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Domitz v. City of Long Beach

United States District Court, E.D. New York

June 16, 2017

HOWARD A. DOMITZ, Plaintiff,
v.
THE CITY OF LONG BEACH, Defendant.

          LAW OFFICES OF WAYNE J. SCHAEFER, LLC Wayne J. Schaefer, Esq. Attorneys for Plaintiff.

          ROBERT M. AGOTISTI, CORPORATION COUNSEL, CITY OF LONG BEACH BY: Richard A. Berrios, Esq., Assistant Corporation Counsel Attorneys for Defendant.

          MEMORANDUM AND ORDER

          LEONARDO. WEXLER United States District Judge.

         Before the Court is Defendant's motion to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted. Plaintiff opposes the motion. For the following reasons, Defendant's motion is granted and Plaintiffs Complaint is dismissed in its entirety.

         BACKGROUND

         Plaintiff, Howard Domitz ("Plaintiff" or "Domitz"), commenced his employment with Defendant City of Long Beach ("Defendant" or the "City") on February 27, 1978 as a Police Officer. (Compl. ¶ 8.) Plaintiff was promoted twice during his employment - first, to Sergeant in November 2002 and second, to Detective Sergeant in July 2003. (Id.)

         Plaintiff retired from his employment with the City, effective April 27, 2012 and began receiving a service retirement benefit pursuant to his membership in the New York State and Local Police and Fire Retirement System. (Id. ¶ 9.) Up until his retirement, Plaintiffs certified collective bargaining representative with regard to his employment with the City was the Long Beach Police Benevolent Association, Inc. (the "PBA"). (Id.)

         At the time of Plaintiff s retirement, the most recent collective bargaining agreement ("CBA") between the City and the PBA was for a term from July 1, 2003 to June 30, 2008. (Id. ¶ 10.) Pursuant to Section 23(e) of that CBA, Plaintiff was entitled to choose between a lump sum cash payout for unused sick leave, termination pay and personal leave (the "Separation Payout") immediately upon his retirement or pursuant to any installment schedule that he chose, provided that full payment was made within five years of his retirement. (Id ¶ 11.) Plaintiff elected to receive his Separation Payout in equal, bi-weekly installments, to be paid in full within five years of his retirement. (Id.)

         On March 29, 2013, the City and the PBA were parties to an interest arbitration award (the "Arbitration Award"), which provided for a base salary increase ranging from 2.75% to 3.75% for City police officers for the period July 1, 2008 to June 30, 2015. (Id ¶ 13.) Pursuant to the Arbitration Award, Plaintiff received a lump sum payment in January 2014 of the applicable base salary increase for the hours he worked from July 1, 2008 until his last day prior to retirement on April 26, 2012. (Id. ¶ 14.) As per the Arbitration Award, the City did not recalculate Plaintiffs Separation Payout to reflect the retroactive wage increase. (Id.; Arbitration Award at 44, annexed as Ex. B to Berrios Decl.)[1]

         Pursuant to Section 22(a)(1) of the CBA in effect at the time of Plaintiff s retirement, Plaintiff was entitled to continue to be reimbursed by the City for out-of-pocket medical expenses exceeding certain levels during his retirement. (Compl. ¶ 21.) On or about August 12, 2013, the City notified Plaintiff that, pursuant to the Arbitration Award, they would no longer reimburse its police officer retirees for out-of-pocket medical expenses. (Id ¶ 22; Arbitration Award at 45.)

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on or about April 16, 2014, alleging that the City discriminated against him on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§290 61860, (Compl.¶24.) On January 11, 2016, the EEOC issued a Dismissal and Notice of Rights, advising Plaintiff that, based upon its investigation, it was unable to conclude that the City had discriminated against Plaintiff. (Id ¶ 27.)

         Plaintiff commenced the within action on April 8, 2016, alleging age discrimination in violation of the ADEA and the New York Human Rights Law for the City's failure to recalculate his Separation Payout to reflect the retroactive wage increase provided for in the Arbitration Award and for the cessation of reimbursement of out-of-pocket medical expenses. The City now moves to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6).

         DISCUSSION

         I. Le ...


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