Opinion
04 Civ. 0559 (RWS).
October 24, 2005
ANTHONY MENDEZ, Plaintiff Pro Se, Far Rockaway, NY.
HONORABLE MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorneys for Defendants, New York, NY, By: CHAD I. ROSENTHAL, Assistant Corporation Counsel Of Counsel.
OPINION
Defendants the City of New York (the "City"), the Human Resources Administration of the City of New York ("HRA"), Joann Schoonmaker ("Schoonmaker"), Joseph Santino ("Santino"), and Vincent Martino ("Martino"), have moved pursuant to Rules 12(b)1 and 12(b)6 to dismiss the complaint of pro se plaintiff Anthony Mendez ("Mendez") in part. For the reasons set forth below, the motion is granted.
Prior Proceedings
Mendez, employed as a painter in HRA, filed his complaint on January 23, 2004, alleging that HRA failed to promote him to the position of Supervisor of Painters based upon his race, which Mendez identifies as "Puerto Rican," (Complt. ¶ 3) and that Santino conspired with Schoonmaker and a Mr. Neenan to deliberately deny him the position based upon his race.
Mendez filed a charge of discrimination with the New York State Division of Human Rights ("SDHR") in December 2002 and with the EEOC. The SDHR found no probable cause in a decision dated August 23, 2003. By right to sue letter dated October 20, 2003, the EEOC adopted the decision of the SDHR.
The instant motion was fully submitted on July 27, 2005.Any Time-Barred Claims Are Dismissed
Title VII claims brought in New York are subject to a 300-day statute of limitations for filing with the EEOC. See 42 U.S.C. § 2000e-5(e); see also National Railroad Passenger Corp. ("AMTRAK") v. Morgan, 536 U.S. 101, 113 (2002); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 327 (2d Cir. 1999). Any Title VII claims that are not encompassed within the administrative complaint or which accrued more than 300 days prior to the filing of the administrative complaint are barred by the applicable statute of limitations. See Ford v. Bernard Fineson Development Ctr., 81 F.3d 304, 305 (2d Cir. 1996); see also Harris v. City of New York, 186 F.3d 243, 251 n. 5 (2d Cir. 1999).
The complaint fails to clarify when the alleged discrimination and retaliation occurred. The charge of discrimination was filed on December 5, 2002. Therefore, any claim accruing prior to February 8, 2002 (300 days prior to December 5, 2002) is time-barred.
The statute of limitations under the NYSHRL is three years.Koerner v. State of New York, 62 N.Y.2d 442, 446, 467 N.E.2d 232, 233, 478 N.Y.S.2d 584, 585 (1984). Therefore, to the extent that Mendez is attempting to assert claims that are older than three years prior to the filing of the instant complaint, those claims are time-barred. Time VII Claims Against Individual Defendants Are Dismissed
It is well-settled that individuals cannot be sued under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). In Tomka, the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Id. at 1313. Mendez cannot state a claim under Title VII against the individually named defendants. Therefore, all Title VII claims against all individually named defendants, including Schoonmaker, Santino, and Martino, are dismissed.
The NYSHRL Claims Are Dismissed
The NYSHRL provides for two alternative fora for litigating discrimination claims under that statute. N.Y. Exec. L. § 297(9). The individual may either press the NYSHRL claim in an administrative forum or the individual may elect to proceed to court. This election of remedies precludes the individual from proceeding in both fora. Moodie v. Federal Reserve Bank of NY, 58 F.3d 879, 883-84 (2d Cir. 1995) (holding that filing in an administrative forum deprives courts of subject matter jurisdiction under pre-1997 version of § 297(9)). The only exception to this doctrine of mutually exclusive remedies, an exception inapplicable to the instant case, is a dismissal for administrative convenience. See N.Y. Statutes L. 1997, ch. 374;see also Marine Midland Bank v. New York State Div. of Human Rights, 75 N.Y.2d 240, 245, 552 N.Y.S.2d 65, 551 N.E.2d 558 (1989). If the SDHR dismisses a claim for administrative convenience then the individual may pursue that claim in court. Id. Otherwise, the pursuit of the same claim in two fora is prohibited by the statute. See Oriol v. Mt. Sinai Hospital, 201 A.D.2d 449, 450, 607 N.Y.S.2d 391 (2d Dep't 1994).
Here, Mendez has interposed the very same claims that he put forward in the NYSHRL charges, charge number 1A-E-OR-5806361, dated December 5, 2002. The claims in that charge include failure to promote and retaliation. The charge was dismissed by a "no probable cause" determination of the SDHR. Therefore, all of the NYSHRL claims in the case at bar are dismissed.
All Claims Other Than Title VII Claims Are Dismissed
The Supreme Court has recognized that collateral estoppel may apply to determinations of administrative agencies which act in a judicial capacity, as well to decisions of other courts. See University of Tennessee v. Elliott, 478 U.S. 788, 797-98 (1986). The Court has also stated that the doctrine "is equally implicated whether fact-finding is done by a federal or a state agency." Id. at 798. In DeCintio v. County of Westchester Medical Center, the Second Circuit examined the question of whether a § 1983 claim would be barred on the basis of an earlier determination of the New York State Division of Human Rights that there was "no probable cause" to believe that the plaintiff had been discriminated against by his employer. 821 F.2d 111, 117-18 (2d Cir.), cert. denied, 484 U.S. 965 (1987); see also University of Tennessee, 478 U.S. at 798 (issue preclusion may be had from administrative findings). The Second Circuit in DeCintio found that under New York law administrative determinations are given collateral estoppel effect and applied that doctrine to the finding of the State's Division of Human Rights. 821 F.2d at 117-18. The Court held that the informality of the process of the state agency did not deprive the determination of that agency of preclusive effect. The Second Circuit held that issue preclusion applied and dismissed the § 1983 claim. Id. The DeCintio court held that there was no issue preclusion effect from a SDHR claim to a Title VII claim because Congress in enacting Title VII did not intend for the mandatory administrative procedures to preclude the later pursuit of that same claim in court. Title VII is, therefore, a legislatively enacted exception to the general issue preclusion rules.
Here, the SDHR has held that there is no probable cause to believe that there was any discrimination in the alleged failure to promote and that there was no probable cause to believe that Mendez had been the subject of retaliation. Therefore, all claims contained in the charges filed with the SDHR, and which were decided by the SDHR, other than Title VII claims, are precluded and are dismissed. Claims Against Martino Are Dismissed
In his complaint Mendez does not set forth any factual allegations against Martino. As such, Mendez's complaint does not state a claim upon which relief can be granted. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ("a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."); Ying Jing Gan v. City of New York, 996 F.2d 522, 534 (2d Cir. 1993) ("In assessing the sufficiency of a pleading to state a claim on which relief can be granted, the court is required to accept as true only the pleading's factual allegations, not the assertions of law."). A defendant should not be held to answer a complaint which makes no allegations against that defendant and which does not allege personal involvement of the defendant in the violation of the civil rights of the plaintiff. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). Nor has Mendez outlined any possible supervisory involvement. See Williams, 781 F.2d at 323-24 (outlining possible supervisory involvement under § 1983). Consequently, the action is dismissed against Martino in its entirety. HRA Is Dismissed
The complaint appears to be attempting to assert claims against HRA. HRA is an agency of the City created and existing by virtue of the New York City Charter. The New York City Charter further provides that "[a]ll actions or proceedings for the recovery of penalties for the violation of any law should be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." New York City Charter, Ch. 17, § 396. As a subdivision of the City of New York, it has long been held that the NYPD is not a suable entity. See East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992); see also Bailey v. New York City Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996). This rationale also applies to the HRA. Therefore, all claims as against HRA, as opposed to the City, are dismissed.
Conclusion
The motion to dismiss the complaint is granted and all claims against all defendants under the New York State Human Rights law are dismissed; all time-barred Title VII claims are dismissed; all Title VII claims against the individual defendants are dismissed; and all claims against defendants Martino and HRA are dismissed. Leave is granted to file an amended complaint within forty (40) days.
It is so ordered.