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Mark Mitchell v. New York City Police Department

December 17, 2010


The opinion of the court was delivered by: John Gleeson, U.S.D.J.


City Police Department ("NYPD") brings this pro se action against the NYPD for alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., and the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. The NYPD moves to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6) because it is time-barred, because Mitchell has failed to state a claim, and because the NYPD cannot be sued in its independent capacity.

Mitchell filed no opposition to the motion. Oral argument was scheduled for December 17, 2010, but Mitchell failed to appear. For the reasons stated below, the motion to dismiss is granted with leave to replead the FMLA claim within thirty days.

Attached to Mitchell's complaint is a letter to the Court from his wife, Gladys Mitchell ("Ms. Mitchell"). Ms. Mitchell asks that she and the couple's three daughters be allowed to intervene as plaintiffs in this action. For the reasons stated below, Ms. Mitchell's motion is denied.


The following allegations can be gleaned from Mitchell's complaint, which provides scant factual background. As an employee with the NYPD, Mitchell began to take advantage of the FMLA in 1999. On June 12, 2007, he was placed on Dismissal Probation by the NYPD pursuant to a stipulation.*fn2 The reasons for his probation are not stated. Beginning in July 2007, after he had been placed on probation, Mitchell was denied FMLA leave. On the first or second day of June 2008,*fn3 two weeks before his probation ended, Mitchell was terminated for taking sick leave. In its letter of termination, the NYPD stated that he was dismissed for violating the conditions of his probation.

At some point prior to April 16, 2010, Mitchell filed a complaint with the United States Department of Labor, Wage and Hour Division ("WDH"). On June 1, 2010, he filed a charge with the Equal Employment Opportunity Commission ("EEOC"), as well as a charge with either the New York State Division of Human Rights or the New York Commission of Human Rights. On June 28, 2010, the EEOC issued Mitchell a right to sue letter with respect to his ADA claims. The present action was filed on July 8, 2010.


A. Liberal Construction of a Pro Se Plaintiff's Complaint Where a plaintiff proceeds pro se, the court must liberally construe his submissions on "the understanding that '[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (alteration in the original). In construing Mitchell's complaint, I therefore "interpret [it] 'to raise the strongest arguments that [it] suggest[s],'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (alterations added).

B. Legal Standard for a 12(b)(6) Motion to Dismiss

When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009). A claim is facially plausible only if the pleaded facts permit a court reasonably to infer that the defendant is liable for the alleged misconduct. Id.

C. Mitchell's ADA Claim

Any claim asserted by Mitchell under the ADA is time-barred because he failed to file an administrative complaint with the EEOC within the time allotted by statute. A claim under the ADA accrues when the plaintiff "knew or had reason to know of the injury serving as the basis for his claim." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). Pursuant to 42 U.S.C. § 2000e-5(e) -- which is incorporated by reference into the ADA by 42 U.S.C. § 12117(a) -- a plaintiff in New York has 300 days from the date of accrual to file an ADA charge with the EEOC. Harris, 186 F.3d at 247-48; see also id. at 247 n.2 ("the existence of the State Division of Human Rights ("DHR") makes New York a so-called deferral state for [ADA] purposes," such that the 300-day rule applies (citations omitted)). Mitchell filed his EEOC charge on June 1, 2010. Any claims arising out of events of which Mitchell was aware more than 300 days prior to June 1, 2010 -- or before September 4, 2009 -- are therefore time-barred. Mitchell was informed of his termination by the NYPD by letter dated June 2, 2008, approximately fifteen months before September 4, 2009. Because Mitchell failed to file a timely charge with the EEOC, any claim under the ADA arising out of his employment with, or termination by, the NYPD is dismissed.

Because he can plead no additional facts that would render his ADA claim timely, Mitchell is denied leave to replead that claim. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (leave to replead should be denied where "better pleading ...

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