Opinion
00 Civ. 6712 (SAS)
December 26, 2001
Aristotle Simpri, Bronx, New York, Plaintiff Pro Se.
Stephen Kitzinger, Assistant Corporation Counsel, New York, New York, for Defendant.
OPINION AND ORDER
Plaintiff, proceeding pro se, brings this action against the New York City Administration for Children's Services ("ACS"), alleging violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e to 2000e-17 ("Title VII), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 to 634 ("ADEA"). In particular, plaintiff, a black male, alleges that on June 10, 1996, he was denied a promotion to the position of Associate Staff Analyst upon succeeding Ingrid Johnson, a white female, who previously held that position. Defendant has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, defendant's motion is granted and this case is dismissed.
Incorrectly named by plaintiff as the New York City Agency for Children's Services.
The facts are taken from plaintiff's form Complaint as well as the materials submitted in opposition to the instant motion. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.").
In 1995, plaintiff, an employee of the Human Resources Administration ("HRA"), transferred to the HRA's Division of Aid Services and Income Support Contract Unit ("DASIS") as a Contract Manager. See Plaintiff's Affidavit in Opposition to Defendant's Motion for Judgment on the Pleadings ("Pl. Aff.") at ¶ 3. Plaintiff was classified as a Staff Analyst Level I while at DASIS. See Id. Plaintiff would have been promoted, however, along with the other Contract Managers, to Staff Analyst Level II in early 1997 had he remained at DASIS. See May 22, 2000 Letter from John A. Dereszewski, Director of Contract Services.
At the urging of George Lang, then director of ACS's Audit Review and Analysis Unit, plaintiff transferred to ACS on June 10, 1996. See August 20, 2001 Letter from Aristotle Simpri ("8/20 Ltr.") at 1. Plaintiff agreed to the transfer based on the understanding that he would receive the same salary and position at ACS that he would have received if he remained at DASIS. See id.; see also January 22, 1999 Letter from George Lang (stating that plaintiff "was promised the Staff Analyst II position based on the fact [that] DAS[IS] was to upgrade all those in the Staff Analyst grade").
At ACS, plaintiff replaced Johnson, an Associate Staff Analyst who made approximately $48,000 per year. See Complaint, Ex. A to the Declaration of Stephen Kitzinger, Assistant Corporation Counsel, in Support of Defendant's Motion for Judgment on the Pleadings ("Kitzinger Decl."), ¶ 8(3). While at ACS, plaintiff performed the same job functions as Johnson had but his annual salary of approximately $35,000 was never increased to reflect the promised promotion. See id. ¶ 8(1), (4) and (6). On August 1, 1997, plaintiff wrote a letter to Tom Welsh, Director of ACS's Audit Review and Analysis Unit, requesting that his status be adjusted to that of Associate Staff Analyst. See 8/1/97 Letter from Aristotle Simpri to Tom Welsh. Receiving no response, plaintiff issued a memorandum to the Director of ACS's Staff Analysts' Union formally reporting the situation and requesting that corrective action be taken. See 12/11/98 Memorandum to Bob Crogan, Union Director, from Aristotle Simpri. The Union took up the matter on February 5, 1999. See 8/20 Ltr. at 1. On May 5, 1999, plaintiff filed a charge of discrimination based on race, color, sex and national origin with the Equal Employment Opportunity Commission ("EEOC"). See id.; see also Charge of Discrimination, Ex. B to Kitzinger Decl. The EEOC issued a right to sue letter on May 18, 2000. See Dismissal and Notice of Rights Letter, Ex. A to Kitzinger Decl. Plaintiff's Complaint is dated July 27, 2000. See Complaint at 5.
The Associate Staff Analyst position at ACS is presumably comparable to the Staff Analyst Level II position at DASIS.
II. DISCUSSION
A. Legal Standard
The standard applicable to a motion to dismiss under Rule 12(c) is the same as that under Rule 12(b)(6). See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., No. 00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).
To rule on a 12(b)(6) motion, a court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See ICOM Holding, 2001 WL 46675, at *1. Nevertheless, "[t]o survive a motion to dismiss, [plaintiff's] claims must be `supported by specific and detailed factual allegations' not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lermnan v. Board off Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10(1980) and Haines v. Kerner, 404 U.S. 519, 520-21(1972)). Thus, dismissal is "`appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Friedl, 210 F.3d at 83 (quoting Harris, 186 F.3d at 250 (internal quotation marks omitted)). "`This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se.'" Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).
B. Plaintiff's Title VII Claim is Time-Barred
With regard to the filing of a charge of discrimination with the EEOC, Title VII provides:
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.42 U.S.C. § 2000e-5(e)(1). In New York, a so-called deferral state because of the existence of the State Division of Human Rights, an employee has 300 days from the time when he knew or should have known of the alleged discrimination to file a complaint with the EEOC. See Harris v. City of New York, 186 F.3d 243, 247-48 n. 2 (2d Cir. 1999).
Here, the adverse employment action complained of, namely the failure to promote plaintiff to Associate Staff Analyst, occurred on June 10, 1996, the date on which plaintiff transferred to ACS. Plaintiff, however, filed his EEOC charge on May 5, 1999, almost three years later. In those intervening years plaintiff filed two appeals for an adjustment of his status — on August 1, 1997 and on December 11, 1998. This scenario raises the following question: Did the discriminatory act occur when plaintiff transferred to ACS but was not promoted or did ACS continuously fail to promote plaintiff in furtherance of a discriminatory policy. If it is the latter, the continuing violation exception may save plaintiff's claim. With regard to that exception, the Second Circuit has
made it clear that a continuing violation cannot be established merely because the claimant continues to feel the effects of a time-barred discriminatory act. Nor can an otherwise barred claim be rendered timely by the mere continuation of the claimant's employment. Rather the claimant must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy.Harris, 186 F.3d at 250 (citations omitted).
The problems with applying the continuing violation exception here are twofold. First, while the August 1, 1997 letter can be liberally viewed as a repeated request for a promotion that was ultimately denied, the December 11, 1998 Memorandum cannot. In that Memorandum, plaintiff complains that "it is over two and [a] half years since my assumption of the above position with nothing done to effect the change" and then requests "what rightly was promised to [him] for over two and a half years now." Accordingly, the December 1998 Memorandum is not another promotion request but rather a formal grievance of defendant's inaction with respect to the promotion promised in 1996. This conclusion is supported by the fact that the Memorandum is addressed to a union official, rather than a supervisor in charge of personnel decisions.
In Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997), the Second Circuit decided a similar issue adversely to the plaintiff. There, the plaintiff insisted that he should have received a pay raise in 1988 when he was promoted to Business Director. With regard to the missed 300 day filing period, the Second Circuit stated:
If Lightfoot was entitled to a pay raise because of the added responsibilities of his new position, the entitlement arose at the time of his promotion. "Completed acts such as a termination through discharge or resignation, a job transfer, or discontinuance of a particular job assignment, are not acts of a `continuing' nature." Malarkey v. Texaco, 559 F. Supp. 117, 121 (S.D.N.Y. 1982), aff'd, 704 F.2d 674 (2d Cir. 1983) (per curiam) (affirming on grounds of failure to state a claim). Lightfoot's attempt to characterize as a continuing violation Carbide's alleged failure to compensate him adequately is therefore unavailing.
Lightfoot next argues that Carbide's failure to offer him adequate compensation should nevertheless be considered a continuing violation because Lightfoot continued to feel the effects of the lower pay up to the time he was terminated and because another manager was later promoted to the business director position at a higher salary. This position is clearly without merit under Malarkey. See 559 F. Supp. at 121. A continuing violation is not established merely because an employee continues to if eel the effects of a discriminatory act on the part of the employer. To hold otherwise would render meaningless the time limitations imposed on discrimination actions.Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (emphasis added). Thus, while the 1997 Letter may be viewed as an otherwise actionable denial of promotion in its own right, the 1998 Memorandum is a formal grievance as to defendant's failure to act in 1996. While the 1998 Memorandum is within the 300-day filing period, it cannot save the 1996 failure to promote claim from being time-barred.
The Complaint does not allege that a discriminatory act occurred on August 1, 1997. Even if such a claim were alleged, it too would be time-barred as it similarly falls outside the 300-day period.
The continuing violation doctrine is also inapplicable because plaintiff has not alleged that defendant's failure to promote him was premised on any ACS practice or policy of discrimination. See Harris, 186 F.3d at 249 ("to advance a continuing violation claim a plaintiff must point to his disparate treatment stemming from a continuous practice of intentional discrimination"). The closest plaintiff comes to alleging a discriminatory policy or practice is in his Affidavit where he states:
Since the move from 80 Lafayette Street to 150 William Street Ms. Brown and Tom Welsh have shown their segregation tendencies where a whole section of the 10th floor audit was occupied by only white workers. They promoted all white, less qualified employees and neglected the blacks who were more qualified, and were used to instruct the less qualified white workers in the division.
Pl. Aff. at ¶ 8. This statement, however, does not sufficiently allege a discriminatory policy by ACS. At best, the statement describes the discriminatory actions of two ACS employees. Even if true, those allegations cannot support a claim that ACS had a discriminatory policy. Moreover, plaintiff does not allege that Ms. Brown or Tom Welsh had anything to do with the denial of his promotion in 1996. Accordingly, whether these employees engaged in discriminatory acts has no relevance for plaintiff's failure to promote claim.
In sum, because plaintiff filed his EEOC Charge of Discrimination more than 300 days after the accrual of his claim, and because the continuing violation exception is inapplicable under the circumstances, plaintiff's Title VII claim is time-barred.
C. Plaintiff has Failed to File a Charge of Age Discrimination as Required by the ADEA
As a prerequisite to bringing an action under the ADEA, a plaintiff must file a charge of age discrimination with the EEOC within 300 days of the alleged act of discrimination. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999). Even if plaintiff's charge of racial discrimination had been timely, plaintiff has failed to allege discrimination based on age. In his EEOC Charge of Discrimination, plaintiff neither checked off the "Age" box as a cause of discrimination nor did he claim age discrimination in the narrative portion of the Charge. Accordingly, plaintiff has failed to exhaust his administrative remedies with regard to his age claim. As a result, that claim must be dismissed.
D. The ACS is a Non-Suable Entity
As an alternative ground, the Complaint against ACS must be dismissed because ACS is an agency of the City of New York and, as such, cannot be sued. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 16 § 396. See also Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (holding that New York City Police Department cannot be sued independently because it is an agency of New York City). Ordinarily, leave to amend would be granted to allow plaintiff to sue the proper party, namely the City of New York. However, amendment would be futile here, given that all claims have been dismissed on grounds that could not be saved by an amended pleading.
III. CONCLUSION
For the reasons stated above, defendant's motion for judgment on the pleadings is granted and this case is dismissed. The Clerk of the Court is directed to close this case.