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Roman-Malone v. City of New York

United States District Court, Second Circuit

July 25, 2013

CITY OF NEW YORK, SGT. VEGA, SGT. POLCI, SGT. PERAGINE, SGT. CADET, LT. COLELLA, LT. SCALA, CAPT. SIMONETTI, CAPT. CEDRIC RAYMOND, in their individual and professional Capacities, Defendants.


PAUL A. CROTTY, District Judge.

Laura Roman-Malone ("Plaintiff") brings this action against her former employer, the City of New York and various former supervisors and coworkers at the New York Police Department ("NYPD") alleging discrimination based on race, national origin, and gender, hostile work environment; and retaliation for engaging in protected activity. She alleges violations of 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, New York State Human Rights Law § 290, et seq. ("NYSHRL"), New York City Human Rights Law, Administrative Code § 8-101, et. seq. ("NYCHRL"), as well as the First Amendment, and due process and equal protection under the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Defendants move for dismissal pursuant to Fed.R.Civ.P. Rule 12(b)(6). For the reasons discussed below, Defendants' motion is GRANTED and Plaintiff's claims are dismissed.


Roman-Malone, a Hispanic and African American woman, is a former officer of the NYPD. After twenty years of service, Plaintiff retired on April 30, 2011. Plaintiff alleges that throughout her tenure at the 72nd Precinct in Brooklyn, New York, beginning in 2002, her supervisors issued her numerous command disciplines, assigned her to a prison van detail on July 30, 2007, transferred to a foot post detail in September 2009, and scolded and otherwise upbraided her on the basis of her gender, national origin, and race. Roman-Malone further asserts that such action was taken against her in retaliation for initiating a discrimination suit against the NYPD in 1999, filing an OEEO complaint against Captain Raymond, and making complaints against her supervisors. The 1999 suit resulted in a monetary settlement in Roman-Malone's favor. (Am. Compl. ¶ 25.)

Plaintiff identifies several examples of allegedly discriminatory and retaliatory conduct. (1) In 2008, Sergeant Polci issued Plaintiff a command discipline, purportedly in retaliation for her complaints that Sergeant Polci ordered prisoners to be transported in an unsafe manner. (2) On July 10, 2009, Sergeant Vega "approached Plaintiff and began to berate Plaintiff and pointed her finger in Plaintiff's face" in connection with transferring a call to Sergeant Vega. (Id. ¶ 28.) After Roman-Malone complained to Captain Raymond about Sergeant Vega's "unprofessional conduct, " on August 4, 2009, Sergeant Vega listed her in the Department's Violation Log and backdated the entry to July 10, 2009. (Id. ¶¶ 32, 31.) Roman-Malone filed another complaint against Sergeant Vega, this time for backdating the violation. (Id. ¶ 32.) Roman-Malone attempted to file a complaint with the OEEO on August 7, 2009, but it was not accepted. (Id. ¶ 35.) (3) On September 24, 2009, Lieutenant Scala "became irate and began to yell at Plaintiff" and later issued her a command discipline when she explained that she had directed two officers to chain several prisoners for transport. (Id. ¶ 36.) Roman-Malone was immediately placed on a foot post detail and reassigned to Squad C3. Plaintiff asserts that the assignment was retaliatory, since foot post is "usually given to rookies, less senior officers and officers who have been placed on some type of modification." (Id. ¶ 46.) On September 29, 2009, Plaintiff filed an OEEO complaint, after which the command discipline was dismissed. (Id. ¶ 49.) (4) Roman-Malone also alleges that she was disciplined more harshly than similarly situated officers. She compares herself, for example, to male Officer Mendez, who had not filed any complaints. In addition, Captain Simonetti removed Plaintiff from her tour after she was involved in a verbal altercation with a white female police officer. Both were issued command disciplines, but while Roman-Malone was placed on a prison van detail, the other officer was assigned to the detective squad. (5) Roman-Malone contends that Sergeant Cadet and Lieutenant Ortiz retaliated against her by informing her that she would not have a steady partner, did not deserve a steady partner, and warned her that she would get negative evaluations from her supervisors. (Id. ¶ 53.) They also told younger officers that she was a bad influence. Roman-Malone further claims that another officer overheard Lieutenant Colella and Sergeant Pergaine say that they would make the last few months of her employment miserable. (Id. ¶ 54.) (6) On January 7, 2011, approximately three months before she retired, Roman-Malone was issued fast-tracked command discipline "for failing to take proper police action." (Id. ¶ 56.) The command discipline was dismissed after her complaint to the deputy inspector.


When considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint" and construe the complaint in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 572 (2007) (internal quotation marks omitted). The Court only "assess[es] the legal feasibility of the complaint"; it does not "assay the weight of the evidence which might be offered in support thereof." Lopez v. Jet Blue Airways , 662 F.3d 593, 596 (2d Cir. 2011) (internal quotation marks omitted). To state a facially plausible claim, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . (citation omitted).

I. Title VII Claims Are Time-Barred

A Title VII action must be brought within 90 days of a claimant's or his counsel's receipt of a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). A document is presumed to be received three days after its mailing. Sherlock v. Montefiore Med. Ctr. , 84 F.3d 522, 525 (2d Cir. 1996). This presumption may be rebutted by "sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail...." Id. at 526.

Roman-Malone filed her complaint with the EEOC, which issued its right to sue letter on August 4, 2011. To be timely, the action had to be filed within ninety days of Plaintiff or her counsel's receipt of the letter. Both claim that they did not receive the EEOC's letter until August 25, 2011. In a pre-motion letter to the Court, counsel contends that the three-day presumption does not apply to him because the letter was improperly addressed, which resulted in significantly delaying its receipt. (Mashhadian Dec. Ex. B.) Assuming that these circumstances rebut the three-day presumption for Roman-Malone's counsel, they say nothing of Plaintiff's own receipt of the EEOC letter. Plaintiff asserts that she received the letter, dated August 4, 2011, on August 25, 2011, but fails to explain the three-week delay or provide any admissible evidence from which one can infer that the notice was either not mailed when dated or took longer than three days to reach her. Accordingly, the Court will apply the three-day presumption and assume that Roman-Malone received her letter on August 8, 2011.[1]

The ninety-day limitations period begins to run the earlier of the plaintiff's or counsel's receipt of the right-to-sue letter. See Tiberio v. Allergy Asthma Immunology of Rochester , 664 F.3d 35, 38 (2d Cir. 2011) (per curiam) ("[T]he 90-day limitations period set forth in 42 U.S.C. § 2000e-5(f)(1) begins to run on the date that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier. ") (emphasis added). Plaintiff's presumed receipt is earlier than her counsel's. Ninety days of August 8, 2011 was November 6, 2011. Since the action was not commenced until November 23, 2011, it was more than two weeks late. Accordingly, Roman-Malone's Title VII claims are time-barred and dismissed. (Dkt. No. 1.)[2]

II. Statutes of Limitations for § 1981 and § 1983 Claims

The statute of limitations is three years for § 1983 claims and four years for § 1981 claims. See Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda , 572 F.3d 93, 94 (2d Cir. 2009) (§ 1983); Lawson v. Rochester City Sch. Dist. , 446 Fed.Appx. 327, 328 (2d Cir. Oct. 28, 2011) (§ 1981). Since Plaintiff filed her complaint on November 23, 2011, any § 1983 claims can go back to November 23, 2008 and § 1981 claims to November 23, 2007. Any incidents prior to those dates are time-barred. The limitations periods exclude one incident-Plaintiff's assignment as a prison van operator on July 30, 2007. (Am. Compl. ¶ 27.)[3] The "continuing violations exception, " which permits recovery for discriminatory acts that occur outside the limitations period, does not apply, because Roman-Malone's assignment as a prison van operator is a discrete rather than continuing act. See Lightfoot v. Union Carbide Corp. , 110 F.3d 898, 907 (2d Cir. 1997) (noting that a job transfer or discontinuance of a particular job assignment is a "discrete act" that cannot form the basis of a continuing violation claim).

III. Liability Under 1983 for Violations of the First Amendment and Procedural Due Process

Section 1983 permits action against a "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." City of Monterey v. Del Monte Dunes , 526 U.S. 687, 749 n. 9 (1999). Plaintiff tries to conceal the weaknesses of her claims, mainly the § 1983 claim, by concocting a blend of alleged violations of the First Amendment, and due process and equal protection under the Fourteenth Amendment, against multiple defendants. (Am. Compl. ¶ 63.) On closer inspection, however, these claims fail.

To state a claim for a violation of procedural due process, Plaintiff must allege that she was deprived a protected interest in liberty or property, without adequate notice or opportunity to be heard. Stewart v. City of New York, 2012 U.S. Dist. LEXIS 96998, at *42 (S.D.N.Y July 10, 2012). Roman-Malone fails to allege a loss of a protected property interest. She asserts that her assignment to foot post diminished her ability to earn overtime (thereby affecting other benefits) (Am. Compl. ¶ 47), but overtime pay is not a constitutionally protected property interest. See id. at *43. Further, she has not pled inadequate ...

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