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Josey v. New York City Police Dep't

July 7, 2008

ERIC JOSEY, PLAINTIFF,
v.
NEW YORK CITY POLICE DEPARTMENT, POLICE PENSION FUND BOARD OF TRUSTEES, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge

OPINION AND ORDER

Pro se plaintiff Eric Josey brings this action against, the New York City Police Department ("NYPD")*fn1 and the Police Pension Fund ("PPF") Board of Trustees,*fn2 alleging that the NYPD's failure to investigate properly his September 2003 motorcycle accident and its March 2005 denial of his request for a reasonable accommodation of the disability resulting from that accident, and the PPF Board of Trustees' February 2006 denial of his application for Accident Disability Retirement were discriminatory on the basis of disability and race and were taken in retaliation for his participation as a plaintiff in a prior lawsuit against the NYPD. He asserts claims pursuant to Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111 et seq. ("ADA"); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.; and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. He also asserts common law claims including breach of contract, breach of fiduciary duty, and negligence.

Defendants now move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), which will be treated as a motion for summary judgment. The Court concludes that because plaintiff filed his charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") more than 300 days after the allegedly discriminatory decisions he challenges, his ADA and Title VII claims are untimely and must be dismissed. In the absence of any cognizable federal claim for relief, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims and therefore grants defendants' motion for summary judgment in full.

I. PROCEDURAL POSTURE

In deciding a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), a Court, "in its discretion and upon notice to all parties, [may] consider materials outside the pleadings. If it does, however, the motion is to be treated as one for summary judgment and disposed of as provided by Rule 56." Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 53-54 (2d Cir. 1985); see Fed. R. Civ. P. 12(d).

Here, defendants submitted material outside of the pleadings-specifically, a copy of plaintiff's EEOC filing-with their motion papers, and also provided plaintiff a Local Civil Rule 12.1 notice, informing him of the possibility that defendants' motion could be converted to a motion for summary judgment, that the action could be dismissed without a trial, and that plaintiff had the opportunity to submit affidavits or other materials in support of his allegations. Plaintiff took that opportunity and, in his opposition to defendants' motion, submitted an affidavit and supporting papers specifically addressed to the central issue on this motion-the timeliness of his EEOC filing. The Court therefore concludes that plaintiff has had both notice of the possibility that this motion would be converted to one for summary judgment and a full opportunity to supplement his pleadings in order to oppose the motion, and the Court is treating this motion as one for summary judgment. See Fed. R. Civ. P. 12(d); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 324 n.1 (2d Cir. 1999); Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999); Baez v. Kahanowicz, 469 F. Supp. 2d 171, 174-75 & n.5 (S.D.N.Y. 2007); Sloane v. Mazzuca, No. 04 Civ. 8266 (KMK), 2006 WL 3096031, at *3 & n.6 (S.D.N.Y. Oct. 31, 2006).

II. BACKGROUND

Plaintiff, who is African American, was employed by the NYPD for the fifteen years between 1991 and 2006. (Amended Compl. ("Compl.") ¶¶ 10-11.) He served in various capacities during that time, including as a patrolman, a plainclothes and undercover officer, a detective, an instructor at the police academy, and, most recently, as a Special Weapons and Tactics Officer in the Emergency Services Unit. (Id. ¶ 13.)

According to plaintiff, on September 8, 2003, while off duty and riding his motorcycle in the 28th Precinct, he saw a woman being assaulted and kidnapped on the street. (Compl. ¶ 14; Police Accident Report, Ex. G to Compl.) When he stopped to intervene, according to plaintiff, the assailant recognized him from his duties in the precinct and fled. (Compl. ¶ 15.) Shortly thereafter, at an intersection near the scene of the incident, the assailant drove his car into plaintiff's motorcycle. (Id. ¶ 16.) Plaintiff was thrown from the motorcycle, struck a pole, and suffered major injuries. (Id. ¶ 17.) The assailant drove off. (Id.) Plaintiff was hospitalized for two and one half months, undergoing numerous surgeries, and then was transferred to a rehabilitation hospital, where he remained for another two and one half months. (Id. ¶¶ 18, 19.) After his hospitalizations, he spent two months in a wheelchair. (Id. ¶ 20.)

In January 2004, plaintiff was informed that the NYPD had submitted Ordinary Disability Retirement papers on his behalf. (Id.; EEOC Compl. dated Jan. 29, 2007 ("EEOC Compl.") at 3, Ex. 2 to Decl. of Ivan Mendez dated Nov. 30, 2007 ("Mendez Decl.").) Ordinary Disability Retirement would afford him a pension equivalent to one-half of his salary at the time of retirement. See N.Y. City Admin. Code § 13-257. (Compl. ¶ 21.)

On November 8, 2004, plaintiff was examined by the PPF Medical Board, which recommended approval of the application for Ordinary Disability Retirement. (Compl. ¶ 21; EEOC Compl. at 3.) In a letter dated January 24, 2005, plaintiff, through counsel, informed the PPF Board of Trustees that he intended to return to full duty in his previous position with the Emergency Services Unit and sought, "if necessary, a reasonable accommodation . . . to ensure that he is able to perform essential job functions under the Americans with Disabilities Act." (Compl. ¶ 22; Letter from Pamela R. Goshman to New York City PPF Board of Trustees dated Jan. 24, 2005, Ex. A to EEOC Compl.) The NYPD denied his request for a reasonable accommodation two months later because the PPF Medical Board had deemed him "not qualified to perform the essential duties of a police officer." (Compl. ¶ 23; Letter from Neldra M. Zeigler to Pamela Goshman dated Mar. 14, 2005, Ex. C to Compl.)

In May 2005, plaintiff submitted an application for Accident Disability Retirement, which is available to police officers injured in the line of duty and provides for a pension equivalent to three quarters of the officer's salary at the time of retirement. See N.Y. City Admin. Code §§ 13-252, -258. (Compl. ¶ 24.) Retirement on Accident Disability Retirement was therefore preferable for plaintiff to Ordinary Disability Retirement. On September 12, 2005, the PPF Medical Board reexamined plaintiff in connection with his application for Accident Disability Retirement. (Id. ¶ 25.) It concluded that although plaintiff "continue[d] to be seriously disabled," his application for a determination that he had suffered a "line of duty injury" arising from the September 8, 2003 accident had not been approved, and therefore his application for Accident Disability Retirement should also be denied. (Mem. from Medical Board to PPF Board of Trustees dated Sept. 12, 2005, ¶ 5, Ex. D to Compl.)

On February 8, 2006, the PPF Board of Trustees denied plaintiff's application for Accident Disability Retirement. (Compl. ¶ 26; EEOC Compl. at 4; Letter from Michael Welsome to Eric Josey dated February 8, 2006, Ex. C to EEOC Compl.) Plaintiff did not retire from the NYPD, however, until four and one half months later, on June 24, 2006. (Compl. ¶ 27; Aff. of Eric Josey dated Dec. 17, 2007 ("Josey Aff.") at 4.)

In May 2006, plaintiff initiated an Article 78 proceeding in the New York State Supreme Court, New York County, challenging the denial of his application for Accident Disability Retirement as arbitrary and capricious. (Compl. ΒΆ 28; Opinion of Justice Robert D. Lippmann dated Sept. 27, 2006 ("Sept. 27, 2006 Opinion"), Ex. B to Josey Aff.) In an order dated November 20, 2006, that court granted plaintiff's petition on the ground that the PPF Medical Board had failed to investigate sufficiently his claim that his injury occurred in the line of duty, and it ordered the PPF Board of Trustees to grant plaintiff Accident Disability Retirement. (Opinion of Justice Robert D. Lippmann dated Nov. 20, 2006, Ex. B to Josey Aff.; Sept. 27, 2006 Opinion.) On appeal of that decision, the New York State Supreme Court, Appellate Division, First Department, recently unanimously ...


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