The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Darrell Ramos is an employee of defendant New York City Department of Correction ("DOC"). In this case, Ramos contends that DOC violated his rights under Title VII by discriminating against him because of his race by (1) firing him, (2) refusing to give him back-pay after he was reinstated, and (3) refusing to permit him to be firearm qualified. Ramos also contends DOC violated 42 U.S.C. § 1983 by refusing to permit him to be firearm qualified.
DOC moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief may be granted. By Order dated March 7, 2006, notice was given to both parties that the Court was converting the motion to one for summary judgment. See Fed. R. Civ. P. 56. For the reasons that follow, defendant's motion is granted and the complaint is dismissed. Plaintiff is given leave to amend as to one claim of discrimination.
On May 31, 2002, Ramos was fired from his position as a correction officer at Rikers Island because his employer learned that he had two prior arrests. (Compl. p. 1, ¶ 5.) Ramos's first arrest was on August 19, 2001, based on a complaint by a woman alleging Ramos had assaulted another man. (Id.¶ 3.) Ramos contends that he never met the man he was accused of assaulting, and indeed, the charges in that case were dropped the following day. (Id.) The second arrest, on March 24, 2002, was based on an assault complaint by the woman who had filed the complaint against him in his prior arrest. (Id. ¶ 4.) That case was also dismissed. (Id.)
Plaintiff successfully grieved his dismissal from DOC to his union, and was reinstated by DOC on September 3, 2002. (Id. ¶ 6.) After his reinstatement, he repeatedly asked for back pay and requested that his firearm qualification be restored, but he never received back pay, and his firearm qualification was never restored. (Id.) On December 1, 2003, plaintiff wrote a memorandum to DOC indicating that on November 25, 2003, he was told that he was categorized under "No Firearm." (Dec. 1, 2003, Mem. to Valerie Oliver, attached to Pl.'s Opp.) As a final effort, Ramos spoke to his union vice president, but was rebuffed and told "be grateful you have a job." (Compl. ¶ 7.) After realizing that his union was not going to support him, he contacted his commanding officer at Rikers Island and was informed that his authorization to be firearm qualified had to be submitted to the firearm review board. (Id.)
According to the record, plaintiff was informed by the Assistant Commissioner of Personnel in a letter dated August 23, 2004, that the period he had been out of work was a leave of absence without pay. (Aug. 23, 2004, DOC Mem., attached to Pl.'s Opp.)
On or about November 12, 2004,*fn2 Ramos filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), charging DOC with discrimination based on the events alleged in this complaint and described above. (See Bardavid Decl. Ex. A.) On December 16, 2004, the EEOC dismissed Ramos's complaint because it was not timely filed. (See Dismissal and Notice of Rights, attached to Compl.)
Plaintiff filed the complaint in this case on January 14, 2005, alleging DOC violated his rights and discriminated against him in violation of Title VII and 42 U.S.C. § 1983. Plaintiff's complaint alleges three separate acts of racial discrimination in violation of Title VII: (1) that DOC discriminated against him by not permitting him to be firearm qualified; (2) that DOC discriminated against him by firing him; and (3) that DOC discriminated against him by not giving him back-pay after they reinstated him. Plaintiff also alleges that DOC violated § 1983 by violating their own general orders and refusing to permit him to be firearm qualified. (See Compl. ¶ 2.)
The case was assigned to the Honorable Carol B. Amon. On June 29, 2005, defendant moved to dismiss the complaint. Judge Amon referred the motion to Magistrate Judge Lois Bloom for a report and recommendation. On February 10, 2006, this case was reassigned to this Court and, on February 23, 2006, the referral to Judge Bloom was vacated and the motion is now before this Court. Thereafter, on March 7, 2006, this Court issued an Order giving notice that it was converting defendant's motion to one for summary judgment on the issue of whether the claims are time-barred. In that Order, the Court gave both sides the opportunity to submit additional evidence. Plaintiff filed an "Amended Opposition" attaching several documents. All of plaintiff's submissions have been considered by the Court. Oral argument was held on April 20, 2006.
As a threshold matter, the Court addresses its decision to convert defendant's motion to dismiss certain claims as time-barred into one for summary judgment. A district court may convert a motion to dismiss into one for summary judgment provided that the court gives "sufficient notice to an opposing party and an opportunity for that party to respond." Gordon v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995); see also Beacon Enterprises Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983) ("[N]otice is particularly important when a party is proceeding pro se and may be unaware of the consequences of his failure to offer evidence bearing on triable issues.").
Plaintiff's submissions include an affidavit and several documents alleging facts that are not in the complaint, including various memoranda and correspondence with DOC dated long after the complaint in this case was filed. In an abundance of caution, the Court converted the motion and considers these submissions, and gave plaintiff an opportunity to supplement his various opposition papers with any additional evidence in support of his position that his discrimination claims are timely. In re G. & A. Books, Inc., 770 F.3d 288, 294-95 (2d Cir. 1985).
The Court notes that the materials relied upon by the defendant, namely the EEOC complaint filed by plaintiff, could have been properly considered on a motion to dismiss without converting it to one for summary judgment.*fn3 Nevertheless, because pro se plaintiff relies on various materials outside the complaint, the Court converts defendant's motion to dismiss based on timeliness into one for summary judgment. See Fed. R. Civ. P. 56. Both parties had notice of ...