Sawabini v. O'Connor Hospital et al

MOTION to Dismiss for Failure to State a Claim Pursuant to Rule 12

N.D.N.Y.November 2, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK LUTFALLAH T. SAWABINI, Plaintiff, -against- O’CONNOR HOSPITAL, et al. Defendants. NOTICE OF MOTION 15-cv-0692 (LEK/DEP) PLEASE TAKE NOTICE that upon the annexed declaration of Caroline Downey; the accompanying memorandum of law; and upon all prior proceedings, Defendants The New York State Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres, on December 16, 2016 at 9:30 a.m., or as soon thereafter as counsel can be heard, will make a motion before the Honorable Lawrence E. Kahn, at the United States District Court, Northern District of New York, Albany, New York, pursuant to Rules 12(c), of the Federal Rules of Civil Procedure, for an order dismissing all the claims against Defendants The New York State Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres together with such other or further relief as may be just. Case 3:15-cv-00692-LEK-DEP Document 82 Filed 11/02/16 Page 1 of 2 Dated: Albany, New York November 2, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants, The New York State Division of Human Rights, Caroline, Downey, Victor DeAmelia and Helen Torres The Capitol Albany, New York 12224-0341 By: s/ William A. Scott William A. Scott Assistant Attorney General, of Counsel Bar Roll No. 512434 Telephone: (518) 776-2255 Email: William.Scott@ag.ny.gov TO: Stephanie M. Caffera, Esq. (VIA ECF) Kimberly K. Harding, Esq. (VIA ECF) Christine D. Hanlon, Esq. (VIA ECF) Lutfallah Sawabini, pro se 11 Manatee Ave. Sidney, New York 13838 Case 3:15-cv-00692-LEK-DEP Document 82 Filed 11/02/16 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK LUTFALLAH T. SAWABINI, Plaintiff, -against- O’CONNOR HOSPITAL, et al. Defendants. 15-cv-0692 (LEK/DEP) MEMORANDUM OF LAW SUPPORTING DEFENDANTS THE NEW YORK STATE DIVISION OF HUMAN RIGHTS, CAROLINE DOWNEY, VICTOR DEAMELIA AND HELEN TORRES’ 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres The Capitol Albany, New York 12224-0341 William A. Scott Assistant Attorney General, of Counsel Bar Roll No. 512434 Telephone: (518) 776-2255 Fax: (518) 915-7740 (Not for service of papers) Date: November 2, 2016 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 1 of 13 Table of Contents Preliminary Statement ..................................................................................................................... 1 Statement of Facts ........................................................................................................................... 3 Argument ........................................................................................................................................ 4 I. Standard for a 12(c) Motion ................................................................................................ 4 II. There is no Cognizable Claim for a Violation of the Plaintiff’s Due Process Rights ... 5 A. No Valid Due Process Claim Exists as to the State Defendants ........................................ 5 B. The Plaintiff’s Claim Against the DHR is Barred by the Eleventh Amendment ............... 8 C. The Plaintiff’s Claim Against the Individual State Defendants is Barred by Qualified Immunity ................................................................................................................................. 8 III. The Plaintiff Has Failed to Properly Serve the State Defendants ................................ 9 Conclusion .................................................................................................................................... 10 2 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 2 of 13 Preliminary Statement This matter was initially commenced by the Plaintiff’s filing of a Complaint on or about June 8, 2015. [Dkt. 1]. A Report and Recommendation was issued, and ultimately adopted, suggesting that the Plaintiff’s Complaint be dismissed with leave to amend. [Dkt. 6 & 9]. Prior to the Court’s adoption of the Report and Recommendation the Plaintiff filed an Amended Complaint. [Dkt. 7]. As the Plaintiff had paid the required filing fee, the Court declined to review the Amended Complaint and directed that the Plaintiff effectuate proper service upon the named Defendants. [Dkt. 10]. The Plaintiff’s Amended Complaint names, inter alia, The New York State Division of Human Rights (“the DHR”), Caroline Downey (“Ms. Downey”), Victor DeAmelia (“Mr. DeAmelia”) and Helen Torres (“Ms. Torres”) (referred to collectively herein as “the State Defendants”) as defendants. [Dkt. 7 at pp. 10-11, 14].1 The State Defendants filed a Motion to dismiss the Amended Complaint on December 18, 2015. [Dkt. 23]. The State Defendants asserted that the Plaintiff had failed to properly obtain personal jurisdiction over the defendants and that the Plaintiff’s claims under New York’s Human Rights Law were barred by the election of remedies. The Court issued an initial order as to the question of service and permitted the Plaintiff to attempt to re-serve the DHR, Ms. Downey and Mr. DeAmelia. [Dkt. 69]. More particularly, the Court informed the Plaintiff that in order to effectuate proper service upon said Defendants he must: “serve the individual Defendants . . . by first-class mail with a copy of the Summons and Complaint together with two copies of a Statement of Service by mail and Acknowledgement of Receipt with a postage-paid return envelope addressed to Plaintiff. 1 As the numbering of the paragraphs in the Plaintiff’s Amended Complaint is highly irregular, reference is instead made to the page numbers assigned by the Court’s ECF system. 1 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 3 of 13 Plaintiff is further advised that serving the DHR by mail requires personal service on either an assistant attorney general or the attorney general.” [Dkt. 69 at pg. 53]. By way of this initial Decision and Order the Court reserved on the sufficiency of the Plaintiff’s claims under the HRL, and afforded the Plaintiff an opportunity to supplement his claim so as to avoid dismissal. Though the Plaintiff has made no allegation that his due process rights were violated by any of the State Defendants, the Court also held that the Plaintiff’s complaint set forth an alleged violation of his 14th Amendment due process rights. [Dkt. 69 at p. 43-44]. In light of the Plaintiff’s failure to substantiate his claims under the HRL the Court issued a final Order dismissing the Plaintiff’s claims under the HRL. [Dkt. 75]. As a result of the Court’s Orders the only claim currently pending against the State Defendants is an allegation that the Plaintiff’s due process rights have been violated. The State Defendants now move for judgment on the pleadings pursuant to Rule 12(c), with respect to that residual claim. 2 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 4 of 13 Statement of Facts The DHR is an agency of the State of New York charged with enforcing New York’s Human Rights Law. N.Y. Exec. Law §293, 295. Ms. Downey is the DHR’s general counsel and ethics officer, Mr. DeAmelia is the director of the DHR’s Binghamton office and Ms. Torres is an investigator employed by the DHR. The Court interpreted the Plaintiff’s initial Complaint to be a claim that Defendants O’Connor Hospital (“O’Connor”) and Edward McGrath (“McGrath”) violated Title VII of the Civil Rights Act of 1964, by failing to hire the Plaintiff. [Dkt. 6 at pg. 2]. The Plaintiff now appears to allege that the State Defendants somehow improperly investigated and adjudicated the Plaintiff’s dispute with O’Connor and McGrath. [Dkt. 7 at pp. 21-22, 27-28, 45, 47-50]. The Court has extrapolated these claims into an allegation that the Plaintiff’s due process rights have been violated by the State Defendants. [Dkt. 69 at pg. 43-44]. As set forth in the accompanying declaration of Caroline Downey, the Plaintiff had filed two complaints with the DHR. On March 14, 2014, the Plaintiff filed a complaint charging Mary Imogene Bassett Hospital with an unlawful discriminatory practice relating to public accommodations. On August 28, 2014, the Plaintiff filed a complaint charging O’Connor Hospital with an unlawful discriminatory practice relating to employment. Both complaints were dismissed after investigation due to a lack of probable cause. In both of the DHR’s determinations the Plaintiff was informed of his right to seek judicial review in the New York State Supreme Court in the county where the alleged discriminatory practice took place. As set forth in Ms. Downey’s prior affidavit and as restated in her current submission, the Plaintiff sought judicial review of those determinations by commencing Article 78 proceedings in the Supreme Court for the County of Otsego and the 3 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 5 of 13 Supreme Court of the County of Delaware, respectively. Both Courts upheld the DHR’s determinations. Though the Plaintiff has appealed both determinations to the Appellate Division Third Department, the Plaintiff has yet to perfect his appeal. Though the Plaintiff, who is not proceeding in forma pauperis, has been instructed on how to effectuate service on the DHR, Mr. DeAmelia and Ms. Downey, he has yet to properly serve those defendants. As set forth below, the Plaintiff cannot set forth a violation of his due process rights, nor has he properly obtained personal jurisdiction over the State Defendants. As such, his Amended Complaint should be dismissed as against the State Defendants. Argument I. Standard for a 12(c) Motion The same standard of review applicable to a Rule 12(b)(6) motion is applied to a motion made pursuant to Rule 12(c). See e.g. U.S. v. East River Housing Corp., 90 F.Supp.3d 118, 154- 55 (S.D.N.Y. 2015). To avoid dismissal pursuant to Rule 12(b)(6), a complaint must contain sufficient factual content to demonstrate that entitlement to relief is plausible, “and a formulaic recitation of the elements of a cause of action will not do.” Bell v. Twombly, 550 U.S. 544, 555 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff’s complaint must set forth “more than a sheer possibility that a defendant has acted unlawfully.” Id. The court need not accept legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. The Second Circuit has also upheld the dismissal of a complaint that “contained a labyrinthian prolixity of unrelated and vituperative charges that defied 4 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 6 of 13 comprehension.” Prezzi v. Schelter, 469 F.2d 691, 691 (2d Cir. 1972). Even when the Plaintiff’s rambling and incoherent allegations are accepted as true, as set forth below, the allegations are insufficient to set forth a cause of action against the State Defendants, and the Plaintiff’s Complaint must be dismissed. II. There is no Cognizable Claim for a Violation of the Plaintiff’s Due Process Rights The sole remaining claim against the State Defendants is an allegation that the Plaintiff’s due process rights were violated. [Dkt. 69 at 43-44]. The Plaintiff cannot set forth a valid due process violation for three reasons: (1) The United States Supreme Court has previously determined that New York’s procedures for resolving complaints of alleged violations of the Human Rights Law provide complainants with all the due process required under law; (2) The State Defendants are protected by Eleventh Amendment immunity, and; (3) The State Defendants are protected by qualified immunity. For these reasons, and as set forth herein, the Plaintiff’s Complaint must be dismissed. A. No Valid Due Process Claim Exists as to the State Defendants The Fourteenth Amendment protects only “property claims to which an individual has a ‘legitimate claim of entitlement.’” N.Y. State NOW v. Pataki, 261 F.3d 156, 164 (2d Cir. 2001) (citing Board of Regents v. Roth, 408 U.S. 564, 577 [1972]). The only constitutionally protected interest in a claim alleging a violation of the NYHRL is the plaintiff’s right to assert the cause of action itself. Id. The Plaintiff in the current matter does not allege that he was barred from presenting his NYHRL claims by the State Defendants. Instead he alleges, at best, that the DHR’s investigation was insufficient and that its determinations were arbitrary and capricious. The United State Supreme Court has held that the DHR’s procedures provide 5 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 7 of 13 complainants with all required due process. Kremer v. Chem. Constr., 456 U.S. 461, 483-484 (1982). In Kremer the Supreme Court stated: We have no hesitation in concluding that this panoply of procedures, complemented by administrative as well as judicial review, is sufficient under the Due Process Clause. Only where the evidence submitted by the claimant fails, as a matter of law, to reveal any merit to the complaint may the NYHRD2 make a determination of no probable cause without holding a hearing. And before that determination may be reached, New York requires the NYHRD to make a full investigation, wherein the complainant has full opportunity to present his evidence, under oath if he so requests. Id. In those instances where a plaintiff takes issue with the sufficiency of the DHR’s investigation or ultimate determination, the Supreme Court further held that the ability to commence a subsequent proceeding in the Appellate Division was more than sufficient to protect a plaintiff’s due process rights. Id. at 484. “[J]udicial review in the Appellate Division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled and that the NYHRD’s determination was not arbitrary and capricious.” Id. In dismissing a plaintiff’s claims of inadequate investigation, the Eastern District has held that “[a] due process claim is not stated if there is an adequate postdeprivation state remedy for the alleged loss. The Supreme Court has expressly recognized that in cases involving complaints to the State Division of Human Rights, ‘the Appellate Division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled’ and that the State Division's ‘determination was not arbitrary and capricious.’” Devany v. County of Nassau3, 1989 U.S. Dist. LEXIS 2000, *18-19 (E.D.N.Y. 1989) (citing Kremer, 456 U.S. at 484) (internal citations omitted). 6 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 8 of 13 The courts have repeatedly held that the DHR’s procedures, which are accompanied by a right of review before the New York State Supreme Court and the Appellate Division, are more than sufficient to protect a plaintiff’s due process rights. See Rosu v. City of New York, 742 F.3d 523, 527 (2d Cir. 2014); Yan Yam Koo v. Dep’t of Buildings, 218 Fed.Appx. 97, 98-99 (2d Cir. 2001); see also Barnes v. New York State Division of Human Rights4, 2016 U.S. Dist. LEXIS 2396, *27-28 (S.D.N.Y. 2016). Accepting, for the purpose of the current motion, the Plaintiff’s allegations that DHR’s investigations were wholly insufficient, and that Mr. DeAmelia’s decision was without substantial evidence, these claims are still insufficient to set forth a due process violation. The Plaintiff’s due process rights are protected by his ability to challenge the DHR’s actions and determination in the relevant Supreme Court. Indeed the Plaintiff has availed himself of this right and has even appealed the matter to the Appellate Division Third Department. As to Ms. Downey, it remains unclear what possible role the Plaintiff envisions her as having in this process and certainly has made no allegation that would lead one to believe that Ms. Downey has violated the Plaintiff’s due process rights. As the Plaintiff has failed to allege any personal involvement by Ms. Downey in the purported deprivation of his rights, the claim against her must be dismissed. See Alfaro Motors v. Ward, 814 F.2d 883, 886-67 (2d Cir. 1987). As noted by this Court, the Plaintiff’s allegations amount to nothing more than an allegation that the DHR’s determination was arbitrary and capricious. [Dkt. 69 at pg. 6]. This is an insufficient allegation to sustain a due process violation claim. As a matter of law, the Plaintiff has no cognizable cause of action for a due process deprivation. Accordingly, the Amended Complaint must be dismissed in its entirety as to the State Defendants. 2 The New York State Division of Human Rights. 3 A copy of this decision is attached hereto as Exhibit A. 7 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 9 of 13 B. The Plaintiff’s Claim Against the DHR is Barred by the Eleventh Amendment The Plaintiff’s due process claim is further barred by the Eleventh Amendment. See Baba v. Japan Travel, 111 F.3d 2, 5, (2d Cir. 1997). “Federal civil rights lawsuits against the NYSDHR are barred by the Eleventh Amendment.” McPherson v. Plaza Athenee5, 2012 U.S. Dist. LEXIS 127822, *18-19 (S.D.N.Y. 2012). Monetary damages are not available against the state, its agents or instrumentalities, including the DHR, in the context of a §1983 action.67 Barnes, 2016 U.S. Dist. LEXIS at *21-22 (holding that “plaintiff’s NYSHRL and Section 1983 claims against the NYSDHR are barred by the Eleventh Amendment”). As noted in this Court’s decision on the State Defendants’ prior motion, the only relief sought by the Plaintiff as to the State Defendants is an award of money damages, which the Plaintiff cannot recover in this matter. [Dkt. 69 at p. 10]. To the extent that the Plaintiff has alleged that the State Defendants have violated the Plaintiff’s civil rights, such a claim is barred by the Eleventh Amendment and must be dismissed. C. The Plaintiff’s Claim Against the Individual State Defendants is Barred by Qualified Immunity “A government actor performing a discretionary task is entitled to immunity from §1983 suits if his or her ‘action did not violate clearly established law.’" N.Y. State NOW, 261 F.3d at 165, (quoting Salim v. Proulx, 93 F.3d 86, 89 [2d Cir. 1996]). In order for a right to be clearly established the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an 4 A copy of this decision is attached hereto as Exhibit B. 5 A copy of this decision is attached hereto as Exhibit C. 6 The Plaintiff himself makes no reference to either due process or §1983 in his Complaint, but the Court’s decision in this matter appears to presume that any implied due process violations would arise under §1983. [Dkt. 29 at p. 43]. 8 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 10 of 13 official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (internal citations omitted). As set forth above, the only constitutionally protected right at issue in a claim such as the Plaintiff’s is the right to assert a claim of discrimination. N.Y. State NOW, 261 F.3d at 164. As the Plaintiff himself has made no particularized claim indicating that his constitutional rights were violated it is difficult to discern what “clearly established” right is at issue in this matter. Nevertheless, whether the Plaintiff’s complaint is read narrowly to claim that he has the clearly established right to an investigation of claims of discrimination or more broadly to assert a claim that he cannot be deprived of due process, neither allegation is sufficient to defeat the individual State Defendants’ right to qualified immunity. None of the alleged actions by Mr. DeAmelia, Ms. Downey or Ms. Torres, violated clearly established law. To the contrary, the law is clear that neither an insufficient investigation nor an erroneous determination of a lack of probable cause, violate the Plaintiff’s constitutional rights. As such, the individual State Defendants’ are entitled to qualified immunity and the claims against them must be dismissed. III. The Plaintiff Has Failed to Properly Serve the State Defendants Following the State Defendants’ Motion to Dismiss the Plaintiff was directed by the Court to properly serve the DHR, Mr. DeAmelia and Ms. Downey: “by first-class mail with a copy of the Summons and Complaint together with two copies of a Statement of Service by mail and Acknowledgement of Receipt with a postage-paid return envelope addressed to Plaintiff. 9 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 11 of 13 Plaintiff is further advised that serving the DHR by mail requires personal service on either an assistant attorney general or the attorney general.” [Dkt. 69 at pg. 53]. The Plaintiff has failed to properly serve the DHR, Mr. DeAmelia or Ms. Downey, despite the Court’s clear direction in this matter. The Plaintiff has filed what he purports to be proof of service on the State Defendants. [Dkt. 77]. These papers confirm that the Plaintiff has not properly served the State Defendants. Mr. DeAmelia and Ms. Downey have only been mailed copies of the complaint without an acknowledgment of service. [Dkt. 77 at pp. 2-3; Dkt. 77 Attachment 3; Dkt. 77 Attachment 5]. Similarly, the DHR and the Office of the Attorney General have been mailed copies of the complaint, but the Attorney General’s Office has not been personally served as directed by the Court. [Dkt. 77 Attachment 1; Dkt. 77 Attachment 2; Dkt. 77 Attachment 6]. With his own submissions the Plaintiff has demonstrated that he has not provided the individual defendants with an Acknowledgement of Receipt, nor has he personally served the Office of the Attorney General so as to effectuate service upon the DHR. By this Court’s September 8, 2016, Order the Plaintiff was given forty-five days from the issuance of summonses as to the DHR, Mr. DeAmelia and Ms. Downey, to properly complete service. [Dkt. 69 at pg. 53]. The Clerk of the Court reissued the relevant summonses on September 9, 2016, which gave the Plaintiff until October 24, 2016, to properly serve the referenced State Defendants. [Dkt. 70]. As the Plaintiff has again failed to properly serve the DHR, Ms. Downey or Mr. DeAmelia, the claims against those defendants must be dismissed. Conclusion 10 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 12 of 13 The Plaintiff’s Complaint fails to set forth a valid claim for a violation of the Plaintiff’s due process rights and he has failed to properly serve the DHR, Ms. Downey or Mr. DeAmelia. Furthermore, his allegations fail to establish any personal involvement on the part of Ms. Downey. Additionally, that claim is precluded by Eleventh Amendment and qualified immunity. For the reasons stated above, the remaining due process claim against Defendants the New York State Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres must be dismissed. Dated: Albany, New York November 2, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants the New York State Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres The Capitol Albany, New York 12224-0341 By: s/ William A. Scott William A. Scott Assistant Attorney General, of Counsel Bar Roll No. 512434 Telephone: (518) 776-2255 Email: William.Scott@ag.ny.gov TO: Stephanie M. Caffera, Esq. (VIA ECF) Kimberly K. Harding, Esq. (VIA ECF) Christine D. Hanlon, Esq. (VIA ECF) Lutfallah Sawabini, pro se 11 Manatee Ave. Sidney, New York 13838 11 Case 3:15-cv-00692-LEK-DEP Document 82-1 Filed 11/02/16 Page 13 of 13 | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2016 LexisNexis WILLIAM SCOTT User Name: WILLIAM SCOTT Date and Time: Nov 02, 2016 12:55 Job Number: 39181708 Document (1) 1. Devany v. County of Nassau, 1989 U.S. Dist. LEXIS 2000 Client/Matter: -None- Search Terms: "division of human rights" /s "due process" Search Type: Terms and Connectors Narrowed by: Content Type Narrowed by Cases Court: 2nd Circuit Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 1 of 12 WILLIAM SCOTT Last updated September 13, 2016 05:00:15 pm GMT Devany v. County of Nassau United States District Court for the Eastern District of New York February 16, 1989, Decided and Filed No. CV 88-0657(RR) Reporter 1989 U.S. Dist. LEXIS 2000; 50 Empl. Prac. Dec. (CCH) P38,989 , Plaintiff, v. COUNTY OF NASSAU; DOUGLAS H. WHITE, Commissioner of the New York State Division of Human Rights; JAMES D. RICE; LUMELL DAWSON; ; WILLIAM G. LEWIS; COMMISSION ON HUMAN RIGHTS; KATHARINE BEALE; THOMAS CURRY; JAMES DENON; ROBERT DePOTO; W. DAVID HARMON; GLORIA HINDES; PHYLLIS HYDE; SYD MANDELBAUM; SALVATORE MIGLIO; ANTONIO NADAL; H. DAVID PARKER; ANTONIO PATINO; JACQUELINE RICHMAN; LOUSETTE TURNER; ELAINE ADAMS; ARTHUR MACKEY; ADELE COHEN; THERESA MURPHY; SYLVIA MARCUS; THOMAS GULOTTA; FRANCIS PURCELL; NASSAU COUNTY BOARD OF SUPERVISORS; JOSEPH N. MONDELLO; GREGORY P. PETERSON; JOHN B. KIERNAN; ANGELO A. DELIGATTI; DONALD P. DeRIGGI; BRUCE NYMAN; ARTHUR RANDALL; ; EDWARD G. McCABE; ROBERT O. BOYHAN; THOMAS G. JOHNSON; JAMES FOSTER; ROBERT R. SHAW; BARBARA L. CUYJET; JAMES F. McNAMARA; WERNER H. KRAMARSKY; AND "DOE" 45 to 1000, Defendants Core Terms human rights, termination, conspiracy, complains, rights, statute of limitations, tolled, civil rights, deprive, merits, affirmative action program, termination decision, civil rights action, personal injury, disciplinary, limitations, occurring, immunity, charges Case Summary Procedural Posture Defendants, government agencies, officials, former employer, and hearing officer, filed a motion to dismiss the claims of plaintiff former employee in an action regarding his termination, which he alleged was discriminatory in violation of 42 U.S.C.S. §§ 1981, 1982, 1983, 1985, 1986, 1988. Overview The employee refused to apply affirmative action in his public employment position on the grounds that such activity was illegal. The employer terminated the employee. The employee lost his administrative hearing and appealed through the state courts. After he lost in the state courts, the employee brought claims under §§ 1981, 1982, 1983, 1985, 1986, 1988 on the grounds that he was discriminated against for his refusal to discriminate through affirmative action. The court dismissed the action. The claims under §§ 1981, 1983, 1986 were dismissed because they were time-barred. N.Y. Exec. Law § 297(9) (1982) allowed a party to bring a discrimination claim either administratively or judicially. Because the employee chose the administrative path, the statute of limitations was not tolled while he pursued his claims through the state courts. The court dismissed the other claims because the employee failed to state a claim. There was procedural due process because the employee's claim went through the judicial system, even if the hearing officer deprived the employee of a fair hearing. The conspiracy claims failed to state a conspiracy with requisite particularity. Outcome The court ruled for the employer and hearing officer and dismissed the employee's action for discrimination regarding his termination. LexisNexis® Headnotes Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > Parties > Pro Se Litigants > General Overview Civil Procedure > Parties > Pro Se Litigants > Pleading Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 2 of 12 Page 2 of 11 WILLIAM SCOTT Standards HN1 In considering a motion to dismiss, a court must accept all facts alleged in the complaint as true. Dismissal is appropriate only if it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Moreover, where an action is brought pro se, the court is obliged to construe plaintiff's claims liberally. Civil Rights Law > General Overview Civil Rights Law > Protection of Rights > Contractual Relations & Housing > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Protected Classes Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Remedies Labor & Employment Law > Discrimination > Public Contracts > General Overview Labor & Employment Law > Wrongful Termination > Remedies > General Overview HN2 42 U.S.C.S. § 1981 prohibits racial discrimination in the making and enforcing of contracts and the pursuit of legal remedies. Civil Rights Law > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > Protected Rights Labor & Employment Law > Affirmative Action > General Overview Labor & Employment Law > Affirmative Action > Discrimination Labor & Employment Law > ... > Racial Discrimination > Remedies > General Overview HN3 42 U.S.C.S. § 1982 prohibits race discrimination in the conveyance and use of real or personal property. Civil Rights Law > ... > Elements > Color of State Law > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Business & Corporate Compliance > ... > Labor & Employment Law > Affirmative Action > Court & Government Imposed Plans HN4 42 U.S.C.S. § 1983 prohibits any deprivation of constitutional or legal rights under color of state law. Constitutional Law > Equal Protection > Nature & Scope of Protection Criminal Law & Procedure > ... > Inchoate Crimes > Conspiracy > General Overview Business & Corporate Compliance > ... > Labor & Employment Law > Affirmative Action > Court & Government Imposed Plans HN5 42 U.S.C.S. § 1985(3) prohibits conspiracies to deprive another of the equal protection of the laws. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Knowing Nonprevention Constitutional Law > Equal Protection > Nature & Scope of Protection Criminal Law & Procedure > ... > Inchoate Crimes > Conspiracy > General Overview HN6 42 U.S.C.S. § 1986 creates a cause of action against anyone who, knowing that equal protection is about to be denied as a result of conspiratorial action, and having the power to prevent such wrong, fails to act. Civil Rights Law > ... > Procedural Matters > Costs & Attorney Fees > General Overview Civil Rights Law > ... > Procedural Matters > Costs & Attorney Fees > Statutory Attorney Fee Awards HN7 42 U.S.C.S. § 1988 allows for the recovery of costs and attorney's fees by successful civil rights litigants. Administrative Law > Judicial Review > Reviewability > Exhaustion of Remedies Civil Procedure > ... > Justiciability > Exhaustion of Remedies > General Overview Civil Procedure > ... > Justiciability > Exhaustion of Remedies > Administrative Remedies Labor & Employment Law > Affirmative Action > General Overview Labor & Employment Law > Discrimination > Gender & Sex 1989 U.S. Dist. LEXIS 2000, *2000 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 3 of 12 Page 3 of 11 WILLIAM SCOTT Discrimination > EEOC & State Actions Labor & Employment Law > Discrimination > Gender & Sex Discrimination > Exhaustion of Remedies Business & Corporate Compliance > ... > Discrimination > National Origin Discrimination > Enforcement Business & Corporate Compliance > ... > Discrimination > Racial Discrimination > Enforcement Labor & Employment Law > Discrimination > Racial Discrimination > Exhaustion of Remedies Business & Corporate Compliance > ... > Discrimination > Religious Discrimination > Enforcement Labor & Employment Law > Discrimination > Religious Discrimination > Exhaustion of Remedies Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview Labor & Employment Law > ... > US Equal Employment Opportunity Commission > Civil Actions > Jurisdiction Labor & Employment Law > ... > Civil Actions > Time Limitations > General Overview HN8 42 U.S.C.S. § 2000e-z protects against discrimination in employment based on race, color, religion, sex or national origin. It does, however, require exhaustion of detailed administrative remedies as a prerequisite to filing federal suit, including the filing of a complaint with the Equal Employment Opportunity Commission. 42 U.S.C.S. § 2000e-5; 29 C.F.R. § 1613 (1987). Civil Rights Law > General Overview Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Knowing Nonprevention Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations HN9 42 U.S.C.S. § 1986 expressly provides a one-year statute of limitations. Civil Rights Law > General Overview Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations Torts > Procedural Matters > Statute of Limitations > General Overview HN10 The proper statute of limitations for a federal civil rights action pursuant to 42 U.S.C.S. §§ 1981, 1983 derives from the forum state personal injury statute of limitations. Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations HN11 In New York, the applicable personal injury statute of limitations is three years. N.Y. C.P.L.R. 214(5) (Supp. 1986). Civil Procedure > ... > Statute of Limitations > Tolling of Statute of Limitations > General Overview Civil Procedure > ... > Statute of Limitations > Tolling of Statute of Limitations > Arbitration Civil Rights Law > General Overview Governments > Legislation > Statute of Limitations > General Overview Labor & Employment Law > ... > Title VII Discrimination > Statute of Limitations > Waiver HN12 The pursuit of alternative administrative relief does not, ordinarily, toll the statute of limitations for a federal civil rights action. Civil Procedure > ... > Statute of Limitations > Tolling of Statute of Limitations > Pendency Civil Rights Law > General Overview Governments > Legislation > Statute of Limitations > General Overview HN13 N.Y. Exec. Law § 297(9) (1982) requires a party alleging discrimination to elect between presenting his claim for judicial or agency review. Thus, there is an expectation that, if a party opts for agency review, there will never be any court proceedings in connection with the claim. Section 297(9) does provide a very limited exception if a party opts for agency review and his complaint is dismissed on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed. Civil Procedure > ... > Jurisdiction > Jurisdictional Sources > General Overview Civil Procedure > ... > Jurisdiction > Jurisdictional Sources > Statutory Sources 1989 U.S. Dist. LEXIS 2000, *2000 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 4 of 12 Page 4 of 11 WILLIAM SCOTT Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Tolling HN14 N.Y. Exec. Law § 297(9) cannot preclude a claimant from bringing a federal action in federal court. A state statute cannot limit the jurisdiction of federal courts. On the other hand, it is within a state's power to decide that it will not allow use of its own limited administrative resources by those who are elsewhere seeking resolution of their discrimination claims, and certainly nothing requires it to toll statutes of limitations during this period for individuals who receive administrative decisions on the merits. Administrative Law > Agency Adjudication > Hearings > General Overview Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Constitutional Law > ... > Fundamental Rights > Procedural Due Process > General Overview Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection HN15 The panoply of procedures (available to complainants before New York's State Division of Human Rights) complemented by administrative as well as judicial review, is sufficient under the Due Process Clause. Civil Procedure > Judgments > Preclusion of Judgments > General Overview Civil Procedure > ... > Preclusion of Judgments > Estoppel > General Overview Civil Procedure > ... > Preclusion of Judgments > Estoppel > Collateral Estoppel Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection HN16 A due process claim is not stated if there is an adequate postdeprivation state remedy for the alleged loss. Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Standard of Review HN17 In cases involving complaints to the state division of human rights, the appellate division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled and that the state division's determination was not arbitrary and capricious. Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review Civil Rights Law > General Overview HN18 A civil rights claim is not a means by which federal district courts sit in appellate review of the decisions of state courts. Civil Rights Law > General Overview Criminal Law & Procedure > ... > Inchoate Crimes > Conspiracy > General Overview HN19 A civil rights conspiracy is not stated by simply reciting the history of one's experiences in the state administrative and judicial systems and concluding with a general allegation that everyone who participated in the process leading to a decision adverse to plaintiff is a member of a conspiracy. Counsel: [*1] EUGENE PATRICK DEVANY, Mayfair Professional Building, Merrick, New York, Plaintiff Pro Se EDWARD T. O'BRIEN, COUNTY ATTORNEY OF NASSAU, Nassau County Executive Building, Mineola, New York, By: Jack Olchin, Esq., Deputy County Attorney, Defendant Pro Se and for all County of Nassau defendants HONORABLE ROBERT ABRAMS, ATTORNEY GENERAL FOR THE STATE OF NEW YORK, New York, New York, By: Nancy Lerner, Esq., Attorney for all State defendants Opinion by: RAGGI Opinion MEMORANDUM and ORDER REENA RAGGI, UNITED STATES DISTRICT JUDGE Plaintiff, Eugene Patrick Devany, a white male, proceeds pro se against Nassau County, the Nassau County Board of Supervisors, the Nassau County Commission of Human Rights, Douglas H. White, Commissioner of the New York State Division of Human Rights and 996 other named and unnamed individuals associated with the institutional defendants, for alleged 1989 U.S. Dist. LEXIS 2000, *2000 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 5 of 12 Page 5 of 11 WILLIAM SCOTT violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988 stemming from his employment with and ultimate termination from employment with the Nassau County Commission on Human Rights. All defendants move to dismiss plaintiff's complaint for failure to state a claim. Fed. R. Civ. p 12(b) (6). HN1 In considering a motion [*2] to dismiss, the court must accept all facts alleged in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Ad-Hoc Comm. of the Baruch Black & Hispanic Ass'n v Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir. 1988) (quoting Conley v Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted)). Moreover, where, as here, an action is brought pro se, the court is obliged to construe plaintiff's claims liberally. 1 For the reasons stated herein, the court grants the motion to dismiss. Factual Background Devany's civil service employment with the Nassau County Commission on Human Rights began in April 1972 when he was hired as a Human Relations Aide. In February 1975, he was promoted to Human Rights Information Program Supervisor, a position abolished in 1978 by the [*3] County Board of Supervisors. Thereafter, he reverted to his aide position for some months, but worked out of title performing public relations duties. In 1979, Devany was assigned new duties in the Commission's Job Development Center. These included interviewing prospective employees and matching them with available job opportunities in the private sector. The Center affirmatively sought to assist members of minority groups or females in obtaining employment. Toward this end, job applicants were required to provide information as to race, gender and age. These factors played a role in job placement. Plaintiff objected to a county agency's consideration of such factors as violative of federal, state and local law. He particularly objected to performing duties that furthered these 1 For this reason, the court considers the detailed statement of facts attached to plaintiff's response papers as facts that "could be proved." objectives. As a result, he alleges he was relegated to clerical responsibilities and discriminated against in the terms, conditions and privileges of his employment. On October 4, 1979, Devany filed a complaint with the New York State Division of Human Rights protesting the affirmative action policies of the Job Development Center and his own adverse treatment. The State Division began its administrative [*4] review in November 1979. 2 In February 1980, it proposed a conciliation agreement, which plaintiff rejected on March 4, 1980, having, the previous day, commenced an Article 78 proceeding in state court complaining of being given work assignments out of his job title. 3 This Article 78 proceeding was dismissed by the Nassau County Supreme Court in August 1980. On April 11, 1980, Devany was suspended from employment and served with charges of alleged misconduct pursuant to § 75 of the New York Civil Service Law. (McKinney 1983 & Supp. 1988). He claims that thereafter defendants -- without particularizing [*5] which ones -- disseminated false information about him to injure his good name and reputation. Over a five-day period in April and May 1980, a civil service disciplinary hearing was held before defendant Arthur Randall. Devany was found guilty of seven of the fourteen charges brought against him and Randall recommended his dismissal to defendant James D. Rice, the Executive Director of the County Commission on Human Rights. Plaintiff complains that he was not given a full and fair opportunity to be heard at this proceeding since Randall assumed the lawfulness of the Job Development Center's affirmative action program. On May 13, 1980, Devany was dismissed from his employment by order of defendant Rice. In July 1980, Devany both amended his complaint to the State Division on Human Rights and instituted a second Article 78 proceeding to challenge his termination. The latter proceeding was successful insofar as the 2 In January 1980, Nassau County received Dispensation # 543 from the State Division allowing it to operate its affirmative action program, which otherwise would have conflicted with the Human Rights Law. See Exec. L. § 296(12) (McKinney 1982) (authorizing the State Division to grant dispensations for programs that seek to increase minority employment for groups with historically "disproportionately high" state-wide unemployment rates in relation to the general population). 3 Plaintiff would reject a second conciliation agreement proposed by the State Division in May 1980. 1989 U.S. Dist. LEXIS 2000, *1 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 6 of 12 Page 6 of 11 WILLIAM SCOTT Appellate Division, Second Department, in October 1981, annulled Devany's termination, finding that Commissioner Rice's involvement in the institution of the charges against Devany precluded him from making the final termination decision. Accordingly, it ordered de novo [*6] review of the hearing record by a different commissioner. Devany v. Rice 84 A.D.2d 565, 443 N.Y.S.2d 263 (2d Dep't 1981). On January 4, 1982, defendant William G. Lewis, former Assistant Director of the County Commission on Human Rights, conducted a de novo review of the charges against Devany and ordered dismissal as of the original date, May 13, 1980. Shortly thereafter, plaintiff commenced two actions in Nassau County Supreme Court: the first, challenging the merits of Lewis' termination decision and seeking reinstatement; the second, challenging the effective date of termination, seeking back pay and benefits for the period May 13, 1980 to January 4, 1982. On June 3, 1982, Devany withdrew his Article 78 challenge to the merits of Lewis' decision. On November 18, 1982, he deceived a favorable ruling as to the effective date of his termination. Devany v. Rice, No. 12398/80[82] (Sup. Ct. 1982). 4 [*7] In December 1982, Devany amended his complains to the State Division of Human Rights to include a challenge to the Lewis termination decision. Although adjudication of his complains began in June 1983, no hearings were actually held, nor written arguments submitted, until 1985, at which time plaintiff was represented by retained counsel. On May 22, 1986, Administrative Law Judge Matthew Foner, not named as a defendant in this action, submitted recommended findings of fact and conclusions of law to defendant Commissioner White urging dismissal of Devany's complaint, In so doing, Commissioner White took the position that the issue before the State Division was not so much whether Nassau County was involved in any unlawful affirmative action practices, but whether good and sufficient reason existed for terminating plaintiff from his job, or whether the reasons stated were merely a 4 The record before the court is somewhat inconsistent as to whether Devany withdrew his court challenge to the merits of his termination before or after the favorable ruling on the effective date of any termination. The question is not relevant to determination of this motion. For purposes of this statement of facts, however, the court accepts the date set forth by plaintiff in his papers in opposition to the motion. subterruge for discrimination. In considering this question, White refused to hear Devany's challenge to the factual findings recommended by discipline hearing officer Randall and adopted by Commissioner Lewis. White held that any such review was a judicial function. Devany had voluntarily abandoned his judicial [*8] challenge to the merits of the County Commission's termination decision. Thus, in reaching his conclusions of law, White accepted the findings of fact made in the disciplinary hearing. White found that the Nassau County Commission on Human Rights had not attempted to coerce Devany to violate the law; that Devany was not discriminated against in his employment because he opposed affirmative action practices -- to the contrary, his work assignments were altered to accommodate his disagreement with certain procedures; and that his termination was neither in violation of state law nor in retaliation for his opposition to affirmative action practices. Plaintiff appealed the decision pursuant to N.Y. Exec. L. § 298. (McKinney Supp. 1988). On November 18, 1986, the Appellate Division affirmed dismissal, finding the State Commission's decision supported by "substantial evidence" and plaintiff's challenges thereto to be "without merit." Devany v. New York State Division of Human Rights, 135 A.D.2d 713, 714, 523 N.Y.S.2d 414, 415 (2d Dep't 1981). Efforts to obtain review by the New York Court of Appeals were unsuccessful. Devany v. New York State Division of Human Rights, 71 N.Y.2d [*9] 889, 527 N.Y.S.2d 770 (1988); Devany v. New York State Division of Human Rights, 72 N.Y.2d 804, 532 N.Y.S.2d 369 (1988). On March 2, 1988, plaintiff commenced this action, filing an amended complaint on July 25, 1988. Discussion I. The Nature of the Claims Although plaintiff invokes six federal civil rights statutes in support of his suit, his complaint does not separate the facts into separate causes of action. A liberal construction of the complaint, as well as review of the issues set forth in Appendix B to Plaintiff's Supplemental Memorandum of Law in opposition to the pending motion, leads the court to interpret the claims as follows: 1. HN2 42 U.S.C. § 1981 prohibits racial discrimination in the making and enforcing of contracts and the pursuit of legal remedies. The latter aspect of the statute does not appear relevant to this case. Instead, plaintiff's complaint seems to be that defendants, by 1989 U.S. Dist. LEXIS 2000, *5 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 7 of 12 Page 7 of 11 WILLIAM SCOTT discriminating against him in his work assignments and, ultimately, by terminating him, interfered with his right to contract for employment because he opposed affirmative action programs premised on race and gender. Moreover, plaintiff claims that the procedures followed in terminating [*10] him themselves constituted a breach of his employment contract. 2. HN3 42 U.S.C. § 1982 prohibits race discrimination in the conveyance and use of real or personal property. Plaintiff's complaint seems to be that defendants interfered with property rights he had in his civil service employment and in his good name and reputation because of his opposition to race and gender based affirmative action programs. Although at times plaintiff seems to be suggesting that he has a property interest in his complaint to the State Division of Human Rights, the court understands him to be complaining that he did not receive a fair hearing before the state, a due process claim more appropriately considered under § 1983. 3. HN4 42 U.S.C. § 1983 prohibits any deprivation of Constitutional or legal rights under color of state law. Plaintiff complains that the defendants, all acting under color of law, denied him his substantive due process right not to be fired for opposing an unlawful affirmative action program and his procedural due process right to a fair hearing before termination of employment and a fair hearing of his State human rights complaint. 4. HN5 42 U.S.C. § 1985(3) prohibits conspiracies to deprive [*11] another of the equal protection of the laws. Plaintiff apparently lumps all defendants into a single conspiracy aimed at depriving him of his right to retain county employment while opposing affirmative action programs he considers unlawful. 5. HN6 42 U.S.C. § 1986 creates a cause of action against anyone who, knowing that equal protection is about to be denied as a result of conspiratorial action, and having the power to prevent such wrong, fails to act. Plaintiff suggests that various of the public officials sued were in such a position vis-a-vis his own termination. 6. HN7 42 U.S.C. § 1988 allows for the recovery of costs and attorney's fees by successful civil rights litigants. 5 5 In papers filed in opposition to this motion, plaintiff refers to rights protected by Title VII. 42 U.S.C. § 2000e-z (1982). Although Devany does not invoke Title VII in either his original [*12] II. Statute of Limitations Without conceding the merit of any of plaintiff's claims, defendants challenge their timeliness. This court agrees that, in large part, the claims are time-barred. HN9 42 U.S.C. § 1986 expressly provides a one-year statute of limitations. plaintiff having commenced this suit on March 2, 1988, he can only be heard to complain of failures by defendants to prevent alleged civil rights deprivations occurring after March 2, 1987. Because plaintiff alleges no facts occurring after that date, any claims brought under this section must be dismissed. HN10 The proper statute of limitations for a federal civil rights action pursuant to § 1981 or § 1983 derives from the forum state personal injury statute of limitations. Goodman v. Lukens, 482 U.S. 656, , 107 S. Ct. 2617, 2621 (1987) (state personal injury statute of limitations properly controls § 1981 actions); Wilson v. Garcia, 471 U.S. 261 (1985) (same re: § 1983 actions). Although the Supreme Court has yet to decide the issue with respect to other civil rights causes of action, see Burnett v. Grattan, 468 U.S. 46, 48 n.11 (1984), the same logic that supported the choice of the personal injury statute [*13] for § 1981 and § 1983 actions would suggest its applicability in other civil rights actions as well. See Waters v. Wisconsin Steel Works of Int'l Harvester Co., 427 F.2d 476, 488 (7th Cir.) ("we see no difference between section 1981 and section 1982 for purposes of determining the appropriate statute of limitations. . ."), cert. denied, 400 U.S. 911 (1970); Jones v. Coughlin, 665 F. Supp. 1040, 1043 (S.D.N.Y. 1987) (state personal injury statute applied to § 1985 conspiracy claims). HN11 In New York, the applicable personal injury statute of limitations is three years. N.Y. C.P.L.R. § 214(5) (McKinney Supp. 1986); Okure v. Owens, 816 F.2d 45, 47 (2d Cir. 1987), aff'd, 1095 Ct. 573 (1989). Thus, plaintiff can only pursue claims arising after March or amended complaints, HN8 the statute does, of course, protect against discrimination in employment based on race, color, religion, sex or national origin. It does, however, require exhaustion of detailed administrative remedies as a prerequisite to filing federal suit, including the filing of a complaint with the Equal Employment Opportunity Commission. 42 U.S.C. § 2OOOe-5; 29 C.F.R. § 1613 (1987). Because plaintiff does not allege compliance with these requirements, this court does not at this time consider his claims as brought under Title VII. 1989 U.S. Dist. LEXIS 2000, *9 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 8 of 12 Page 8 of 11 WILLIAM SCOTT 2, 1985. The thrust of plaintiff's complaint concerns his employment with and termination from the Nassau County Commission of Human Rights, all of which was final by, at the latest, January 4, 1982, the date of Commissioner Lewis' second termination decision. To this extent, then, the court dismisses those claims that allege substantive and procedural violations in connection with either the terms of his employment or his [*14] termination therefrom. Plaintiff seeks to avoid this result by arguing that the filing of his complaint with the State Division of Human Rights in October 1979 tolled the statute of limitations HN12 The pursuit of alternative administrative relief does not, ordinarily, toll the statute of limitations for a federal civil rights action. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66 (1975) (statute of limitations for § 1981 action not tolled while plaintiff pursued Title VII administrative proceedings). Of course, in determining an issue as to tolling in a federal civil rights action, the court must look to applicable state law. Board of Regents v. Tomanio, 446 U.S. 478, 486-87 (1980). Plaintiff seeks to support his argument for tolling by citation to Pan American World Airways, Inc. v. New York State Human Rights Appeal Board, 61 N.Y.2d 542, 548-49, 475 N.Y.S.2d 256, 259 (1984). This case relies on HN13 N.Y. Exec. L. § 297(9) (McKinney 1982), which requires a party alleging discrimination to elect between presenting his claim for judicial or agency review. Thus, there is an expectation that, if a party opts for agency review, there will never be any court proceedings [*15] in connection with the claim. Section 297(9) does provide a very limited exception if a party opts for agency review and his complaint is dismissed on the grounds of administrative convenience, such person shall I maintain all rights to bring suit as if no complaint had been filed." In this particular circumstance, the New York Court of Appeals has held that the statute of limitations for filing suit will be deemed tolled during the time the matter was before the agency. Pan American World Airways Inc. v. New York State Human Rights Appeal Board, supra. Devany's complaint to the State Division of Human Rights, unlike that at issue in Pan American World Airways, was not dismissed for administrative convenience. He received an adverse decision from the state agency on the merits of his claim, a decision then affirmed by the Appellate Division. This court cannot say that, under such circumstances, where New York would not even recognize a right by Devany to proceed judicially on his claim, that it would toll any statute of limitations. Reaching this conclusion is somewhat complicated, however, by the fact that HN14 § 297(9) cannot preclude a claimant from bringing a federal action [*16] in federal court. See Kunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986). A state statute "cannot limit the jurisdiction . . . of the federal courts . . . ." Griffith v. Bank of New York, 147 F.2d 899, 904 (2d Cir.), cert. denied, 325 U.S. 874 (1945). On the other hand, it is within the state's power to decide that it will not allow use of its own limited administrative resources by those who are elsewhere seeking resolution of their discrimination claims, and certainly nothing requires it to toll statutes of limitations during this period for individuals who receive administrative decisions on the merits. Thus, this court concludes that Devany was always free to initiate a federal civil rights action in connection with the conduct here complained of. He was, however, obliged to commence suit within three years of any alleged discrimination. The fact that he risked dismissal of his State Division of Human Rights complaint if he did so does not require a finding that the state statute of limitations was tolled during the pendency of his administrative proceedings. III. Failure to State a Claim Since the only complained-of events [*17] occurring within three years of the commencement of this action relate to adjudication of plaintiff's State Division of Human Rights complaint, this court concludes that the most liberal reading of the complaint will only allow for recognition of two timely causes of action: a § 1983 claim that plaintiff was denied procedural due process in this adjudication, and a § 1985(3) claim that all defendants, including State Human Rights Commissioner White, were involved in a conspiracy to deprive plaintiff of equal protection of the law. Both claims must be dismissed. A. Procedural Due Process before the State Division In considering Devany's procedural challenge to the State Division's treatment of his complaint, this court notes that the Supreme Court has already held that HN15 the "panoply of procedures (available to complainants before New York's State Division of Human Rights), complemented by administrative as well 1989 U.S. Dist. LEXIS 2000, *13 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 9 of 12 Page 9 of 11 WILLIAM SCOTT as judicial review, is sufficient under the Due Process Clause." Kremer v. Chemical Construction Corp., 456 U.S. 461, 484 (1982). Thus, Devany cannot challenge the totality of New York's procedure for dealing with human rights complaints as constitutionally defective. [*18] At most, he can complain that he was denied constitutionally safeguarded rights because of the "random and unauthorized" acts of discrete state officials. See generally Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). Indeed, his complaint in this regard focuses on the conduct of Commissioner White, who is alleged to have ruled without giving Devany an "opportunity for a full and fair hearing," and "without making findings sufficient to the nature of the complaint and supported by the evidence and after improperly giving collateral estoppel effect to all findings in the prior disciplinary proceedings and without properly applying the law applicable to the complaint." Even if Commissioner White's conduct was as plaintiff alleges, 6 HN16 a due process claim is not stated if there is an adequate postdeprivation state remedy for the alleged loss. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987). The Supreme Court has expressly recognized that HN17 in cases 6 Defendants raise the serious question of whether Commissioner White, if he is being sued in his personal capacity, would be entitled to absolute immunity from any claim for damages stemming from his conduct in ruling on plaintiff's state human rights claim. See Butz v. Economou, 438 U.S. 478, 512-13 (1978) (absolute immunity applied to federal administrative law judges and hearing examiners). See also Stanley v. Indiana Civil Rights Commission, 557 F. Supp. 330 (N.D. Ind. 1983), aff'd, 740 F.2d 972 (7th Cir. 1984) (immunity for Indiana Civil Rights Commission). Accord Johnson v. Rhode Island Parole Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987) (immunity for parole board members for adjudicatory functions); Jones v. Coughlin, 665 F. Supp. at 1046 (same). Plaintiff seeks to avoid dismissal on this ground by arguing that he needs discovery to determine if White's allegedly constitutionally-deficient conduct was in fact taken in the course of performing judicial-like functions and whether he was acting within his jurisdiction. Certainly, nothing on the present record suggests the contrary. The court need not, however, address the issue of whether further discovery on the point is necessary to its resolution in light of other grounds for dismissal. Of course, if the suit against White is in his official capacity, the Eleventh Amendment would pose a serious bar to an action for damages. See Eng v. Coughlin, 858 F.2d 889, 894 (2d Cir. 1988) (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985)). involving complaints to the State Division of Human Rights, "the Appellate Division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled" and that the State [*19] Division's "determination was not arbitrary and capricious." Kremer v. Chemical Construction Corp., 456 U.S. at 484. [*20] Devany seeks to avoid the dismissal apparently mandated by Kremer by arguing that he was limited in his ability to challenge White's conduct on appeal by N.Y. Exec. L. § 298, which precludes consideration of objections not raised below absent extraordinary circumstances. Specifically, he complains that because White would not consider alleged deficiencies in the disciplinary hearing that led to Devany's dismissal, these matters could not be raised with the Appellate Division. Of course, if White should have addressed claims pertaining to the disciplinary proceeding, Devany was able to argue this error to the Appellate Division. If, on the other hand, such issues were not properly considered by the Human Rights Division, it is difficult to understand what procedure plaintiff claims he was denied. Plaintiff argues that, to the extent his challenge to the merits of his termination decision were properly raised in state court, he mistakenly thought that he could not maintain that action and his State Division complaint at the same time. See N.Y. Exec. L. § 297(9). Certainly no action by defendants compelled him to abandon his state judicial challenge to his termination. Thus, [*21] no civil rights claim is stated from this circumstance. B. Conspiracy In paragraph 20 of his amended complaint, Devany charges that: Defendants were and are conspirators, acting with malice and/or reckless disregard for Plaintiff's rights, engaged in a scheme and conspiracy designed and intended to deny and deprive Plaintiff of his rights under the Constitution and laws of the United States, including equal protection of the laws and equal privileges and immunities under the laws, and the charge of misconduct was a mere pretext to provide color for the discriminatory and adverse treatment of Plaintiff for exercising his lawful and constitutional right to oppose employment discrimination against white males and unlawful preferential treatment for blacks, women and other minorities. On its face, this charge suggests that the conspiracy 1989 U.S. Dist. LEXIS 2000, *17 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 10 of 12 Page 10 of 11 WILLIAM SCOTT had as its goal and was, in effect, completed, when Devany finally lost his job in 1982. Only if the subsequent actions of the State Division, particularly Commissioner White, are somehow seen to be part of this conspiracy would Devany possibly state a timely claim. Plaintiff's complaint does not plead such participation in the alleged conspiracy [*22] by Commissioner White with the requisite particularity. See Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981); White v. Frank, 680 F. Supp. 629, 639 (S.D.N.Y. 1988). At most, Devany alleges that Commissioner White was simply wrong in the decision he reached on plaintiff's complaint, that the scope of his review was inadequate, and that he did not afford him the requisite procedural safeguards. As noted, supra, he had already had recourse to the New York courts to raise these arguments. HN18 A civil rights claim is not a means by which federal district courts sit in appellate review of the decisions of state courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Moreover, HN19 a civil rights conspiracy is not stated by simply "reciting the history" of one's experiences in the state administrative and judicial systems and "concluding with a general allegation" that everyone who participated in the process leading to a decision adverse to plaintiff is a member of a conspiracy. See Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2d Cir., 1964); accord Ellentuck v. Klein, 570 F.2d 414, 426 (1979). Because the complaint states no facts from which a conspiracy [*23] between Commissioner White and the other defendants can reasonably be inferred, the court dismisses Devany's § 1985(3) claim. Although Devany proceeds pro se, he has already submitted one amended complaint, and detailed factual statements in his opposition papers, none of which supports the inference that there was a common agreement among Commissioner White and the other defendants to deprive plaintiff of civil rights. Thus, there is no reason not to grant dismissal with prejudice. Conclusion Insofar as plaintiff sues pursuant to § 1986 for events occurring before March 2, 1987, and insofar as he sues pursuant to other civil rights statutes for events occurring before March 2, 1985, the complaint is dismissed as untimely. In all other respects, the complaint is dismissed for failure to state a claim. 7 SO ORDERED. Dated: Brooklyn, New York February 16, 1989 7 As the court dismisses all claims as either untimely or failing to state a claim, there is no question plaintiff is not entitled to an award of attorney's fees under § 1988. 1989 U.S. Dist. LEXIS 2000, *21 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 11 of 12 Page 11 of 11 WILLIAM SCOTT End of Document 1989 U.S. Dist. LEXIS 2000, *23 Case 3:15-cv-00692-LEK-DEP Document 82-2 Filed 11/02/16 Page 12 of 12 | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2016 LexisNexis WILLIAM SCOTT User Name: WILLIAM SCOTT Date and Time: Nov 02, 2016 12:56 Job Number: 39181825 Document (1) 1. Barnes v. New York State Div. of Human Rights, 2016 U.S. Dist. LEXIS 2396 Client/Matter: -None- Search Terms: "due process" /s "division of human rights" Search Type: Terms and Connectors Narrowed by: Content Type Narrowed by Cases Court: 2nd Circuit Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 1 of 11 WILLIAM SCOTT Last updated October 21, 2016 11:45:55 am GMT Barnes v. New York State Div. of Human Rights United States District Court for the Southern District of New York January 7, 2016, Decided; January 8, 2016, Filed 14 Civ. 2388 (LTS)(HBP) Reporter 2016 U.S. Dist. LEXIS 2396; 2016 WL 110522 BILLY BARNES, Plaintiff, -against- NEW YORK STATE DIVISION OF HUMAN RIGHTS, et al., Defendants. Prior History: Barnes v. N.Y. State Div. of Human Rights, 2014 U.S. Dist. LEXIS 132194 (S.D.N.Y., Sept. 19, 2014) Core Terms state court, collateral estoppel, proposed amended complaint, amend, motion to dismiss, res judicata, Rights, federal court, futile, plaintiff's claim, district court, summary order, investigate, witnesses, complain, courts, fair opportunity, motion for leave, allegations, documents, subject matter jurisdiction, sovereign immunity, leave to amend, jurisdictional, proceedings, retaliation, terminated, citations, judgments, issues Counsel: [*1] Billy Barnes, Plaintiff, Pro se, Copiague, NY. For Beth Israel Medical Center, Defendant: David Roger Marshall, LEAD ATTORNEY, Edwards Wildman Palmer LLP (NYC), New York, NY. Judges: HENRY PITMAN, United States Magistrate Judge. Opinion by: HENRY PITMAN Opinion OPINION AND ORDER PITMAN, United States Magistrate Judge: I. Introduction By notice of motion dated March 2, 2015 (Docket Item 51), pro se plaintiff Billy Barnes moves for leave to file an amended complaint. The proposed amended complaint would add Edith Aquino-Salem1 and Merle Nazares as defendants. It also would add claims of unlawful discrimination and retaliation under 42 U.S.C. § 1981 against defendant Beth Israel Medical Center ("BIMC") and denial of equal protection under 42 U.S.C. § 1983 against defendant the New York State Division of Human Rights (the "NYSDHR"), in addition to plaintiff's previously asserted claims against BIMC and the NYSDHR for denial of due process under Section 1983 and unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (the "NYSHRL"). For the reasons set forth below, plaintiff's motion is denied.2 II. Facts Plaintiff, an African-American male, was hired as a cardiovascular technician by BIMC in July 2006 (Plaintiff's Proposed Amended Complaint (Docket Item 52-1) ("Am. Compl."), at 103). On January 26, 2011, 1 Plaintiff's proposed amended complaint refers to Aquino- Salem as both "Aquino-Salen" [*2] and "Aquino-Salem." Because plaintiff uses "Aquino-Salem" in the caption of his proposed amended complaint, I assume that the individual's correct name is "Aquino-Salem" and shall refer to her by that name throughout this opinion. 2 This action has been referred to me for all pretrial supervision. Accordingly, I can decide plaintiff's instant motion for leave to amend the complaint. Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) ("[A] district judge may refer nondispositive motions, such as a motion to amend the complaint, to a magistrate judge for decision without the parties' consent."). 3 Because plaintiff's proposed amended complaint and the accompanying submissions lack consistent internal pagination, all page citations to plaintiff's submissions refer to Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 2 of 11 Page 2 of 10 WILLIAM SCOTT BIMC terminated plaintiff for "gross misconduct" because he allegedly put his hands around the neck of Aquino-Salem, a Filipina nurse, during an argument the two had two days earlier (Am. Compl., at 3-6 & Ex. A, at 16). The day after the incident, plaintiff provided BIMC with a written statement in which he denied placing his hands around Aquino-Salem's neck but acknowledged that he told Aquino-Salem "in a joking matter [sic] I will choke you woman" (Am. Compl., Ex. 5, at 32). On the same day, Nazares, plaintiff's supervisor, who is also a Filipina nurse, informed plaintiff that she was going to conduct a "complete investigation" into the altercation between plaintiff and Aquino-Salem (Am. Compl., Ex. A, at 16). The following day, BIMC informed plaintiff that he was being terminated based on testimony from Aquino- Salem and Heather Best-Pilgrim, an African-American female nurse who witnessed the incident, that plaintiff had put his hands around Aquino-Salem's neck (Am. Compl., 3-6 & Ex. 6, at 36). Plaintiff filed a grievance with BIMC challenging his termination, and his termination was sustained following a grievance hearing (Am. Compl., at 11). On November 9, 2011, plaintiff filed a complaint against BIMC with the NYSDHR (Am. Compl., at 10 & Exs. A- B). In his NYSDHR complaint, which plaintiff attaches to his proposed amended complaint as Exhibit A, plaintiff challenged his termination as discriminatory [*4] on the basis of both his sex and his race and retaliatory (Am. Compl., Ex. A). Specifically, plaintiff's NYSDHR complaint alleged that Nazares failed to conduct a proper investigation of the incident between plaintiff and Aquino-Salem because (1) plaintiff had claimed in the statement he provided to BIMC on January 25, 2011 that Nazares was "very discriminative" and (2) Nazares wanted "to protect her fellow phillipino [sic] friend coworker [Aquino-Salem] from any type of disciplinary action" (Am. Compl., Ex. A, at 16). During the NYSDHR's investigation of plaintiff's complaint, plaintiff also claimed to the NYSDHR that Nazares and Lisa Allen, a BIMC administrator, prevented witnesses from testifying at his grievance hearing (Am. Compl., Ex. 4, at 29). Plaintiff's NYSDHR complaint was later amended to add a charge of national-origin discrimination (Am. Compl., at 10 & Ex. C at 24). The NYSDHR investigated plaintiff's complaint (Am. Compl., at 10-11 & Exs. A-C). During the investigation, the NYSDHR investigator, James D. Moffatt, received the page numbers provided by the Court's ECF system. [*3] evidence from both BIMC and plaintiff and attempted to contact three individuals that plaintiff had identified as witnesses -- Christine Taylor, Yi [*5] Li Huang and Marilou Cristobal -- by leaving telephone voice messages for each witness (Am. Compl., Ex. C, at 25- 26). These witnesses, however, never responded to Moffatt's messages (Am. Compl., Ex. 6, at 37). On April 20, 2012, Moffatt reported the results of his investigation of plaintiff's complaint to Leon C. Dimaya, Regional Director of the NYSDHR (Am. Compl., Ex. B). On the same day, Dimaya issued a Determination and Order After Investigation, which found that "there is NO PROBABLE CAUSE to believe that [BIMC] has engaged in or is engaging in the unlawful discriminatory practice complained of" and "[t]here is a lack of evidence in support of complainant's allegations of retaliation, and race/color and sex discrimination" (Am. Compl., at 10). The Determination and Order After Investigation instead stated that the "record suggests . . . that [BIMC] terminated complainant's employment for the non-discriminatory reason that [BIMC] believed complainant ha[d] engaged in gross misconduct by placing his hands around the neck of a co-worker" (Am. Compl., at 10). The Equal Employment Opportunity Commission ("EEOC") subsequently adopted the NYSDHR's findings and issued a Dismissal and Notice of Rights [*6] to plaintiff on September 12, 2012 (EEOC Dismissal and Notice of Rights, attached as Ex. 10 to the Declaration of David Marshall (Docket Item 40) ("Marshall Decl.")).4 4 Because defendants oppose plaintiff's motion on the grounds of futility and raise the defenses of collateral estoppel and res judicata, the court may consider plaintiff's proposed amended complaint, the documents attached thereto, documents of which judicial notice may be taken, including state court and agency records and decisions, and documents which are integral to the claims. White v. Anchor House, Inc., No. 11 CV 3232 NGG LB, 2011 U.S. Dist. LEXIS 127727, 2011 WL 5402162 at *1 (E.D.N.Y. Nov. 3, 2011) ("In deciding a motion to dismiss or a motion to amend, the Court may consider, in addition to the complaint, documents that plaintiff attached to the pleadings, documents referenced in the complaint, documents that plaintiff relied on in bringing the action which were in plaintiff's possession or of which plaintiff had knowledge, and matters of which judicial notice may be taken."), citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also Griffin v. Goldman, Sachs & Co., 08 Civ. 2992 (LMM), 2008 U.S. Dist. LEXIS 74371, 2008 WL 4386768 at *2 (S.D.N.Y. Sept. 23, 2008) (McKenna, D.J.) ("[W]hen a motion to dismiss is premised on the doctrine of collateral estoppel, a court is permitted to take judicial notice 2016 U.S. Dist. LEXIS 2396, *2 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 3 of 11 Page 3 of 10 WILLIAM SCOTT Plaintiff also commenced an Article 78 proceeding against the NYSDHR and BIMC in the Supreme Court of New York, New York County, on May 15, 2012 (Article 78 Notice of Petition & Verified Petition ("Article 78 Petition"), attached as Ex. 11 to Marshall Decl., at 2- 55). In his Article 78 petition, plaintiff asked that "the court . . . overturn the decision of [the NYSDHR] for the lack of investigation" (Article 78 Petition, at 2). Specifically, plaintiff's petition [*8] challenged the NYSDHR investigator's findings and his decision to attempt to contact plaintiff's witnesses by telephone instead of conducting field interviews (Article 78 Petition). On November 5, 2012, the New York Supreme Court dismissed plaintiff's petition, finding that (1) "an adequate investigation was done" and (2) the NYSDHR's decision was not arbitrary and capricious. Barnes v. N.Y. State Div. of Human Rights, 2012 N.Y. Misc. LEXIS 5537, 2012 NY Slip Op 32908[U], *10-*12 (Sup. Ct. Nov. 5, 2012). Plaintiff appealed the Supreme Court's decision to the Appellate Division of the Supreme Court for the State of New York, which found that (1) "[NYS]DHR's determination had a rational basis in the record and was not arbitrary and capricious"; (2) "[plaintiff] was not prevented from showing pretext by [the NYSDHR]'s failure to make additional attempts to contact witnesses" and (3) "the investigation conducted by [NYS]DHR was sufficient and not one-sided, and . . . [plaintiff] had a full and fair opportunity to present his own case." Barnes v. Beth Israel Med. Ctr., 113 A.D.3d 431, 431, 977 of and consider [*7] the complaints and the record generated in both actions without having to convert the motion to dismiss into a summary judgment motion." (citation and internal quotation marks omitted)); Evans v. N.Y. Botanical Garden, 02 Civ. 3591 (RWS), 2002 U.S. Dist. LEXIS 16434, 2002 WL 31002814 at *4 (S.D.N.Y. Sept. 4, 2002) (Sweet, D.J.) ("A court may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment."); Burrowes v. Brookdale Hosp. & Med. Ctr., No. 01 CV 2969 SJ, 2002 U.S. Dist. LEXIS 29326, 2002 WL 32096575 at *3 (E.D.N.Y. Mar. 28, 2002) (opposition to a motion for leave to amend based on "[f]utility is assessed by the same standards applied to a motion to dismiss."), aff'd, 66 F. App'x 229 (2d Cir. 2003) (summary order); Nickens v. N.Y. State Dep't of Corr. Servs., No. 94 CV 5425 (FB), 1996 U.S. Dist. LEXIS 22372, 1996 WL 148479 at *1 (E.D.N.Y. Mar. 27, 1996) (taking judicial notice of documents the plaintiff had filed with the EEOC on a motion to dismiss). 5 Because the exhibits to the Marshall Decl. lack consistent internal pagination, I use the page numbers assigned by the Court's ECF system. N.Y.S.2d 888, 888 (1st Dep't 2014). On April 9, 2014, plaintiff commenced the instant action (Docket Items 1-2). III. Analysis A. Legal Standards The standards applicable to a motion for leave to amend [*9] a pleading are well-settled and require only brief review. A motion for leave to amend is generally governed by Fed.R.Civ.P. 15(a), which provides that leave to amend should be freely granted "when justice so requires." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Nonetheless, a 'district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.'" Sissel v. Rehwaldt, 519 F. App'x 13, 17 (2d Cir. 2013) (summary order), quoting Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). The party opposing the amendment has the burden of demonstrating that leave to amend would be prejudicial or futile. Staskowski v. Cty. of Nassau, No. 05CV5984 (SJF)(WDW), 2007 U.S. Dist. LEXIS 102207, 2007 WL 4198341 at *4 (E.D.N.Y. Nov. 21, 2007); see also Lugosch v. Congel, No. 00-CV- 784, 2002 U.S. Dist. LEXIS 8455, 2002 WL 1001003 at *1 (N.D.N.Y. May 14, 2002). A motion for leave to amend may be denied as futile if the proposed amendments would not withstand a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 615 F.3d 97, 99 (2d Cir. 2010) ("We determine that leave to amend would be futile because the proposed amended complaint did not cure the original complaint's deficiencies . . . [with respect to] subject matter jurisdiction . . . ."); Bridgeport Music, Inc. v. Universal Music Grp., Inc., 248 F.R.D. 408, 416 (S.D.N.Y. 2008) (Marrero, D.J.) ("A motion to amend may be denied as futile if the amendment would not withstand a motion to dismiss pursuant to Rule 12(b)(6)."); accord Health- Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Although Fed.R.Civ.P. 15(a) provides that leave to amend should be given freely when [*10] justice so requires, where . . . there is no merit in the proposed amendments, leave to amend should be denied."). "A case is properly dismissed for lack of subject matter 2016 U.S. Dist. LEXIS 2396, *6 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 4 of 11 Page 4 of 10 WILLIAM SCOTT jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In considering a motion to dismiss for lack of subject matter jurisdiction, a district court 'must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs.'" Rosen v. N. Shore Towers Apartments, Inc., 11-CV-00752 RRM LB, 2011 U.S. Dist. LEXIS 68412, 2011 WL 2550733 at *2 (E.D.N.Y. June 27, 2011) (brackets in original), quoting J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). Additionally, a court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdic-tional issue, but . . . may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Sch., supra, 386 F.3d at 110. "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005). In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is plausible when its factual content "allows the court to draw the reasonable inference that the defendant is [*11] liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted). Additionally, while a court must "assume that all well- pleaded factual allegations are true and draw all reasonable inferences in the plaintiff's favor" when considering a motion to dismiss under Rule 12(b)(6), Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005) (citation omitted), "mere conclusory statements" or legal conclusions contained in the complaint are not entitled to the presumption of truth. Ashcroft v. Iqbal, supra, 556 U.S. at 678. Finally, where, as here, a plaintiff proceeds pro se, the proposed amended complaint "must be construed liberally 'to raise the strongest arguments [it] suggest[s].'" Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013), quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). B. Application 1. Plaintiff's Claims against BIMC, Aquino-Salem and Nazares BIMC argues that plaintiff's motion should be denied for reasons of futility because (1) plaintiff's Title VII and NYSHRL claims against BIMC, Aquino-Salem and Nazares are barred by the doctrine of collateral estoppel and (2) plaintiff's Title VII, NYSHRL and Section 1981 claims against BIMC, Aquino-Salem and Nazares are barred by the doctrine of res judicata.6 a. Collateral Estoppel 28 U.S.C. § 1738 "requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Kremer v. Chemical Constr., Corp., 456 U.S. 461, 466, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); accord Rullan v. N.Y.C. Dep't of Sanitation, No. 10 Civ. 8079 (RPP), 2011 U.S. Dist. LEXIS 50711, 2011 WL 1833335 at *3 (S.D.N.Y. May 12, 2011) (Patterson, D.J.). Under New York law, collateral estoppel applies where "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 94 (2d Cir. 2005) (citation omitted). In Kremer v. Chemical Constr., Corp., supra, 456 U.S. 461, the Supreme Court addressed the issue of whether a NYSDHR "no probable cause" determination that had been reviewed and affirmed by the New York Appellate Division barred a subsequent Title VII action pursuant to the doctrine of collateral estoppel. The Court held that the Appellate Division's affirmance of the NYSDHR determination was entitled to preclusive effect as to the subsequent Title VII action because (1) the plaintiff's allega-tions [*13] of employment discrimination had been raised earlier in his NYSDHR complaint, (2) the Appellate Division had resolved the plaintiff's claim and (3) the NYSDHR's procedure for investigating the complaint, in combination with the opportunity for full judicial review, provided the plaintiff with a full and fair opportunity to litigate his claim of discrimination. See Kremer v. Chemical Constr., Corp., supra, 456 U.S. at 6 Because I conclude below that plaintiff's claims against BIMC, Aquino-Salem [*12] and Nazares are barred under collateral estoppel and res judicata, I do not address BIMC's alternative arguments that plaintiff's claims against Aquino- Salem and Nazares are untimely and procedurally defective. 2016 U.S. Dist. LEXIS 2396, *10 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 5 of 11 Page 5 of 10 WILLIAM SCOTT 483-85. Since Kremer, federal courts within this Circuit have repeatedly applied collateral estoppel in similar situations where, as here, (1) discrimination claims were made to the NYSDHR, (2) the NYSDHR issued a finding of no probable cause, (3) the plaintiff challenged the NYSDHR's determination and procedures in state court and (4) the NYSDHR's determination was affirmed by the New York courts. E.g., Gomez v. N.Y. State Dep't of Transp., No. 09-CV-05184, 2011 U.S. Dist. LEXIS 77907, 2011 WL 2940623 at *2 (E.D.N.Y. July 19, 2011) (dismissing discrimination and failure to accommodate claims where the plaintiff's complaint relied on the same facts that were asserted in his NYSDHR complaint and the New York Supreme Court had addressed and rejected plaintiff's argument that the NYSDHR investigation was deficient for failing to call witnesses on his behalf); Rullan v. N.Y.C. Dep't of Sanitation, supra, 2011 U.S. Dist. LEXIS 50711, 2011 WL 1833335 at *5 (dismissing the plaintiff's federal complaint alleging discrimination and retaliation where those issues [*14] were already raised before the NYSDHR and affirmed in an Article 78 proceeding); Aumporn Wongkiatkachorn v. Capital One Bank, 09 Civ. 9553 (CM)(KNF), 2010 U.S. Dist. LEXIS 107841, 2010 WL 3958764 at *5 (S.D.N.Y. Oct. 5, 2010) (McMahon, D.J.) (same); Wilson v. Ltd. Brands, Inc., 08 Civ. 3431 (LAP), 2009 U.S. Dist. LEXIS 37576, 2009 WL 1069165 at *2 (S.D.N.Y. Apr. 17, 2009) (Preska, D.J.) (same); accord Yan Yam Koo v. Dep't of Bldgs. of City of N.Y., 218 F. App'x 97, 99 (2d Cir. 2007) (summary order) ("While the agency determination in and of itself did not preclude [plaintiff's] action, preclusive effect attached once the state court reviewed and affirmed the [NY]SDHR's finding of no probable cause."). Here, plaintiff's proposed amended complaint raises the same issues and makes the same discrimination and retaliation claims that were asserted in his NYSDHR complaint and dismissed by the NYSDHR. Indeed, in support of the allegations made in his proposed amended complaint, plaintiff attaches, among other things, (1) his NYSDHR complaint form, (2) a letter he submitted to the NYSDHR on January 22, 2012 and (3) the written statement plaintiff prepared for BIMC on January 25, 2011 (Am. Compl., Exs. A, 4-5). Further, both the New York Supreme Court and the Appellate Division affirmed the NYSDHR's "no probable cause" determination and rejected plaintiff's argument that the NYSDHR investigation was inadequate because the NYSDHR investigator [*15] did not conduct field interviews of the witnesses identified by plaintiff. Barnes v. N.Y. State Div. of Human Rights, supra, 2012 N.Y. Misc. LEXIS 5537, 2012 NY Slip Op 32908[U] at *10- *12, aff'd, 113 A.D.3d at 431, 977 N.Y.S.2d at 888 ("[T]he record shows that the investigation conducted by [NYSHDR] was sufficient and not one-sided, and that [plaintiff] had a full and fair opportunity to present his own case."). Finally, while plaintiff contends in his motion papers that he has uncovered new evidence "that support[s] that there were attempts to intimidate and silence" Christine Taylor, Marilou Cristobal and Yi Li Huang so that they would not testify on his behalf at his grievance hearing (Pro Se Motion for Leave to Amend Complaint (Docket Item 52) ("Pl. Memo"), at 2), the same claims of witness intimidation and coercion were previously raised in plaintiff's NYSDHR complaint, Article 78 Petition and Pre-Argument Statement to the Appellate Division. For example, plaintiff's NYSDHR complaint stated that Cristobal was coerced by Nazares not to make a statement and Taylor was coerced not to attend plaintiff's grievance hearing (Am. Compl., Ex. A, at 15). Similarly, plaintiff's Article 78 Petition stated that Cristobal and Huang were "cohearsed [sic] and told not to get involved or give a statement" (Article 78 Petition, at 6). Finally, plaintiff's Pre-Argument [*16] Statement to the Appellate Division asserted that Huang "was told by our employer not to get involved" and that Taylor, Huang and Cristobal were coerced not to testify or provide statements on plaintiff's behalf (Notice of Appeal and Pre-Argument Statement to the First Department, attached as Ex. 13 to Marshall Decl., at 10-11).7 7 Plaintiff also contends that he has "new found evidence" showing that the NYSDHR did not fully investigate his complaint because Dimaya, the Regional Director of the NYSDHR who issued the NYSDHR's determination, is of Filipino descent like Aquino-Salem and Nazares (Pl. Memo, at 2; see also Am. Compl., at 5 ("The regional director who started this case is Phillipino [sic] and did not address any of the allegations [plaintiff] had brought to his attention.")). This assertion does not change the analysis of defendants' collateral estoppel defense. As discussed above, plaintiff's challenges to the sufficiency of the NYSDHR's investigation were previously raised before the New York Supreme Court and the Appellate Division. Further, plaintiff's allegation that the NYSDHR did not fully investigate his complaint because Dimaya is Filipino is unsupported by any factual [*17] allegations other than the fact of Mr. Dimaya's alleged national origin; such a conclusory allegation is not afforded the presumption of truth. Ashcroft v. Iqbal, supra, 556 U.S. at 678; see also Bermudez v. City of New York, 783 F. Supp. 2d 560, 581 (S.D.N.Y. 2011) (McMahon, D.J.) ("a recitation of a false 2016 U.S. Dist. LEXIS 2396, *12 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 6 of 11 Page 6 of 10 WILLIAM SCOTT Because the issues raised in plaintiff's Title VII and NYSHRL claims were actually and necessarily decided in the prior proceedings and plaintiff had a full and fair opportunity to litigate those issues, plaintiff's Title VII and NYSHRL claims against BIMC, Aquino-Salem and Nazares are barred by collateral estoppel.8 b. Res Judicata Like collateral estoppel, where a federal court is considering the res judicata effect of a state court judgment, the federal court must afford the state court judgment the same preclusive effect it would have under the law of the state in which it [*19] was entered. Marrese v. Am. Acad. of Orthopedic Surgeons, 470 U.S. 373, 380-81, 105 S. Ct. 1327, 84 L. Ed. 2d 274 (1985); Burka v. N.Y.C. Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994). New York law applies the "transactional" approach to res judicata, meaning that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are syllogism [such as] (1) I am (insert name of a protected class); (2) something bad happened to me at work; (3) therefore, it happened because I am (insert name of protected class)" does not meet the standard promulgated by the Supreme Court in Twombly and Iqbal). 8 Although plaintiff did not name Aquino-Salem or Nazares as respondents in his NYSDHR complaint, the requirements of collateral estoppel are met with respect to plaintiff's proposed claims against them because (1) whether their conduct constituted retaliation or discrimination on the part of BIMC was actually and necessarily decided in the prior proceedings, and (2) plaintiff had a full and fair opportunity to litigate [*18] those issues in the prior proceedings. The fact that neither Aquino-Salem nor Nazares were parties to the NYSDHR and state court proceedings is immaterial. Yan Yam Koo v. Dep't of Bldgs. of City of N.Y., supra, 218 F. App'x at 99 ("That the plaintiff did not name the identical parties in the state and federal actions does not disturb our finding of preclusiveness."), citing LaFleur v. Whitman, 300 F.3d 256, 274 (2d Cir. 2002) ("Our inquiry with regard to the 'full and fair opportunity' prong of the collateral estoppel doctrine is whether [the plaintiff], as the petitioner-plaintiff in the previous state court proceeding, was fully able to raise the same factual or legal issues as she asserts here --not whether the respondent- defendants were identical in both cases." (emphasis in original)); see also 3 E. 54 St. N.Y., LLC v. Patriarch Partners Agency Servs. LLC, 110 A.D.3d 516, 516-17, 972 N.Y.S.2d 549, 549-50 (1st Dep't 2013) (Under New York law, "only the party sought to be collaterally estopped must have been a party to the action when the prior determination was made. New York has long ago abandoned the 'mutuality of estoppel' requirement." (citations omitted)). barred, even if based upon different theories or if seeking a different remedy." Giannone v. York Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir. 2008) (per curiam) (citation omitted). Federal courts within this Circuit have applied the doctrine of res judicata to preclude employment discrimination claims arising out of the same set of facts that were previously alleged in support of unsuccessful claims before the NYSDHR and the New York Supreme Court. See, e.g., Rullan v. N.Y.C. Dep't of Sanitation, supra, 2011 U.S. Dist. LEXIS 50711, 2011 WL 1833335 at *3-*4; Arnold v. Beth Abraham Health Servs., Inc., 09 Civ. 6049 (DLC), 2009 U.S. Dist. LEXIS 121382, 2009 WL 5171736 at *4 (S.D.N.Y. Dec. 30, 2009) (Cote, D.J.), aff'd on other grounds sub nom., Arnold v. 1199 SEIU, 420 F. App'x 48 (2d Cir. 2011) (summary order). As discussed in Section III.B.1.a, supra, plaintiff's Section 1981, NYSHRL and Title VII claims arise out of the same facts that were alleged before the NYSDHR and the New York courts. Thus, even though plaintiff did not expressly raise any Section 1981 claims before either the NYSDHR or the New York state courts, his Section 1981 claims against BIMC, Aquino-Salem and Nazares, as well as his NYSHRL and Title VII claims, are precluded by res judicata. Kirkland v. City of Peekskill, 828 F.2d 104, 109-10 (2d Cir. 1987) (applying res judicata to Section 1981 and Section 1983 claims where [*20] the underlying facts had been previously raised in a NYSDHR complaint and plaintiff's appeal of the NYSDHR's decision had been dismissed by the Appellate Division); accord Loucar v. Boston Mkt. Corp., 294 F. Supp. 2d 472, 482 (S.D.N.Y. 2003) (Pauley, D.J.); Evans v. N.Y. Botanical Garden, 02 Civ. 3591 (RWS), 2002 U.S. Dist. LEXIS 16434, 2002 WL 31002814 at *5 (S.D.N.Y. Sept. 4, 2002) (Sweet, D.J.).9 2. Plaintiff's Claims against the NYSDHR10 9 In his motion papers, plaintiff indicates that his Section 1983 claims are asserted against the NYSDHR only, and not BIMC, Nazares or Aquino-Salem (Pl. Memo, at 1). In any event, to the extent plaintiff wishes to assert Section 1983 claims against BIMC, Nazares or Aquino-Salem, such claims would also be precluded by res judicata. Kirkland v. City of Peekskill, supra, 828 F.2d at 109-10. 10 The NYSDHR appears to assert that both its Eleventh Amendment and Rooker-Feldman arguments are jurisdictional (see Memorandum of Law in Opposition to Plaintiff's Motion for Leave to Amend the Complaint and in Further Support of Defendant's Motion to Dismiss (Docket Item 53), at 4-7). The case law as to the Eleventh Amendment is not so clear, see 2016 U.S. Dist. LEXIS 2396, *17 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 7 of 11 Page 7 of 10 WILLIAM SCOTT The NYSDHR argues that plaintiff's motion should be denied for reasons of futility because plaintiff's Section 1983 and NYSHRL claims against it are barred by the Eleventh Amendment. The NYSDHR also argues that plaintiff's claims against it are barred by the Rooker- Feldman doctrine. Finally, the NYSDHR contends that plaintiff's employment discrimination and Section 1983 claims against it fail to state claims and that plaintiff's Section 1983 claims are precluded by res judicata. a. Sovereign Immunity Under "the Eleventh Amendment . . . , state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogate[d] the states' Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (internal quotation marks and citations omitted; brackets in original); accord Gonzalez v. N.Y. State Div. of Human Rights, 10 Civ. 98 (WHP), 2011 U.S. Dist. LEXIS 114662, 2011 WL 4582428 at *3 (S.D.N.Y. Sept. 29, 2011) (Pauley, D.J.) ("The Eleventh Amendment to the United States Constitution bars federal actions against a state for monetary damages absent the state's waiver of its sovereign immunity or an abrogation [*22] of that immunity by the United States Congress."). "[T]he Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state." Gollomp v. Spitzer, supra, 568 F.3d at 366 (citation omitted). In enacting Section 1983, Congress did not abrogate the states' sovereign immunity, Gaby v. Bd. of Trustees of Cmty. Tech. Colleges, 348 F.3d 62, 63 (2d Cir. 2003) (per curiam) ("[N]either a State nor its officials acting in Woods v. Rondout Central Sch. Dist. Bd. of Educ., 466 F.3d 232, 237-38 (2d Cir. 2006), and, in its most recent statement on the issue, the Supreme Court has stated that it has never decided whether the Eleventh Amendment is jurisdictional. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 391, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998). The NYSDHR's Rooker- Feldman argument, on the other hand, does appear to be jurisdictional. Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014) ("The Rooker-Feldman doctrine pertains not to the validity [*21] of the suit but to the federal court's subject matter jurisdiction to hear it."). I conclude that I need not decide whether the NYSDHR's Eleventh Amendment argument is jurisdictional. The outcome of the present motion would be the same regardless of whether the argument is jurisdictional. their official capacities are 'persons' under § 1983."), quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), nor has New York consented to being sued in federal court under either Section 1983 or the NYSHRL. Jones v. N.Y. State Metro D.D.S.O., 543 F. App'x 20, 22 (2d Cir. 2013) (summary order) ("New York has not waived sovereign immunity from suits for damages under Section 1983."); Trivedi v. N.Y. State Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 722 (S.D.N.Y. 2011) (Crot-ty, D.J.) ("New York [has not] explicitly and unequivocally waived its sovereign immunity with respect to claims brought under . . . Section 1983 . . . [or the] NYSHRL . . . ."), aff'd sub nom., Seck v. Office of Court Admin., 582 F. App'x 47 (2d Cir. 2014) (summary order). Accordingly, plaintiff's NYSHRL and Section 1983 claims against the NYSDHR are barred by the Eleventh Amendment. Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5 (2d Cir. 1997) (per curiam) ("As the district court ruled, Baba's suit 'seek[s] equitable and legal relief for past conduct' against [the NYSDHR], and it is beyond cavil that 'the Eleventh Amendment bars this [type of] suit.'" (citation omitted)); McPherson v. Plaza Athenee, NYC, 12 Civ. 0785 (AJN), 2012 U.S. Dist. LEXIS 127822, 2012 WL 3865154 at *6 (S.D.N.Y. Sept. 4, 2012) (Nathan, D.J.) ("Federal civil rights lawsuits against the NYSDHR are barred by the Eleventh Amendment."), aff'd [*23] sub nom., McPherson v. Hotel Plaza Athenee, NYC, 538 F. App'x 109 (2d Cir. 2013) (summary order); Gonzalez v. N.Y. State Div. of Human Rights, supra, 2011 U.S. Dist. LEXIS 114662, 2011 WL 4582428 at *3 (dismissing NYSHRL claims against the NYSDHR due to sovereign immunity).11 b. The Rooker-Feldman Doctrine Under the Rooker-Feldman doctrine, "federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cty. Bd. of Elections, supra, 422 F.3d at 84. The Rooker-Feldman is "confined to . . . cases brought by state-court losers complaining of injuries caused by 11 To the extent that plaintiff's proposed amended complaint attempts to bring a Section 1981 claim against the NYSDHR, such a claim is also barred by the Eleventh Amendment. Benzo v. N.Y. State Div. of Human Rights, 95 Civ. 5362 (LAP), 1997 U.S. Dist. LEXIS 901, 1997 WL 37961 at *10 (S.D.N.Y. Jan. 31, 1997) (Preska, D.J.) aff'd, 141 F.3d 1151 (2d Cir. 1998). 2016 U.S. Dist. LEXIS 2396, *20 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 8 of 11 Page 8 of 10 WILLIAM SCOTT state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Hoblock v. Albany Cty. Bd. of Elections, supra, 422 F.3d at 85 (citation omitted). In Hoblock, the Court of Appeals clarified that the Rooker-Feldman doctrine only bars claims when the plaintiff (1) "lost in state court"; (2) "complain[s] of injuries caused by [the] state-court judgment"; (3) seeks "district court review and rejection of [that] judgment" and (4) commences the federal action after the state court judgment was rendered. Hoblock v. Albany Cty. Bd. of Elections, supra, 422 F.3d at 85. The Hoblock court also explained that the "core requirement" of [*24] Rooker-Feldman is "that federal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of an injury caused by a state judgment." Hoblock v. Albany Cty. Bd. of Elections, supra, 422 F.3d at 87 (emphasis in original). In explaining the limitations of the doctrine, the Court of Appeals provided an example -- which is very similar to the present case -- of the type of case to which Rooker- Feldman does not apply: Suppose a plaintiff sues his employer in state court for violating both state anti-discrimination law and Title VII and loses. If the plaintiff then brings the same suit in federal court, he will be seeking a decision from the federal court that denies the state court's conclusion that the employer is not liable, but he will not be alleging injury from the state judgment. Instead, he will be alleging injury based on the employer's discrimination. The fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker- Feldman, of the state-court judgment. Hoblock v. Albany Cty. Bd. of Elections, supra, 422 F.3d at 87-88. Hoblock has been applied to a plaintiff's federal challenge of an adverse decision made by a state agency and affirmed by the New York courts. For example, in Ponterio v. Kaye, 06 Civ. 6289 (HB), 2007 U.S. Dist. LEXIS 4105, 2007 WL 141053 (S.D.N.Y. Jan. 22, 2007) [*25] (Baer, D.J.), aff'd, 328 F. App'x 671 (2d Cir. 2009) (summary order), the New York Administrative Board of Courts denied recertification for service to a retired New York state judge. The retired judge commenced an action challenging the denial of his recertification in New York Supreme Court. The Supreme Court dismissed the retired judge's claims, and the Appellate Division affirmed the Supreme Court's dismissal. The retired judge then brought a federal action challenging the denial of his recertification and named as defendants the New York Administrative Board of Courts, the Chief Judge of the State of New York, the Chief Administrative Judge of the New York Courts and the Presiding Justices of each of the four Departments of the Appellate Division. The defendants moved to dismiss the federal complaint, arguing, among other things, that the claims were barred by Rooker- Feldman. The court rejected this argument: [The] federal action complains of injuries allegedly committed upon [plaintiff] by the Board . . . and subsequently ratified by the New York state courts. [Plaintiff's] action falls squarely into Hoblock's . . . category of lawsuits that do not complain of injuries caused by state court [*26] judgments. Thus, Rooker-Feldman doctrine does not bar [the] instant claims. Ponterio v. Kaye, supra, 2007 U.S. Dist. LEXIS 4105, 2007 WL 141053 at *1-*5. Accordingly, because plaintiff does not complain of an injury caused by the New York courts, but rather of injuries caused by BIMC, the NYSDHR, Aquino-Salem and Nazares, the Rooker-Feldman doctrine does not bar his claims. c. Plaintiff's Claims against the NYSDHR under Title VII, Section 1983 and the NYSHRL The NYSDHR next argues that plaintiff's Title VII and NYSHRL claims against it fail to state claims because plaintiff does not allege that the NYSDHR was his employer. "[T]he existence of an employer-employee relationship is a primary element of [a] Title VII claim[ ]. An employer-employee relationship is also required to sustain analogous claims under the NYSHRL." Brown v. Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014) (citations omitted; brackets in original). Here, plaintiff does not allege that the NYSDHR was his employer. Rather, he asserts in his motion papers that his NYSDHR complaint "was a signed contract between me and NYSDHR in which [I] became there [sic] employer" (Pl. Memo, at 2). Even assuming this were the case, plaintiff's argument is without merit because, as the Supreme Court has noted, "employers are [not] members of the class for whose especial benefit . . . 2016 U.S. Dist. LEXIS 2396, *23 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 9 of 11 Page 9 of 10 WILLIAM SCOTT Title VII [*27] was enacted." Northwest Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77, 92, 101 S. Ct. 1571, 67 L. Ed. 2d 750 (1981). Accordingly, plaintiff fails to state claims against the NYSDHR under Title VII or the NYSHRL.12 Finally, for the same reasons discussed in Section III.B.1.b, supra, plaintiff's Section 1983 claims against the NYSDHR are also barred by the doctrine of res judicata because plaintiff had the opportunity, and in fact did, challenge the sufficiency of the NYSDHR's investigation and determination in both his Article 78 proceedings and his appeal to the Appellate Division. See Gomez v. N.Y. State Dep't of Transp., supra, 2011 U.S. Dist. LEXIS 77907, 2011 WL 2940623 at *2 ("[Plaintiff's] Due Process violation [ ] was thoroughly examined and rejected by the New York Supreme Court in the Article 78 proceeding. The state court found as a matter of law that the [NYS]DHR's investigation was proper. [*28] Coupled with Article 78 judicial review, [NYS]DHR's investigative procedures were sufficient under the Due Process Clause." (citations omitted)). Accordingly, plaintiff's proposed amended complaint does not state an actionable claim against the NYSDHR. IV. Conclusion Because all of plaintiff's claims are futile and would be subject to dismissal under Fed.R.Civ.P. 12(b) (1) or Fed.R.Civ.P. 12(b)(6), plaintiff's motion for leave to amend is denied. Dated: New York, New York January 7, 2016 SO ORDERED 12 The NYSDHR also argues that plaintiff's Section 1983 equal protection claim against it fails to state a claim because plaintiff does not allege that the NYSDHR had "a policy or custom" that violated his equal protection rights, as required to establish municipal liability under Section 1983. The NYSDHR's argument is inapposite because "policy or custom" liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), applies to municipalities, not state agencies. Barnes v. Fischer, 9:13-CV-164 GLS/RFT, 2014 U.S. Dist. LEXIS 146924, 2014 WL 5293672 at *5 n.8 (N.D.N.Y. Oct. 15, 2014) ("Monell is 'limited to local government which are not considered part of the State for Eleventh Amendment purposes.'" (citation omitted)). /s/ Henry Pitman HENRY PITMAN United States Magistrate Judge 2016 U.S. Dist. LEXIS 2396, *26 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 10 of 11 Page 10 of 10 WILLIAM SCOTT End of Document 2016 U.S. Dist. LEXIS 2396, *28 Case 3:15-cv-00692-LEK-DEP Document 82-3 Filed 11/02/16 Page 11 of 11 | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2016 LexisNexis WILLIAM SCOTT User Name: WILLIAM SCOTT Date and Time: Nov 02, 2016 12:58 Job Number: 39181665 Document (1) 1. McPherson v. Plaza Athenee, 2012 U.S. Dist. LEXIS 127822 Client/Matter: -None- Search Terms: 2012 us dist lexis 127822 Search Type: Natural Language Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 1 of 7 WILLIAM SCOTT Positive As of: November 2, 2016 12:58 PM EDT McPherson v. Plaza Athenee United States District Court for the Southern District of New York September 4, 2012, Decided; September 4, 2012, Filed 12 Civ. 0785 (AJN) Reporter 2012 U.S. Dist. LEXIS 127822; 2012 WL 3865154 Racquet McPherson, Plaintiff, -v- Plaza Athenee, NYC, et al., Defendants. Core Terms Hotel, alleges, election of remedy, sovereign immunity, human rights, time barred, conspired, removal, cause of action, plaintiff's claim, civil rights, retaliate, lawsuit, hybrid, right to sue letter, probable cause, discriminatory, grounds, Notice Counsel: [*1] For The Hotel Plaza Athenee, NYC, Defendant: Judith A. Stoll, LEAD ATTORNEY, Kane Kessler, P.C., New York, NY. For Equal Employment Opportunity Commission, Inc., Defendant: Bertrand Rolf Madsen, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY. For The New York Hotel & Motel Trades Council, AFL- CIO/ Local 6 Union, Defendant: Barry Neal Saltzman, Pitta & Giblin, LLP, New York, NY. Judges: ALISON J. NATHAN, United States District Judge. Opinion by: ALISON J. NATHAN Opinion MEMORANDUM AND ORDER ALISON J. NATHAN, District Judge: Plaintiff, Racquel McPherson, brings this action alleging that her employer, Hotel Plaza Athenee ("the Hotel"), discriminated against her on the basis of her race and breached the terms of a collective bargaining agreement. (Compl. ¶¶ 7-9). Plaintiff further alleges that her union, The New York Hotel & Motel Trades Council. AFL-CIO/Local 6 Union ("the Union"), failed in its duty to fairly represent her in challenging this discrimination and conspired with the Hotel to retaliate against her for making complaints. (Compl. ¶¶ 10-17). Additionally, Plaintiff alleges that the Equal Opportunity and Employment Commission ("EEOC") and the New York State Division of Human Rights [*2] ("NYSDHR") failed to adequately investigate her complaints and conspired to violate her civil rights. (Compl. ¶¶ 23, 26-27). For the reasons that follow, the Court GRANTS the Motion to Dismiss submitted by the EEOC and the Motions for Judgment on Pleadings submitted by the Hotel and the Union. The claims against the NYSDHR are DISMISSED in part and REMANDED in part to the Supreme Court of New York, County of New York. I. STANDARD OF REVIEW In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in favor of the non-moving party. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).1 The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the 1 Because the Hotel and the Union previously submitted Answers to Plaintiff's Complaint, their Motions for Judgment on the Pleadings are brought pursuant to 12(c), in consideration of which the Court applies the same standard as it does to motions brought pursuant to Rule 12(b)(6). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001); Accelecare Wound Ctrs., Inc. v. Bank of N.Y., 2009 U.S. Dist. LEXIS 71862, 2009 WL 2460981, at *4 (S.D.N.Y. Aug. 11, 2009). Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 2 of 7 Page 2 of 6 WILLIAM SCOTT misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). "In considering a motion to dismiss for failure to state a claim pursuant [*3] to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Because Plaintiff is proceeding pro se, her submission is construed liberally "to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). II. BACKGROUND A. Facts The following facts are alleged in the Complaint and the Court accepts them as true for purposes of this opinion. Plaintiff was hired by the Hotel in September of 2007. (Compl. ¶ 4).2 Plaintiff claims that later [*4] on the same day that she was hired, the Hotel hired another new employee and permitted that other new employee to begin working two days before Plaintiff, thereby unfairly conferring the other employee with seniority over Plaintiff. (Compl. ¶¶ 4-6). Plaintiff alleges that the Hotel made this decision because of "ethnicity and skin tone." (Compl. ¶ 7). In December of 2008, Plaintiff was told that she would be placed on a reduced work week. (Compl. ¶ 8-9). [*5] "Plaintiff decided to contact [the Union] to inquire in regards to the issue above....to find out if the Hotel could in fact do this." (Compl. ¶ 10). "The hotel and the Union seemed to resent Plaintiff's inquiries" and Plaintiff alleges that she was "completely laid off for a week" in retaliation for her inquiries. (Compl. ¶¶ 11-12). 2 Attached to the Notice of Removal are what appear to be two complaints, both filed in the Supreme Court of New York, County of New York on January 9, 2012. (See Docket # 1). The first document is the Complaint in this action, which contains thirty-five numbered paragraphs detailing claims against the Hotel, the Union, the EEOC, and the NYSDHR. The second document takes the form of a complaint and further explains why Plaintiff feels aggrieved. Counsel for the Union, which removed this case, explains in a sworn declaration that both documents were served on his client together. (Saltzman Decl. ¶ 2). For purposes of this opinion, the Court deems the second document as incorporated into the Complaint and therefore part of the Complaint. Plaintiff was rehired a week later, but she was put on a different shift even though there were still positions available on her prior shift. (Compl. ¶ 12). On May 14, 2009, Plaintiff filed "an official complaint" with the Union. (Compl. ¶ 13). Plaintiff alleges that the Union did not follow up with her but instead contacted her employer. (Compl. ¶¶ 14-15). Suspicious of the Union, Plaintiff contacted the EEOC and the NYSDHR. (Compl. ¶ 16). Ultimately, in 2010, the NYSDHR concluded that there was no probable cause for Plaintiff's complaint. (Compl. ¶ 20). Similarly, on July 2, 2010, the EEOC closed Plaintiff's administrative complaint and sent Plaintiff a "right to sue letter." (Compl. ¶¶ 16, 26-27; Stoll Decl. Ex. E). B. Procedural Posture Plaintiff commenced the present action in the Supreme Court of New York, County of New York on January 9, 2012, and the [*6] Union sought to remove it to this Court on February 1, 2012. (Docket # 1). On February 9, 2012, the Court issued an Order requesting "clarification and elaboration" for the Union's assertion that subject matter jurisdiction exists in this Court. (Docket #11). On February 15, 2012, Plaintiff submitted four documents to the Court: (1) a "Motion to Remand" (Docket # 12), (2) an "Affirmation in Support" of the Motion to Remand (Docket # 19), (3) an "Affirmation in Opposition" to removal (Docket # 20), and (4) a "Reply Affirmation in Support of Motion," which also opposed removal of this action (Docket # 21). Defendants submitted briefs in support of removal and in opposition to Plaintiffs Motion to Remand on February 23, 2012 (Docket #'s 13-18). On March 2, 2012, this Court denied Plaintiff's Motion to Remand (Docket # 22).3 3 Following this denial of Plaintiff's Motion to Remand, Plaintiff filed a lawsuit in the Supreme Court of New York, County of New York against the undersigned Judge and the Southern District of New York. Then, on March 28, 2012, Plaintiff filed a "Motion to Remove Judge Nathan from Presiding Over This Case" (Docket # 26) and a "Motion to Remove This Case from Being [*7] Heard in the Southern District of New York" (Docket # 27), both of which the undersigned denied (Docket # 25). Plaintiff has subsequently filed additional lawsuits against the undersigned, other Judges in the district, and the entire Southern District of New York alleging, inter alia, "judicial misconduct." See, e.g., McPherson v. Nathan, et al, No. 12- CV-6438 (Docket #1) (S.D.N.Y. Aug. 23, 2012). Plaintiff's brief opposing the present motions notes that "Plaintiff has repeatedly requested in the fairness of Justice for Judge Nathan as well as the Southern District Court of New York to Remove/RECUSE themselves from this hearing/proceeding 2012 U.S. Dist. LEXIS 127822, *2 Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 3 of 7 Page 3 of 6 WILLIAM SCOTT The EEOC filed a Motion to Dismiss on April 20, 2012, and the Union and the Hotel subsequently filed Motions for Judgment on the Pleadings on April 26, 2012. No attorney [*8] for the NYSDHR has noticed an appearance in the federal action, although they consented to removal and submitted a timely Answer prior to removal. (Notice of Removal ¶20, Ex. B). The present motions became fully briefed on June 1, 2012. III. PLAINTIFF'S DISCRIMINATION CLAIMS AGAINST THE HOTEL MUST BE DISMISSED AS TIME BARRED AND AS BARRED BY PLAINTIFF'S ELECTION OF REMEDIES The Court reads the Complaint as alleging three causes of action against the Hotel for discrimination in violation of: A. Title VII B. The New York State Human Rights Law ("NYSHRL"), and C. The New York City Human Rights Law ("NYCHRL"). A. Plaintiff's Title VII Claim is Time Barred A Title VII claim must be brought within 90 days of a plaintiff receiving a right to sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(i); see also Copeland v. Rosen, 25 F. App'x 17, 19 (2d Cir. 2001). Plaintiff alleges in her Complaint that she learned of the EEOC's rejection of her claim by receipt of a letter dated "July 14, 2014 [sic]" (Compl. ¶ 26). However, the right to sue letter is dated July 14, 2010.4 The right to sue letter clearly informed Plaintiff that "[y]our lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice." [*9] (Stoll Decl. Ex. E) (emphasis in original). Yet Plaintiff did not commence the present action until January 9, 2012, over one and one half Years later. [sic]...." (Opp. Br. at 1) (emphasis in original). However, a lawsuit initiated by a litigant against a judge based on official actions that are protected by the doctrine of judicial immunity "will not disqualify the judge from continuing to preside over [an] earlier, unrelated matter brought by the same litigant." U.S. Courts Committee on Codes of Conduct, Advisory Opinion No. 103. 4 Defendant Hotel Plaza Athenee supplied this "right to sue letter" for the Court's review, and the Court may consider it because it is a document incorporated by reference into Plaintiff's Complaint. Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002). Under these circumstances, Plaintiff's Title VII claim against the Hotel is time barred and must be dismissed. To the extent that the Complaint alleges that the Hotel, the Union, the EEOC, and the NYSDHR all conspired with each other to retaliate against Plaintiff in violation of Title VII, (see Compl. ¶¶ 27-28), these claims are time barred as well. B. The Claim for Violation of the NYSHRL Must be Dismissed Because of Plaintiff's Election of Remedies The NYSHRL contains an "election of remedies" clause, pursuant to which an individual who commences an administrative action alleging discrimination may not subsequently commence an action in court based on that discrimination unless the administrative action is dismissed on technical or administrative grounds. The NYSHRL's "election [*10] of remedies" clause states: Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, . . . and such other remedies as may be appropriate . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed. New York Executive Law § 297(9); see also Fed. Reserve Bank of N. Y., 58 F.3d 879, 882 (2d Cir. 1995) (holding that an individual who files a complaint with the NYSDHR loses the ability to file a complaint in court even if she withdraws her administrative complaint) (citing Emil v. Dewey, 49 N.Y.2d 968, 406 N.E.2d 744, 428 N.Y.S.2d 887 (1980)). Plaintiff alleges in her Complaint that on June 16, 2009, Plaintiff filed a complaint with the NYSDHR based on the same conduct that is at issue in the [*11] present case. (Compl. ¶¶ 16-22, Exs. A-B). The NYSDHR ultimately determined that there was no probable cause to substantiate Plaintiff's allegations. (Comp. ¶ 20). As the NYSDHR reached a conclusion on grounds other than those enumerated in § 297(9), Plaintiff is barred from bringing a federal lawsuit. Illie-Stout v. Barrier Free Living, Inc., 2009 U.S. Dist. LEXIS 1986, 2009 WL 2012 U.S. Dist. LEXIS 127822, *7 Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 4 of 7 Page 4 of 6 WILLIAM SCOTT 81151, at *1 (S.D.N.Y. Jan. 12, 2009) ("Unless the claim is dismissed by the administrative body for one of the enumerated procedural reasons, the election of remedies provision under the NYSHRL presents an 'insuperable jurisdictional bar' to a federal court hearing a claim that has already been litigated in the state administrative forum.") (Lynch, J.); see also Moodie v. Fed. Reserve Bank of N. Y, 58 F.3d 879, 883-84 (2d Cir. 1995). As such, Plaintiff's claim against the Hotel for violation of the NYHRL must be dismissed. C. Plaintiff's Claim for Violation of the NYCHRL Must be Dismissed Because of Plaintiff's Election of Remedies The Complaint also makes out a cause of action for violation of the New York City Human Rights Law ("NYCHRL"). See N.Y.C. Admin. Code § 8-502 (the "NYCHRL"). The NYCHRL contains an election of remedies clause [*12] analogous to that of the NYSHRL, barring claims when a plaintiff "has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice or act of discriminatory harassment." N.Y.C. Admin. Code § 8- 502(a); see also York v. Ass'n of the Bar of the City of N.Y., 2001 U.S. Dist. LEXIS 9457, 2001 WL 776944 (S.D.N.Y. July 11, 2001) ("The language of the [NY]CHRL is nearly identical to that of § 297(9) and bars a person who has filed a complaint with either the city human rights agency or the [New York Division of Human Rights] from filing a plenary judicial action under the [NY]CHRL as well.") (Chin, J.); see also Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 187-88 (S.D.N.Y. 2011) (same) (Engelmayer, J.). As a result, because Plaintiff filed a complaint with the NYSDHR with respect to the unlawful discriminatory practices alleged in the Complaint in the present case, Plaintiff's claim against the Hotel for violation of the NYCHRL must also be dismissed. IV. PLAINTIFF'S HYBRID CLAIM AGAINST THE HOTEL AND THE UNION MUST BE DISMISSED AS TIME BARRED Construed liberally, the Court reads the Complaint also as asserting a [*13] so-called "hybrid § 301/fair representation" claim against the Hotel and the Union. "A hybrid case is one in which the employee has a cause of action against both the employer and the union." McKee v. Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir. 1989). In such a hybrid case, the claim against the employer is for violating the terms of a collective bargaining agreement pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 160(b), and the claim against the union is for violating its duty of fair representation contrary to Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). McKee, 874 F.2d at 86. A hybrid § 301/fair representation claim is subject to a six-month statute of limitations. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 170-72, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983); Carrion v. Enterprise Ass'n, Metal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000). This six-month period "begins to run when the employee knew or should have known of the breach of the duty of fair representation." White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997). The law in the Second Circuit "is well settled that a continuous or ongoing failure by the union to represent a plaintiff after the plaintiff knows or [*14] should know of the breach does not toll the statute of limitations." Strassberg v. N.Y. Hotel & Motel Trades Council, 31 F. Appx. 15 (2d Cir. 2002) (summary order). Plaintiff alleges that she signed certain "Premium Pay Waiver Forms ... due to the threats made by management [of the Hotel] of plaintiff losing her Benefits [sic]" (Compl. ¶ 9). Plaintiff alleges that after she began working a reduced number of days each week in 2009, she contacted the Union "to find out if the Hotel could in fact do this." (Compl. ¶ 10). However, Plaintiff avers that "no one from the Union Office ever bothered contacting her personally, NOT that day, the next day or the following day after that." (Compl. ¶ 15) (emphasis in original). Plaintiff alleges that she became "a little suspicious of the Union" (Compl. ¶ 16) and came to believe that "the hotel and The Union were conspiring together to enrich other Union Members who assisted them in Retaliating Against [Plaintiff] for their efforts [sic]." (Compl. ¶ 17). Plaintiff alleges that "due to ALL this unscrupulous and suspicious activity" on the part of the Union and her employer, she wrote a letter to then-Attorney General Cuomo. (Compl. ¶ 28) (emphasis [*15] in original). Plaintiff alleges that thereafter, on July 27, 2010, she received a reply letter from Attorney General Cuomo's office. (Compl. ¶ 30). The allegations in the Complaint therefore indicate that Plaintiff was aware of the alleged improper conduct on the part of the Union and the Hotel at least by July 27, 2010. Yet she did not commence the present action until January 9, 2012, over fifteen months 2012 U.S. Dist. LEXIS 127822, *11 Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 5 of 7 Page 5 of 6 WILLIAM SCOTT later. Plaintiff's hybrid claim against the Hotel and the Union therefore must be dismissed as time barred. V. THE CLAIMS AGAINST THE EEOC ARE BARRED BY THE DOCTRINE OF SOVEREIGN IMMUNITY The Court reads the Complaint as asserting two causes of action against the EEOC. First, Plaintiff alleges that the EEOC conspired with others to retaliate against her, apparently in violation of Title VII. (Compl. ¶¶ 24-27). Second, Plaintiff alleges that the EEOC conspired with others to violate her constitutional rights in violation of 42 U.S.C. § 1985(3). (Id.). "[T]he United States, as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S. Ct. 981, 134 L. Ed. 2d 47 (1996). [*16] Waiver of sovereign immunity must be "unequivocally expressed in the statutory text." Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S. Ct. 687, 142 L. Ed. 2d 718 (1999) (internal quotation marks omitted). The Second Circuit has held that sovereign immunity bars Title VII and § 1985 claims against the EEOC. Haynes v. Quality Markets, 307 F. App'x 473, 475 (2d Cir. 2008) ("[T]he United States has not waived sovereign immunity for claims against the EEOC ... brought pursuant to 42 U.S.C. §§ 1985 and 1986."); Baba v. Japan Travel Bureau Int'l, 111 F.3d 2, 6 (2d Cir. 1997) ("Title VII provides no express or implied cause of action against the EEOC for claims that the EEOC failed properly to investigate or process an employment discrimination charge."). Furthermore, to the extent that Plaintiff alleges any other unspecified cause of action deriving from the EEOC's alleged failure to adequately investigate her claim, such a claim is barred by the doctrine of sovereign immunity because "Courts have repeatedly held that the United States has not waived sovereign immunity for suits against the EEOC based on the EEOC's handling of an employment discrimination charge." McKoy v. Potter, 2009 U.S. Dist. LEXIS 39623, 2009 WL 1110692, at *5 (S.D.N.Y. Apr. 21, 2009) [*17] (Castel, J.); see also D'alessandro v. EEOC, 215 F. Supp. 2d 419, 421-22 (D. Del. 2002) (holding that plaintiff's claim against the EEOC for negligence in its investigation of plaintiff's complaint against her employer was barred by sovereign immunity); Uberoi v. EEOC, 180 F. Supp. 2d 42, 46 (D.D.C. 2001) ("Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or other malfeasance in processing an employment discrimination charge."). In short, the EEOC is protected by sovereign immunity and the claims against the EEOC must be dismissed. VI. THE CLAIMS AGAINST THE NYSDHR ARE DISMISSED IN PART AS TIME BARRED AND REMANDED IN PART Plaintiff appears to accuse the NYSDHR of violating her civil rights and conspiring to violate her civil rights in violation of 42 U.S.C. §§ 1983, 1985. (Compl. ¶¶ 18-24, 27-28).5 Plaintiff also seeks judicial review of the NYSDHR's "no probable cause" finding with regards to Plaintiff's administrative complaint. (Compl. ¶¶ 18-24, 27-28, 33). The NYSDHR submitted an Answer in the state court proceedings on January 23, 2012, asserting that Plaintiff's request for judicial review of the administrative [*18] proceeding is time barred. (Docket # 1 at 26-27). No attorney representing the NYSDHR has entered a notice of appearance in the federal case. Because the NYSDHR submitted a timely responsive pleading prior to removal, it is not required to re-plead after removal. Fed. R. Civ. P. 81(c)(2). A. Plaintiff's Civil Rights Claims Against the NYSDHR are Barred by the Eleventh Amendment Federal civil rights lawsuits against the NYSDHR are barred by the Eleventh Amendment. See, e.g., Gonzalez v. N.Y. State Div. of Human Rights, 2011 U.S. Dist. LEXIS 114662, 2011 WL 4582428, at *3 (S.D.N. Y. Sept. 29, 2011) (Pauley, J.); Benzo v. N. Y. State Div. of Human Rights, 1997 U.S. Dist. LEXIS 901, 1997 WL 37961, at *10 (S.D.N.Y. Jan. 31, 1997) (Preska, J.); Sanders v. N.Y. State Div. of Human Rights, 1991 U.S. Dist. LEXIS 18617, 1991 WL 278831, at *1 (S.D.N.Y. Dec. 26, 1991) (Mukasey, J.); cf. Baba v, Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997) (equitable claims against NYSDHR barred by the Eleventh Amendment); Feingold v. N.Y. Dep't of Motor Vehicles, 366 F.3d 138, 149 (2d Cir. 2004) (holding that [*19] the Eleventh Amendment bars § 1983 actions against the 5 As previously discussed, Plaintiff's allegations against the NYSDHR for conspiring to retaliate against her in violation of Title VII are time barred. See Section III.A supra. 2012 U.S. Dist. LEXIS 127822, *15 Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 6 of 7 Page 6 of 6 WILLIAM SCOTT New York Department of Motor Vehicles "because the DMV is a state agency"). Thus, Plaintiff's claims against the NYSDHR brought pursuant to 42 U.S.C. §§ 1983, 1985 for violating her civil rights and conspiring to violate her civil rights must be dismissed. B. The Petition for Judicial Review the NYSDHR's "No Probable" Determination is Remanded to the Supreme Court of New York, County of New York Pursuant to NY Executive Law § 298, an administrative determination by the NYSDHR may be appealed to the Supreme Court of New York, but such an appeal "shall be brought in the supreme court in the county wherein the discriminatory practice . . . occurs," and the jurisdiction of such a court is "exclusive." N.Y. Executive Law § 298. Thus, "once a plaintiff brings a case before the NYSDHR, he or she may appeal only to the Supreme Court of State of New York." York v. Assoc, of Bar of City of N. Y., 286 F.3d 122, 127 (2d Cir. 2002); see also Illie-Stout v. Barrier Free Living, Inc., 2009 U.S. Dist. LEXIS 1986, 2009 WL 81151, at *2 (S.D.N.Y. Jan. 12, 2009) (Lynch, J.) (federal courts lack jurisdiction "to review the administrative decision[s]" of the NYSDHR). Because the Court [*20] lacks jurisdiction to review the NYSDHR's administrative determination, the petition for a review of the NYSDHR's "no probable cause" determination is remanded to the Supreme Court of New York, County of New York, from which it was removed. CONCLUSION For the foregoing reasons, the claims against the Hotel, the Union, and the EEOC are all DISMISSED with prejudice because no amendments to the complaint could cure the statute of limitations, election of remedies, and sovereign immunity infirmities discussed in this opinion. The federal civil rights claims against the NYSDHR are DISMISSED with prejudice and the remaining Petition for Judicial Review of the "no probable cause" determination is REMANDED to the Supreme Court of New York, County of New York. The Clerk of Court is instructed to close this case. SO ORDERED. Dated: Sept 4, 2012 New York, New York /s/ Alison J. Nathan ALISON J. NATHAN United States District Judge End of Document 2012 U.S. Dist. LEXIS 127822, *19 Case 3:15-cv-00692-LEK-DEP Document 82-4 Filed 11/02/16 Page 7 of 7 Case 3:15-cv-00692-LEK-DEP Document 82-5 Filed 11/02/16 Page 1 of 2 Case 3:15-cv-00692-LEK-DEP Document 82-5 Filed 11/02/16 Page 2 of 2 Case 3:15-cv-00692-LEK-DEP Document 82-6 Filed 11/02/16 Page 1 of 2 Case 3:15-cv-00692-LEK-DEP Document 82-6 Filed 11/02/16 Page 2 of 2 Case 3:15-cv-00692-LEK-DEP Document 82-7 Filed 11/02/16 Page 1 of 3 Case 3:15-cv-00692-LEK-DEP Document 82-7 Filed 11/02/16 Page 2 of 3 Case 3:15-cv-00692-LEK-DEP Document 82-7 Filed 11/02/16 Page 3 of 3 Case 3:15-cv-00692-LEK-DEP Document 82-8 Filed 11/02/16 Page 1 of 4 Case 3:15-cv-00692-LEK-DEP Document 82-8 Filed 11/02/16 Page 2 of 4 Case 3:15-cv-00692-LEK-DEP Document 82-8 Filed 11/02/16 Page 3 of 4 Case 3:15-cv-00692-LEK-DEP Document 82-8 Filed 11/02/16 Page 4 of 4 Case 3:15-cv-00692-LEK-DEP Document 82-9 Filed 11/02/16 Page 1 of 5 Case 3:15-cv-00692-LEK-DEP Document 82-9 Filed 11/02/16 Page 2 of 5 Case 3:15-cv-00692-LEK-DEP Document 82-9 Filed 11/02/16 Page 3 of 5 Case 3:15-cv-00692-LEK-DEP Document 82-9 Filed 11/02/16 Page 4 of 5 Case 3:15-cv-00692-LEK-DEP Document 82-9 Filed 11/02/16 Page 5 of 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK LUTFALLAH T SAWABINI, Plaintiff, -against- O'CONNOR HOSPITAL, et al., Defendants. DECLARATION OF SERVICE 15-CV-0692 DEP I, BRIANNE HERITAGE, declare pursuant to 28 USC § 1746, that on November 2, 2016, I served the Notice of Motion, Declaration of Caroline Downey, and a Memorandum of Law Supporting Defendants The New York State Division of Human Rights, Caroline Downey, Victor DeAmelia and Helen Torres’ 12(c) Motion for Judgment on the Pleadings, filed herein electronically upon the following individual, by depositing a true copy thereof, properly enclosed in a sealed, postpaid wrapper, in a post office box in the City of Albany, a depository under the exclusive care and custody of the United States Postal Service, directed to the individual at the address, designated for that purpose, as follows: Lutfallah T. Sawabini 11 Manatee Ave. Sidney, New York 13838 Dated: November 2, 2016 Albany, New York s/ Brianne Heritage BRIANNE HERITAGE Case 3:15-cv-00692-LEK-DEP Document 82-10 Filed 11/02/16 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK LUTFALLAH T. SAWABINI, Plaintiff, -against- O’CONNOR HOSPITAL, et al. Defendants. DECLARATION OF SERVICE 15-cv-0692 (LEK/DEP) I, William A. Scott, declare pursuant to 28 USC § 1746, that on November 2, 2016, I served the annexed Notice of Motion, Memorandum of Law and Declaration of Caroline Downey upon the following parties, through their counsel, and via the Court’s CM/ECF system: Stephanie M. Caffera, Esq. Kimberly Harding, Esq. Nixon, Peabody Law Firm - Rochester Office 1300 Clinton Square Rochester, NY 14604-1792 585-263-1066 Email: scaffera@nixonpeabody.com, kharding@nixonpeabody.com Christine D’Addio Hanlon, Esq. Law Office of Hanlon & Veloce 1187 Troy-Schenectady Road, 3rd Floor Latham, NY 12110 518-313-4070 Christine.Hanlon@cna.com Dated: November 2, 2016 Albany, New York S/William A. Scott WILLIAM A. SCOTT 1 Case 3:15-cv-00692-LEK-DEP Document 82-11 Filed 11/02/16 Page 1 of 1