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Reyes v. College of Science Administration Rochester Institute of Technology

United States District Court, W.D. New York

October 9, 2014

VINCENT M. REYES (who is a legal citizen of the USA), Plaintiff,
v.
THE COLLEGE OF SCIENCE ADMINISTRATION ROCHESTER INSTITUTE OF TECHNOLOGY Composed of Dean Sofia Maggelakis, Ex. Dept. Head of Bio Gary Skuse, RIT Provost Jeremy Hacfner, Defendants

Vincent M. Reyes, (who is a legal citizen of the USA), Plaintiff, Pro se, W. Henrietta, NY.

For The College of Science Administration Rochester Institute of Technology, Composed of Dean Sofia Maggelakis, Ex Dept. Head of Bio Gary Skuse, RIT Provost Jeremy Hacfner, Defendant: Trent M. Sutton, LEAD ATTORNEY, Littler Mendelson, P.C., Rochester, NY.

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DECISION AND ORDER

DAVID G. LARIMER, United States District Judge.

Pending before the Court is defendants' motion to dismiss this discrimination action pursuant to Fed. R. Civ. Proc. 12(b)(6) on the grounds that plaintiff failed to file a timely administrative charge, that plaintiff has failed to state a plausible constitutional claim, and that the Court should decline to exercise jurisdiction over plaintiff's remaining state law claim. (Dkt. #8). For the reasons set forth below, the motion is granted and the complaint is dismissed.[1]

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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Where, as here, a plaintiff is proceeding pro se, the Court must construe the complaint liberally and " interpret [it] to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

Plaintiff, a former employee of defendant Rochester Institute of Technology (" RIT" ), filed his pro se complaint on or about January 14, 2014, asserting claims of harassment, discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000 et seq., as well as violations of unspecified portions of the United States Constitution and a state common law claim of intentional infliction of emotional distress. The factual nexus of plaintiff's claims involves the termination of his employment as an

Page 277

Assistant Professor for RIT's College of Science on June 30, 2012, upon the expiration of a one-year contract which followed the denial of tenure.

The exhibits annexed to plaintiff's complaint indicate that he first filed an administrative charge of discrimination on or about October 18, 2013, with the Equal Opportunity Employment Commission (" EEOC" ). (Dkt. #1 at 23). Defendants add that on or about November 8, 2013, plaintiff filed a second administrative charge with the New York State Division of Human Rights (" NYSDHR" ), which reiterated the claims made in the EEOC charge and included additional claims of discrimination and retaliation. (Dkt. #8-2 at Exh. C). Both the EEOC and NYSDHR dismissed the complaints before them, on the grounds of untimeliness. (Dkt. #8-2, at Exhs. B and C).

Title VII requires a claimant to file a discrimination charge with the EEOC within 180 days of the alleged unlawful employment practice or, if the claimant initially instituted proceedings with a state or local equal employment agency, within 300 days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). The filing of a timely administrative charge is generally an essential prerequisite to a federal Title VII case. In the context of discriminatory discharge, the limitations period runs from " the date when the employee receives definite notice of the termination, not upon his discharge." Cunningham v. Figurilli, at *23 (N.D.N.Y. 2013) ( quoting Miller v. IT& T, 755 F.2d 20, 25 (2d Cir. 1985)).

Here, although plaintiff may dispute the legitimacy of RIT's decision not to grant tenure, he admits (indeed, alleges) that he was duly notified of his impending termination on June 1, 2011 - one year before it took effect. (Dkt. #1 at 17). Plaintiff's initial administrative charge was not filed with the EEOC until October 18, 2013, 870 days after he was notified of his termination and 504 days after it took effect. Plaintiff makes no factual allegations of discriminatory activity occurring after December 19, 2012, when RIT denied plaintiff's final request for " reconsideration" of his termination. As such, plaintiff's Title VII discrimination claims are manifestly untimely, and are dismissed.[2]

The complaint also purports to state constitutional claims. First, plaintiff alludes to unlawful " ex post facto" policymaking, in the form of a questionnaire that was distributed by an RIT Dean, asking whether collegiality should be a factor considered in tenure decisions. Plaintiff alleges that this factor weighed against him, and was included in tenure decisions solely to target him, in violation of his constitutional rights. To the extent that plaintiff believes that any defendant's actions violated the Ex Post Facto Clause of the United States Constitution, that clause does not apply to non-government ...


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