United States District Court, E.D. New York
HOWARD A. DOMITZ, Plaintiff,
THE CITY OF LONG BEACH, Defendant.
OFFICES OF WAYNE J. SCHAEFER, LLC Wayne J. Schaefer, Esq.
Attorneys for Plaintiff.
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.
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.
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
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.)
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
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
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.)
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
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).