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United States District Court, S.D. New York

November 11, 2005.


The opinion of the court was delivered by: WILLIAM PAULEY III, District Judge


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. 1995).*fn3

  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 (S.D.N.Y. 1998).

  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. 12.

  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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