Summary
relying upon Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994)
Summary of this case from Hodge v. City of Long BeachOpinion
99 Civ. 5081 (GBD)
November 19, 2003
OPINION
Pro se plaintiff brings this action against his former employer, the New York City Department of Juvenile Justice, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1981. Plaintiff claims that he was unlawfully terminated because of his race. The Corporation Counsel of the City of New York, on behalf of the defendant, moves to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendant's motion is granted and plaintiffs complaint is dismissed in its entirety.
BACKGROUND
Plaintiff, an African-American, filed his original complaint on May 3, 1999 alleging discriminatory failure to hire, discriminatory termination of his employment, unequal employment terms and conditions and discriminatory retaliation in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990. On July 14, 1999, the Court granted plaintiff's request to proceed in forma pauperis and, finding plaintiff's complaint deficient, allowed plaintiff to submit an amended complaint. Plaintiff filed an Amended Complaint on September 10, 1999, this time alleging discriminatory termination of his employment and unequal employment terms and conditions in violation of 42 U.S.C. § 1981 and the "NYS Human Rights Law." On October 28, 1999, the Court found that plaintiff's Amended Complaint, which alleged violations under 42 U.S.C. § 1981 rather than under Title VII or the Age Discrimination in Employment Act, "does not provide sufficient facts to support a claim under § 1981" and granted plaintiff leave to file a Second Amended Complaint "detailing his claims under 42 U.S.C. § 1981." Plaintiff subsequently filed his Second Amended Complaint on December 28, 1999, his third attempt, alleging discrimination based on "race, wrongful discharge and conflict of interest." Second Amended Complaint, ¶ 4. The only defendant named in the complaint is the Department of Juvenile Justice.
Order dated October 28, 1999 at 1.
Id. at 3.
Plaintiff, a former employee of the Department of Juvenile Justice, was terminated from his employment by letter dated May 1, 1996 following a disciplinary hearing. The termination letter by the Review Officer found that the evidence presented at the March 5, 1996 hearing established that plaintiff had indeed violated the two charges brought against him. Declaration of Leonard Kaplan, Exhibit A. The letter further recommended that plaintiff be terminated from his employment and that he forfeit his leave balances. Plaintiff was present at the hearing and was represented by the Local 1457 Union President. Second Amended Complaint ¶ 7. Plaintiff alleges, however, that the Review Officer, in fact, "ruled in [his] favor, putting [him] on 1 year probation. The Agency was to do a stipulation to that effect." Id Plaintiff claims that he was to receive probation by a signed stipulation from the Department of Juvenile Justice, but instead received a letter terminating his employment and revoking his leave balances. Id Plaintiff alleges that the letter from the Review Officer was forged and that the Review Officer acknowledged that his termination was not what she had ordered. Id.
Although the disciplinary charges against plaintiff were not fully articulated by either the plaintiff or defendant, plaintiff makes reference to attending two rehabilitation programs, Second Amended Complaint ¶ 7, and having "been on suspension for nine months before being brought up on charges by the Agency." Plaintiff's Motion of Opposition ¶ 5. Plaintiff further alleges that: "people with more serious charges than [him] had been brought up on charges (i.e.) Hispanic, and retained by the Agency;" that an unnamed white employee with felony charges was allowed to resign and retain his leave balances; and that another unnamed Hispanic employee who was "caught dirty" a second time remains an employee. Second Amended Complaint ¶ 7. Plaintiff also charges that he was denied unemployment insurance because defendant falsely stated that his termination was job related, and that other unspecified people who were terminated received their accrued leave balance plus unemployment insurance. Id.
Defendant argues that plaintiff's § 1981 claim should be dismissed for several reasons. First, defendant contends that plaintiff's claim is time-barred. Second, defendant maintains that plaintiff's § 1981 claim fails to make sufficient allegations to support the inference of racially discriminatory intent. Lastly, as the defendant is a municipality, defendant argues that plaintiff's claims do not sufficiently allege that a custom or policy of the Department of Juvenile Justice deprived plaintiff of his constitutional rights.
DISCUSSION
I. Standard for Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint where the complaint "fail[s] . . . to state a claim upon which relief can be granted[.]" FED. R. Civ. P. 12(b)(6). In reviewing a motion to dismiss, this Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). Here, a motion to dismiss will only be granted if the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Citibank. N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992). A court may look at the complaint and any documents attached to, or incorporated by reference in, the complaint. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).
Furthermore, a pro se filing such as the handwritten complaint at issue here is to be liberally construed. "[A] pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers, and can only be dismissed for failure to state a claim 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.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (citations omitted).
II. Section 1981 Claim
Section 1981 provides in part, that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The phrase "make and enforce contracts" is intended to be broad and may include, but is not limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation and hiring. 42 U.S.C. § 1981(b). Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 692 (2d Cir. 1998) (discussing legislative history of 1991 amendment to § 1981).
In order to state a claim under § 1981, a plaintiff must allege: (1) that he is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.). See Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Odom v. Columbia University, 906 F. Supp. 188, 194 (S.D.N.Y. 1995).
Defendant argues that plaintiff's claims must be dismissed because he fails to sufficiently allege the defendant's intent to discriminate on the basis of race. This Court agrees. A plaintiff alleging racial discrimination under § 1981 must do more than assert conclusory allegations. See Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994); Albert v. Caravano, 851 F.2d 561, 572-73 (2d Cir. 1988). "[A] complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6)." Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). Even construed liberally, plaintiff's Second Amended Complaint provides no allegations sufficient to support his claim of discriminatory termination. Plaintiff's allegations that two Hispanic employees were not discharged, and that a white employee with felony charges was allowed to resign while retaining his leave balances, are insufficient to allege discriminatory intent. Although he states the race of each employee, he does not allege that they were similarly situated to him, nor does he allege facts to support a conclusion that the disparate treatment he received was based on his race. Plaintiff does not dispute that his termination was for cause after a full hearing. He only argues that probation rather than termination was appropriate. The complaint is further devoid of any allegation that other blacks were not terminated or whether there were any whites or Hispanics who were terminated. Furthermore, in his Motion of Opposition, plaintiff does not claim that the "other employees given both the option of Resigning or Retiring" were given that option because of their race. Plaintiff's Motion of Opposition, ¶ 4. Construed liberally, plaintiff's Second Amended Complaint lacks allegations sufficient to support a claim of racial discrimination under 42 U.S.C. § 1981.
Rather, the facts as pled by the plaintiff show that he had attended two rehabilitation programs and was suspended for nine months for unspecified related charges prior to his hearing. After his suspension, plaintiff was subsequently charged with other violations and was called to a hearing to answer to those charges. During that hearing, where he was present with his union president, plaintiff was found in violation of disciplinary charges, was terminated from his employment, and his leave balances were revoked.
Even if plaintiff had made allegations sufficient to state a claim under § 1981, plaintiff's claims would be dismissed under the standard set forth in Monell v. Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). In order to impose liability upon a municipality such as the Department of Juvenile Justice, a plaintiff must show that a policy or custom of the municipality caused the deprivation of his federal constitutional rights. Id Plaintiff makes no allegations that a policy, custom or practice of the Department of Juvenile Justice deprived him of a constitutional right. The plaintiff has not made allegations sufficient to state a violation under 42 U.S.C. § 1981. The Court therefore grants defendant's motion to dismiss.
Defendant also claims that plaintiffs § 1981 claim, which is subject to a three-year statute of limitations, should be dismissed as time-barred. See Wilson v. Fairchild Republic Co. Inc., 153 F.3d 733, 739 n. 5 (2d Cir. 1988) (citations omitted). Defendant submits a United States Postal Service Return Receipt signed by the plaintiff on May 2, 1996, presumably giving the plaintiff until May 2, 1999 to file suit. May 2, 1999, however, was a Sunday. Fed.R.Civ.P. 6(a) provides that "[t]he last day of the period so computed shall be included, unless it is . . . a Sunday . . . in which event the period runs until the end of the next day which is not one of the aforementioned days." Where in forma pauperis status has been granted, the date the pro se complaint is filed with the pro se office governs for statute of limitations purposes. See Toliver v. Sullivan Country, 841 F.2d 41, 42 (2d Cir. 1988). As Plaintiff filed his original complaint on Monday, May 3, 1999, this Court finds that plaintiffs suit is timely.
SO ORDERED.