United States District Court, E.D. New York
December 12, 2005.
DANIEL A. SCHIAPPA, SR., Plaintiff,
BROOKHAVEN SCIENCE ASSOCIATES, LLC, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This is a case brought by Daniel A. Schiappa, Sr. ("Schiappa"
or the "Plaintiff") against his former employer the Brookhaven
Science Associates, LLC ("BSA" or the "Defendant") alleging employment discrimination
based on age and disability. Schiappa contends that this
discrimination resulted in a hostile work environment, wrongful
termination, and refusal to rehire. Presently before the Court is
a motion pursuant to Federal Rule Civil Procedure 12(c) for
partial judgment on the pleadings.
According to the amended complaint, filed on March 14, 2005,
Schiappa was employed by BSA as technician in the Technical
Support Group of the Magnet Division at Brookhaven National
Laboratory ("BNL"). The BNL is a research facility that has been
operated by BSA since March 1, 1998, pursuant to a contract
between the BSA and the United States Department of Energy
("DOE"). The amended complaint alleges that BSA is a corporation
formed by the State University of New York at Stony Brook and
"Battelle" to operate the laboratory. However, the answer denies
this allegation and states that BSA is a private, not-for-profit,
limited liability company organized under the laws of the state
Schiappa was born on June 6, 1947, and commenced employment at
the BNL in 1981 and continued working there for approximately
twenty-two years. According to the amended complaint, beginning
in 1999, Schiappa and other "disabled and older employees" were
subjected to both harsher and unsafe working conditions as
compared to younger and healthier workers. Such harsh treatment
included segregating older and injured employees and placing them in jobs
which were substantially more strenuous, unpleasant, and
dangerous. As a result, it is alleged that the older and injured
employees were subjected to hazardous and debilitating conditions
such as extreme heat and cold, danger of electrocution, and
exposure to radioactivity, without being provided proper
equipment, protection or monitoring.
The Plaintiff further alleges that he, along with other
employees, complained about these dangerous conditions, but that
they were ignored and retaliated against. As a result, the
Plaintiff states that many workers were injured, forced to quit,
or fired. The Plaintiff was allegedly injured twice due to the
unsafe working conditions. In December 2001 and May 2003,
Schiappa injured his back on the job and sustained injuries
including herniation, stenosis, hypertrophy, and a bulging disc,
that resulted in substantial pain and loss of movement and
According to the amended complaint, not only were there unsafe
working conditions for older and injured employees, but the
safety issues extended beyond the boundaries of the BNL. In one
instance, the Plaintiff alleges that the Defendant knowingly
permitted radioactive materials to be unsafely shipped by truck
across the country, and, as a result, radioactive materials
spilled out of the truck over wide public areas.
In January 2003 the Plaintiff received a poor performance
evaluation, which he informally protested. On July 11, 2003, the
plaintiff received a notice that he was being terminated. At the time of the termination notice, the
Plaintiff claims that he had the most seniority and was one of
the oldest employees in his group. Shortly after receiving the
notice, the Plaintiff applied for and was denied a different
position. On July 31, 2003, he was terminated from his employment
at BSA. In October 2003, Schiappa applied for and was denied
another position at BSA.
In this lawsuit Schiappa contends that he was unlawfully
subjected to a hostile work environment, terminated from his
employment, and not rehired based on retaliation, age, and
disability. Schiappa asserts causes of action under the Age
Discrimination in Employment Act, the Rehabilitation Act, and the
New York Human Rights Law. The Plaintiff also states that his
case is "pursuant to 42 U.S.C. § 1983."
On May 4, 2005, the Defendant filed an answer and a motion for
partial judgment on the pleadings. Although the amended complaint
fails to allege that a charge of discrimination was filed with an
administrative agency, attached to the Defendant's answer is a
copy of Schiappa's March 25, 2004, charge of discrimination that
he filed with the Equal Employment Opportunity Commission
("EEOC"). In the charge, he complains that he was discriminated
on the basis of age when he was terminated in July 2003 as part
of the BNL's reduction in force.
In its motion for judgment on the pleadings, BSA argues: (1)
the hostile work environment claims under the Age Discrimination
in Employment Act should be dismissed as time-barred because such
claims arose more than 300 days before he filed a charge with the EEOC; (2) the retaliation claim should be
dismissed because he failed to include such claim in the EEOC
charge; (3) the Section 1983 claims should be dismissed because
BSA is not a state actor and the claim is not adequately plead in
the complaint; and (4) the New York State Human Rights Law claims
should be dismissed because they are barred by the federal
enclave doctrine and the Constitution.
A. THE RULE 12(c) STANDARD
The standard of review on a motion for judgment on the
pleadings under Rule 12(c) is whether "the moving party is
entitled to judgment as a matter of law." Burns Int'l Sec.
Serv., Inc. v. Int'l Union, United Plant Guard Workers of Am.,
47 F.3d 14, 16 (2d Cir. 1995). Under Rule 12(c), all well-pleaded
facts and allegations in the non-moving party's pleading are
assumed to be true and all contravening assertions in the
movant's pleadings are taken to be false.
This standard is the same as that applicable to a motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6).
Nat'l Ass'n of Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 904, 909
n. 2 (2d Cir. 1988). The function of the Court is not to weigh
the evidence that may be presented at trial but instead the Court
must determine if the claims are legally sufficient. Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985); see also King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Therefore, a court
must evaluate whether the allegations in the complaint can sustain a
cause of action under applicable law, and should grant the motion
to dismiss only if the plaintiffs can prove no set of facts in
support of their claims that would entitle them to relief. See
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S. Ct. 992,
998, 152 L. Ed. 2d 1 (2002); King v. Simpson, 189 F.3d 284, 286
(2d Cir. 1999). The issue is not whether the plaintiff will
ultimately prevail but whether the plaintiff is entitled to offer
evidence to support the claims. Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 378 (2d Cir. 1995).
B. AS TO THE CLAIMS OF AGE DISCRIMINATION
In order to state a claim under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. § 621-34 (2005), a claimant
must plead that: 1) he was within the protected age group; 2) he
was qualified for the position; 3) he was subject to an adverse
employment action; and 4) the adverse action occurred under
"circumstances giving rise to an inference of discrimination."
Terry v. Ashcroft, 336 F.3d 128, 137-138 (2d Cir. 2003).
Schiappa's complaint claims two adverse actions. A hostile work
environment "beginning in 1999" and a wrongful termination, as of
July 11, 2003.
BSA contends that Schiappa's hostile work environment claim is
time-barred for failing to file a charge of discrimination with
an administrative agency. The Court agrees. Under the ADEA, an
aggrieved person must file a claim with the EEOC within 300 days of the discriminatory action. See
29 U.S.C. §§ 626(d)(1), (d)(2), 633(b). If the conduct complained of in the
complaint falls outside of the 300-day period, the person can
recover for that conduct only if it is demonstrated that there
was a continuous policy and practice of discrimination, and that
one act in furtherance of the policy and practice fell within the
300-day period. Bonner v. Guccione, 178 F.3d 581, 584 (2d Cir.
1999). Claims for a hostile work environment, which may involve a
series of acts not actionable on their own, may properly include
acts outside the 300-day period for purposes of establishing a
hostile environment "[p]rovided that an act contributing to the
claim occurs within the filing period." National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S. Ct. 2061,
153 L. Ed.2d 106 (2002).
Schiappa filed his EEOC charge on March 25, 2004. As such, any
alleged conduct that took place 300 days before that day, which
is May 29, 2003, is time-barred unless he can demonstrate that
there was a continuous policy and practice of discrimination, and
that one act in furtherance of the policy and practice fell
within the 300-day period. Here, all of the discrete acts listed
in the complaint with regard to hostile work environment fall
outside the 300-day period. Indeed, there are only two specific
incidents both involving his alleged on the job injury that
support Schiappa's claim of a hostile work environment listed in
the amended complaint. The first occurred in December 2001 and
the second occurred on May 7, 2003. Both events fall outside the
300-day period. The other assertions listed in the amended complaint amount to nothing more than vague and conclusory
allegations of an alleged policy or practice, such as Schiappa's
claim that disabled and older employees "were subjected to both
harsher and unsafe working conditions."
Therefore, due to the lack of any specific allegation of
conduct in the amended complaint falling within the 300 day
limit, Schiappa cannot sustain a claim of hostile work
environment as pleaded in the complaint. Accordingly, the
Defendant's motion to dismiss Schiappa's claim of hostile work
environment is granted.
C. AS TO THE CLAIM OF RETALIATION
The Defendant argues that the Plaintiff's cause of action for
retaliation under the ADEA should be dismissed because Schiappa
failed to include it in his EEOC charge. "Exhaustion of
administrative remedies through the EEOC is `an essential
element' of the Title VII and ADEA statutory schemes and, as
such, a precondition to bringing such claims in federal court."
Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683,
686 (2d Cir. 2001) (citing Francis v. City of New York,
235 F.3d 763, 768 (2d Cir. 2000)). However, the Second Circuit has
recognized that "claims that were not asserted before the EEOC
may be pursued in a subsequent federal court action if they are
`reasonably related' to those that were filed with the agency."
Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 614
(2d Cir. 1999). "Reasonably related" claims are those which fall
within the scope of the EEOC investigation and "would be
reasonably expected to grow out of the charge of discrimination. Butts v. City of New York Dep't of Hous. Pres. &
Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993). Claims alleging
retaliation for filing a discrimination charge are "reasonably
related" to the underlying discrimination charge if they are
based upon conduct subsequent to the EEOC charge. Legnani,
274 F.3d at 686; Shah, 168 F.3d at 614 (quoting Butts,
990 F.2d at 1402).
However, in the present case, Schiappa filed his charge of
discrimination with the EEOC after he was terminated. As a
result, his claim of retaliation cannot be based upon or
reasonably related to his filing of a charge of discrimination.
In order for a retaliation claim to "relate back to a claim
included in an EEOC charge, the alleged retaliation must occur
after the filing of the charge." Miles v. Florsheim Shoe Store
Co.-Northeast, No. 95-4280, 1997 WL 621258, at * 1, n. 1
(S.D.N.Y. Oct. 7, 1997). Because the Plaintiff's retaliation
claim was neither included in the EEOC charge nor relates back to
the claims that were included, this Court does not have
jurisdiction over it. Accordingly, the Defendant's motion to
dismiss the retaliation claim is granted.
D. AS TO THE SECTION 1983 CLAIMS
The amended complaint states in the "Nature of Claim" section
that Schiappa's claims are "pursuant to 42 U.S.C. § 1983."
However, none of the four causes of action at the conclusion of
the amended complaint mention Section 1983 and the amended
complaint does not allege that BSA is a municipal or state entity
acting under color of state law as required by 42 U.S.C. § 1983. Washington v. James,
782 F.2d 1134, 1138 (2d Cir. 1986); Shaw v. Lopez, No. 04 Civ.
0787, 2004 WL 1396698, at * 2 (D.Conn. June 17, 2004). The only
tangential reference to any state action in the amended complaint
is Schiappa's allegation that BSA is a corporation formed by the
State University of New York at Stony Brook and "Battelle" to
operate the laboratory. Under Rule 8 of the Fed.R.Civ.P., this
bare allegation alone is insufficient to state a Section 1983
claim. Accordingly, to the extent that the amended complaint
alleged a cause of action under Section 1983, the motion to
dismiss this cause of action is granted.
E. AS TO THE STATE LAW CAUSES OF ACTION
Schiappa asserts two state law causes of action against BSA
under the New York Human Rights Law ("NYHRL"). In response, BSA
contends that the BNL, which it operates, is located in a federal
enclave and that its operations at the BNL are not subject to
state laws enacted after the land was deeded to the federal
government. In support, BSA has attached as "Exhibit A" to its
answer a Deed dated July 17, 1933 ("Deed") transferring
jurisdiction over the land where the BNL is located from New York
State to the federal government. The Plaintiff does not dispute
the existence or validity of the Deed, or that following the
transfer indicated on the Deed the land upon which the BNL is
located became a federal enclave. Insofar as the Plaintiff does
not dispute the Deed that was attached to the Defendant's
pleading, the Court may properly considered it on a Rule 12(c) motion. See Rule 10(c);
Woodcock v. Montefiore Medical Center, 48 F. Supp. 2d 231, 233
A federal enclave is "a portion of land over which the United
States government exercises exclusive federal jurisdiction."
Kelly v. Lockheed Martin Servs. Group, 25 F. Supp. 2d 1, 2
(D.P.R. 1998). When the United States acquires such a portion of
land from a State, the laws of that State will remain in effect
until abrogated by a federal law. Id. at 5. Thereafter, "a
State may not legislate with respect to a federal enclave unless
it reserved the right to do so when it gave its consent to the
purchase by the United States." See Paul v. United States,
371 U.S. 245, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963).
Generally, under the federal enclave doctrine a state loses its
police and legislative powers over the land acquired by the
federal government if: "(1) the state consented to the land's
acquisition or later ceded certain powers, (2) the federal
government has assumed the ceded authority, and (3) the land's
federal use is consistent with the enclave clause." Torrens v.
Lockheed Martin Services Group, Inc., 396 F.3d 468, 470 (1st
Cir. 2005). Here, rather than disputing whether the BNL is in
fact a federal enclave, the Plaintiff disputes the nature and
extent of the rights New York State reserved when it deeded the
BSA land to the United States. The question of what jurisdiction New York State reserved can
be found by examining the Deed and the relevant provisions of New
York law. The Deed expressly states that New York State retained
a concurrent jurisdiction with the United States on
and over the property and premises as conveyed, so
far as that all civil and criminal process, which may
incur under the laws or authority of the state of New
York may be executed thereon in the same way and
manner as if such jurisdiction had not been ceded.
Def.'s Answer Ex. A.
The authority of the State of New York to cede jurisdiction
over particular lands to the federal government is found in
Articles 3 and 4 of the New York State Administrative Procedure
Act ("State Law"). State Law § 52 is entitled "Governor may
execute deed or release" and confers authority upon the Governor
of the state of New York to cede jurisdiction over lands within
New York's boundaries to the United States. N.Y. State Law § 53
(McKinney 2003). State Law § 53 is entitled "Concurrent
Jurisdiction as to Service of Process." Section 53 states that
jurisdiction ceded under Section 52
shall be upon the express condition that the state of
New York shall retain a concurrent jurisdiction with
the United States on and over the property and
premises so conveyed, so far as that all civil and
criminal process, which may issue under the laws or
authority of the state of New York, may be executed
thereon in the same way and manner as if such
jurisdiction had not been ceded.
N.Y. State Law § 53. State Law § 53 was adopted by the New York State Legislature in
1909. This statute was in effect on July 17, 1933, remains on the
books today, and reads now as it did when it was adopted nearly
one hundred years ago. N.Y. State Law § 53. It is the Court's
opinion that the language quoted above and appearing in a section
of the New York laws entitled "Concurrent Jurisdiction as to
Service of Process," id. (emphasis added), was intended to do
that which its title suggests it was enacted to do limit the
scope of a transfer of jurisdiction from New York to the United
States only with respect to the service of process.
The reservation of concurrent jurisdiction only for "service of
process" permits New York to exercise civil and criminal
jurisdiction over persons within the federal enclave, but in no
way confers authority for the state to exercise legislative or
police powers within the federal enclave. This conclusion is
consistent with Supreme Court precedent. In Ft. Leavenworth R.
Co. v. Lowe, 114 U.S. 525, 533, 5 S. Ct. 995, 999, 29 L. Ed. 264
(1885), the Supreme Court stated that "[t]he reservation which
has usually accompanied the consent of the states that civil and
criminal process of the state courts may be served in the places
purchased, is not considered as interfering in any respect with
the supremacy of the United States over them, but is admitted to
prevent them from becoming an asylum for fugitives from justice."
Id.; accord James v. Dravo Contracting Co., 302 U.S. 134,
146, 58 S. Ct. 208, 82 L. Ed. 155 (1937) (noting that such
reservations are "not incompatible with a cession of exclusive jurisdiction to the United States" and that reservations of this
sort were frequently found in grants made by the states to the
United States "in order to avoid the granted places being made a
sanctuary for fugitives from justice"); see also Celli v.
Shoell, 995 F. Supp. 1337, 1341-42 (D. Utah 1998) (refusing to
interpret Utah's retention of jurisdiction as allowing anything
more than the right to have its process served on the federal
enclave); People v. Dowdell, 109 Misc. 2d 605, 606,
440 N.Y.S. 2d 528, 529 (N.Y. County Ct. 1981) ("reservation [in N.Y. State
Law § 53] relating to service of process . . . is to insure the
continued integrity of the State system to administer its laws
and to gain jurisdiction over appropriate individuals properly
subject to State actions or proceedings"); Beagle v. Motor
Vehicle Accident Indemnification Corp., 44 Misc. 2d 636,
254 N.Y.S.2d 763, 765 (N.Y.Sup.Ct. 1964), rev'd on other grounds,
26 A.D.2d 313, 274 N.Y.S. 2d 60 (4th Dep't 1966) (reservation in
N.Y. State Law § 53 relates to service of process); 87 N.Y. Jur.
2d Public Lands § 5 n. 18 (same).
Because New York State retained jurisdiction only with respect
to service of process, the only operative state laws within the
BSA federal enclave are those that were in effect at the time the
transfer was made in 1933. See Vasina v. Grumman Corp.,
644 F.2d 112, 117 (2d Cir. 1981); see also Paul, 371 U.S. at 265,
83 S. Ct. 426; Stewart & Company v. Sadrakula, 309 U.S. 94, 100
& n. 9, 60 S. Ct. 431, 434, n. 9, 84 L.Ed. 596 (1940) ("Since
only the law in effect at the time of the transfer of jurisdiction continues in force, future statutes of the state are
not a part of the body of laws in the ceded area."); Celli,
995 F. Supp. at 1341-42 ("subsequently enacted state laws have no
application"); Stokes v. Adair, 265 F. 2d 662, 665 (4th Cir.
1959) ("It is . . . clear that only the state laws in effect at
the time of the transfer of jurisdiction continue in effect and
that subsequent statutes of the State are not part of the laws of
the ceded area unless Congress takes action to keep them
The NYSHRL was enacted in 1945, twelve years after the BSA land
became a federal enclave. Therefore, the NYSHRL does not apply on
this federal enclave and is not enforceable as to BSA operations
at the BNL. See Hutchinson v. Andrulis Corp., No.
5:03CV1-MCR/WCS, 2004 WL 691790 (N.D. Fla. Mar. 19, 2004)
(adopting magistrate judge's report and recommendation that
Florida's whistleblower statute was inapplicable to an individual
employed on a federal enclave); Miller v. Wachenhut Servs.,
808 F. Supp. 697, 700 (W.D. Mo. 1992) (dismissing the plaintiff's
claims under Missouri anti-discrimination statutes because the
plaintiff was employed on a federal enclave).
Accordingly, the Court grants the Defendant's motion to dismiss
the Plaintiff's NYSHRL claims against BSA. As a result, the sole
claim remaining in the complaint is the one for alleged unlawful
termination under the ADEA. III. CONCLUSION
For all the above reasons, the Defendant's motion for partial
judgment on the pleadings is granted as follows: it is hereby:
ORDERED, that the Defendant's motion to dismiss the hostile
work environment claim is GRANTED; and it is further
ORDERED, that the Defendant's motion to dismiss the
retaliation claims in the first cause of action is GRANTED; and
it is further
ORDERED, that the Defendant's motion to dismiss the Section
1983 cause of action is GRANTED; and it is further
ORDERED, that the Defendant's motion to dismiss the New York
State law causes of action in the second and fourth causes of
action is GRANTED; and it is further
ORDERED, that the motion to stay discovery pending the
resolution of this motion is DENIED as moot; and it is further
ORDERED, that the parties are directed to contact United
States Magistrate Judge William D. Wall forthwith to schedule the
completion of discovery. SO ORDERED.
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