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Cipollaro v. NYC Transit Authority

United States District Court, S.D. New York

September 12, 2014


DAVID CIPOLLARO Fort Lauderdale, FL, Pro Se.

Kristen M. Nolan, Esq., NEW YORK CITY TRANSIT AUTHORITY, Brooklyn, NY, Attorney for the Defendant.


ROBERT W. SWEET, District Judge.

Plaintiff David Cipollaro pro se ("Plaintiff" or "Cipollaro") has moved to amend his complaint, alleging discrimination by the defendant New York City Transit Authority ("Defendant" or "NYCTA") in failing to hire him. Plaintiff has also moved to change venue on the grounds of "fears for personal safety." The NYCTA has moved pursuant to Federal Rules of Civil Procedure 12 (b) (1) and 12 (b) (6) to dismiss Plaintiff's complaint.

Based on the conclusions set forth below, the Plaintiff's motions are denied, and the Defendant's motion is granted and the complaint is dismissed with prejudice.

Prior Proceedings

Plaintiff applied for a position as a bus maintainer at NYCTA. (See Nolan Ex. B.)[1] Bus maintainers, who perform mechanical work, are required to frequently test drive buses on city streets amidst the public. (See Nolan Dec. Ex. 1 at ¶ 5.) Plaintiff was considered but not selected for the job due to his driving record and history of harassment. Id . Within the past six years from the date of Plaintiff's application for employment, Plaintiff's driving record included, among other violations, a crash (11/07), a conviction for speeding (4/06), a conviction for running a red light (11/08), a conviction for driving on the wrong side of the road (3/06), and two separate convictions for driving without a license (in 5/06 and 8/06). (See Nolan Dec. Ex. 1 at ¶ 5, Ex. B.) Plaintiff had a third conviction for unlicensed operation in April of 2005 and he was convicted of harassment in the second degree in August of 2005. (Nolan Dec. Ex. 1 at ¶ 6.) In March of 1992, he pled guilty to assault and leaving the scene of an accident. Id.

Plaintiff was notified by letter dated September 30, 2011 that he was considered but not selected for the bus maintainer position. (Nolan Dec. Ex. 2.) Thereafter, on or about October 14, 2011, Plaintiff filed a complaint with the New York State Division of Human Rights ("SDHR") alleging he was not hired due to discrimination concerning his arrest record, creed/religion, and race/color/ethnicity. (Nolan Dec. Ex. A.) A no probable cause finding was issued by the SDHR on March 20, 2012. (Nolan Dec. Ex. 3.) Plaintiff never appealed this decision.

Further, the Equal Employment Opportunity Commission ("EEOC") issued a right to sue letter dated August 16, 2012, instructing Plaintiff that a lawsuit must be filed within 90 days of receipt of the notice. (Nolan Dec. Ex. 4.)

Plaintiff served the NYCTA with a document entitled "Order to Show Cause in Special Proceeding" in the Supreme Court of the State of New York, County of Kings (claiming he was not hired for the bus maintainer position due to "discrimination & race") on or about December 14, 2011. (Nolan Dec. Ex. 5.) This case was dismissed by the Honorable Carl J. Landicino on July 3, 2012 after Plaintiff failed to appear in court on multiple occasions. (Nolan Dec. Ex. 6.)

Plaintiff then brought another "Order to Show Cause in a Special Proceeding" in the same court on July 16, 2012 - again challenging the same September 30, 3011 decision not to hire him for the bus maintainer position (due to "discrimination against my arrest record"). (Nolan Dec. Ex. 8.) This case was dismissed on the merits, in addition to other reasons, on September 18, 2013. (Nolan Dec. Ex. 8.)

Plaintiff filed the complaint in this action on or about November 11, 2013 - approximately 452 days after the right to sue letter was issued. The complaint for employment discrimination alleges discrimination based on race and his criminal record (Compl. ¶ II(E)) in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2000e-17), the New York State Human Rights Law, N.Y. Exec. Law§§ 290-297, and the New York City Human Rights Law, N.Y. City Admin. Cod. §§ 8-101-131.

By order dated January 7, 2014, Plaintiff was ordered to amend such complaint, and Plaintiff never did so. However, Plaintiff did submit an attachment as an exhibit to the complaint entitled "Order to Amend" dated January 11, 2014 reiterating his belief that his failure to be hired by NYCTA on or about August of 2011 was due to discrimination based on his criminal record and race (which he identified as being White Caucasian Italian) without alleging any facts from which inference of discrimination could be made.

By letter dated January 11, 2014, Plaintiff submitted his alleged amended complaint which did not include ...

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