim under Rule 12(b)(6), it addresses only that
portion of Bellevue's motion.
I. Motion to Dismiss Standard
On a motion to dismiss pursuant to Rule 12(b)(6), a court must
accept the material facts alleged in the complaint as true and
construe all resonable inferences in a plaintiff's favor.
Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 89-90 (2d Cir.
2004). A court should not dismiss a complaint for failure to
state a claim "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." Conley v. Gibson, 355 U.S. 41, 45-46
(1957); accord Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir.
2005). Dismissal is proper when the plaintiff fails to plead the
basic elements of a cause of action. See In re Scholastic Corp. Secs. Litig., 252 F.3d 63, 69 (2d Cir.
2001). The issue on a motion to dismiss is not "whether a
plaintiff will ultimately 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.
This Court is mindful that Jones is a pro se litigant who
lacks legal training. Because of his pro se status, this Court
reads Jones' Amended Complaint and opposition brief liberally,
affording him the deference to which he is entitled and
interpreting his submissions "to raise the strongest arguments
that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994); see Salahuddin v. Coughlin, 999 F. Supp. 526, 535
II. Bellevue's Motion
A. Title VII Claims
Prior to commencing a Title VII action in federal court, a
claimant must exhaust his administrative remedies by timely
filing a charge with the EEOC or corresponding state agency and
receiving a notice of right to sue from the EEOC.
42 U.S.C. § 2000e-5(f); Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003);
Terry v. Ashcroft, 336 F.3d 128, 150-51 (2d Cir. 2003). Title
VII's administrative exhaustion requirement "is not a
jurisdictional one . . . [but], `like a statute of limitations,
is subject to waiver, estoppel, and equitable tolling.'" Terry,
336 F.3d at 150 (quoting Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982)). "Courts may waive or toll this
statutory requirement if the plaintiff shows or alleges that he
made an effort to procure the right to sue letter or that he raised the failure to issue a
right to sue letter with the EEOC prior to filing a federal court
action." Gonzalez v. City of New York, 354 F. Supp. 2d 327, 332
n. 12 (S.D.N.Y. 2005) (internal quotations and alterations
omitted); see Nurse v. City of New York, 739 F. Supp. 811,
811 (S.D.N.Y. 1990).
Jones filed a discrimination charge with the NYSDHR in November
1998. (Ayazi Decl. Ex. A.) Jones alleges that he received an EEOC
right-to-sue letter dated March 5, 1999. (Pl. Mem. at 26.) That
letter, however, was merely a response to Jones' request and
indicates that such a notice would issue. (Ayazi Decl. Ex. A.)
However, even if not itself a right to sue notice, the March 5,
1999 EEOC letter indicates that Jones "made an effort to procure
the right to sue letter." Gonzalez, 354 F. Supp. 2d at 332 n.
Regardless, Jones' initial Title VII action was premised on the
allegations in his NYSDHR charge. Jones settled those claims and
agreed to have them dismissed with prejudice. (Pl. Mem. Ex. D.)
Jones cannot revive the NYSDHR charge or the claims from his 1999
action here. See Marvel Characters, Inc. v. Simon,
310 F.3d 280, 286-87 (2d Cir. 2002) ("Under the doctrine of res judicata,
or claim preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating claims
that were or could have been raised in that action. . . . [A]
dismissal, with prejudice, arising out of a settlement agreement
operates as a final judgment for res judicata purposes."
(internal citation omitted)). Accordingly, Jones' Title VII
claims are dismissed to the extent they are based on allegations
in his NYSDHR charge.
Jones' December 2004 EEOC charge reiterates the allegations in
his November 1998 NYSDHR charge but also alleges events after the
filing of that charge, the last such event being his May 2001
termination. (Ayazi Decl. Ex. G.) However, Jones does not allege
that the EEOC issued a notice of right to sue for the allegations
in that charge. Moreover, a plaintiff may not assert a Title VII claim based on events more than 300 days
prior to the filing of this EEOC charge. 42 U.S.C. § 2000e-5(e).
The most recent factual allegation in the Amended Complaint is
Jones' May 22, 2001 termination, which occurred more than 300
days prior to his December 2004 EEOC charge. Accordingly, even if
the EEOC issues Jones a right-to-sue letter, his Title VII claims
in this action are barred.*fn4 See Soso Liang Lo v. Pan
American World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986)
(holding that where a Title VII plaintiff receives two
right-to-sue notices based on the same factual allegations, the
first issued notice controls for timeliness determinations);
cf. Criales v. American Airlines, Inc., 105 F.3d 93, 95 (2d
Cir. 1997) ("Had Criales waited to file his suit until receipt of
the right-to-sue notice on the timely charge, there would have
been no defect. . . . His problem was that he filed the initial
complaint without waiting for the issuance of the right-to-sue
notice based on his timely charge.").
As such, Jones' Title VII claims are dismissed.
B. Remaining Claims
In light of Jones' previous litigations involving the very same
allegations in this action, his remaining claims are barred in
part by collateral estoppel and res judicata. Moreover, Plaintiff
released Defendants from liability for events that occurred prior
to February 2001. (Pl. Mem. at 32 & Ex. D.) However, this Court
need not winnow the Amended Complaint to claims not previously
asserted or released because, as discussed below, all of Jones'
non-Title VII claims are barred by the applicable statutes of limitations.
Jones' claims under the FMLA, the HRL and Section 1983 are all
governed by a three-year statute of limitations. See
29 U.S.C. § 2617(c)(2) (FMLA); N.Y.C.P.L.R. § 214(2) (applicable to the
HRL); Forsyth v. Fed'n Employment & Guidance Serv.,
409 F.3d 565, 572 (2d Cir. 2005) ("Section 296 of the New York State Human
Rights Law . . . allow[s] complainants three years from the date
of the injury allegedly caused by discrimination to file suit.");
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.
2004) ("The statute of limitations applicable to claims brought
under . . . [Section] 1983 in New York is three years."); Porter
v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004)
(FMLA). Jones' claim that Defendants violated New York's
whistleblower statutes is governed by a one-year statute of
limitations. N.Y. Civ. Serv. Law § 75-b(3)(c); N.Y. Labor Law §
740(4)(a); Dobson v. Loos, 277 A.D.2d 1013, 1013,
716 N.Y.S.2d 220, 221 (4th Dep't 2000). Jones commenced this action on July
16, 2004. Because Jones does not allege any fact after his May
22, 2001 termination, all of Jones' non-Title VII claims are
time-barred by their respective statutes of limitations.
Accordingly, Jones' FMLA, HRL, whistleblower and Section 1983
claims are dismissed. CONCLUSION
For the foregoing reasons, Bellevue's motion to dismiss is
granted and Jones' claims are dismissed with prejudice. The Clerk
of Court is directed to mark this case closed.
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