Burke v. Katz et al
Filing
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ORDER granting Defendants' 14 Motion to Dismiss. See attached opinion. The Clerk is directed to close the case file. Signed by Judge Vanessa L. Bryant on 1/16/15. (Nadler, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTOPHER BURKE,
Plaintiff,
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v.
JOETTE KATZ,
JOYCE WELCH,
MICHAEL WOOD,
BRENDA PARTYKA
Defendants.
CIVIL ACTION NO.
3:14-CV-01257 (VLB)
January 16, 2015
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ [Dkt. #14] MOTION TO
DISMISS
I.
Introduction and Factual Background
Plaintiff Christopher Burke (“Burke”), an African-American male, brings
this discrimination and retaliation action under 42 U.S.C §§ 1981 and 1983 against
Defendants Joette Katz ( “Katz”), Michael Wood (“Wood”), and Brenda Partyka
(“Partyka”), employees of the State of Connecticut Department of Children and
Families (“DCF”), and Joyce Welch (“Welch”), the superintendent of Riverview
Hospital, in their official and individual capacities.
Prior to his termination in March 2009, Burke was employed by DCF as a
child services worker (“CSW”). [Dkt. #1, Compl. at ¶ 11]. As a CSW, Burke was
assigned to work in the children’s psychiatric residential treatment and
evaluation program at Riverview Hospital. [Id. at ¶ 12]. On or about December 28,
2008, three female children at Riverview Hospital made a claim of misconduct
against Burke. [Id. at ¶ 15]. Thereafter, DCF investigated the claim. [Id. at ¶ 16].
Two of the defendants, Wood and Partyka, participated in the investigation. [Id.
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at ¶¶ 17, 19]. During the course of this investigation, several Caucasian workers
alleged that Burke had engaged in sexual harassment or other inappropriate
conduct. [Id. at ¶ 20]. However, Burke asserts that those allegations were false,
concerned events that had allegedly occurred several years prior to the
investigation, and were generated for the purpose of disproportionately
disciplining him on the basis of his race. [Id. at ¶¶ 20, 21, 25, 27]. Following the
investigation, on March 18, 2009, Burke was terminated for his alleged
misconduct, which included neglect of duty and sexual harassment. [Id. at ¶ 22].
Burke asserts that his termination was racially motivated because “similarly
situated Caucasian employees who have been accused of inappropriate conduct
including sexual harassment of staff and employment related misconduct have
not been terminated.” [Id. at ¶ 23].
Burke filed his Complaint on September 1, 2014—over five years after he
was terminated. [Id. at 1]. The Complaint brings two counts of employment
discrimination and one count of retaliation under section 1983, and one count
each of employment discrimination and retaliation under section 1981. [Id. at 56]. On November 25, 2014 the Defendants moved to dismiss the Complaint. See
[Dkt. #14]. Defendants contend that the Complaint must be dismissed because
each of Burke’s claims is barred by the applicable statute of limitations. [Dkt.
#14-1 at 3]. Defendants also maintain that Burke’s claims against them in their
official capacities are precluded by the Eleventh Amendment and insufficient
service of process. [Id. at 4-5]. Burke did not submit any opposition to the
Defendants’ motion. Burke similarly failed to respond to the Defendants’ Motion
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to Stay Discovery, which was filed on December 1, 2014, see [Dkt. #15], and was
predicated on the likely dismissal of his claims as time-barred. See [Dkt. #15-1 at
2-3].
Burke’s inaction is particularly troubling because the Court had expressly
ordered Burke to submit a response to the Motion to Stay. [Dkt. #16]. The Order
also alerted Burke to the Court’s concern that his claims might be time-barred
and the basis for its concern. [Id.]. Yet no response was ever submitted. The
Defendants have since filed a second Motion to Dismiss, based on Burke’s failure
to comply with this Court’s Order and their position that his claims are timebarred. See [Dkt. #18]. Burke has not responded to this filing either.
Notwithstanding the Defendants’ motions and this Court’s prompting, Burke
continues to offer no support for his position that his claims are timely. For the
reasons that follow, Defendants’ Motion to Dismiss is GRANTED.
II.
Standard of Review
“‘To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
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‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (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.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “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.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). The Court may also consider “matters of which
judicial notice may be taken” and “documents either in plaintiffs' possession or
of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am.
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Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn. 2005).
III.
Analysis
a. Burke’s Claims Under Sections 1983 and 1981 Are Time-Barred
42 U.S.C. § 1981 prohibits discrimination “with respect to the enjoyment of
benefits, privileges, terms, and conditions of a contractual relationship, such as
employment.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004). To
successfully plead a section 1981 employment discrimination claim, a plaintiff
must show: (1) that he is a member of a protected class; (2) he was qualified for
his position; (3) that he suffered an adverse employment action; and (4) the
circumstances of the adverse action give rise to an inference of discrimination
based on his membership in the protected class. Hyunmi Son v. Reina Bijoux,
Inc., 823 F. Supp. 2d 238, 242 (S.D.N.Y. 2011).
Section 1981 also provides a cause of action for individuals who are
retaliated against for complaining about discrimination. See Fouche v. St.
Charles Hospital, No. 14-CV-02492 (ADS)(ARL), 2014 WL 6980021, at *4 (E.D.N.Y.
Dec. 10, 2014). A section 1981 retaliation claim requires proof of the same
substantive elements as a Title VII retaliation claim, which are (1) the plaintiff’s
participation in a protected activity; (2) the defendant’s knowledge of the
protected activity; (3) an adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment action. Gomez v.
City of New York, No. 12-CV-6409 (RJS), 2014 WL 4058700, at *5 (S.D.N.Y. Aug. 14,
2014).
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The statute of limitations applicable to a section 1981 claim depends on
whether the claim was made possible by a post-1990 enactment to section 1981.
If so, the statute of limitations is four years, pursuant to the catchall provision in
28 U.S.C. § 1658(a). See Hardy v. Town of Greenwich, No. 3:06cv833 (MRK), 2008
WL 5117370, at *9 (D. Conn. Dec. 3, 2008). Otherwise, the statute of limitations
applicable to such a claim arising in Connecticut is three years. See Lewis v.
State of Connecticut Dep’t of Corrections, 355 F. Supp. 2d 607, 621 n. 10 (D. Conn.
2005). A plaintiff’s section 1981 claim accrues, and the limitations period begins
to run, when the plaintiff has notice of the act that is claimed to have caused the
injury. Anatsui v. Food Emporium, No. 99 Civ. 1337 (JGK), 2000 WL 1239068, at *5
(S.D.N.Y. Sept. 1, 2000) (quotation and citation omitted). In the employment
context, claims typically accrue on the date the employer notifies the employee
that he is being terminated. See Copeland v. New York City Bd. of Educ., No. 03
Civ. 9978 (DAB), 2005 WL 3018267, at *4 (S.D.N.Y. Nov. 8, 2005).
Section 1983 prohibits persons acting under color of state law from
depriving individuals of rights, privileges, and immunities secured by the United
States Constitution and statutes. Gibbs-Alfano v. Burton, 281 F.3d 12, 16 (2d Cir.
2002). Claims of employment discrimination and related retaliation under section
1983 require proof of the same elements as such claims brought under section
1981. See Taylor v. Waterbury Bd. of Educ., No. 3:05-cv-01039 (WWE), 2007 WL
1306546, at *2 (D. Conn. May 3, 2007) (reciting the elements of a section 1983
employment discrimination claim); Benjamin v. City of Yonkers, No. 13 CV 8699
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(VB), 2014 WL 6645708, at *3 (S.D.N.Y. Nov. 24, 2014) (articulating the elements of
a retaliation claim under section 1983).
Section 1983 claims which arise in Connecticut are governed by a threeyear statute of limitations. Woodbury v. Johnson, No. 3:13-CV-912 (JCH), 2014
WL 2871583, at *2 (D. Conn. Jun. 23, 2014). Section 1983 claims accrue when the
conduct causes harm and the claimant knows or has reason to know of the
conduct and the resulting harm. Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994). In
the context of a wrongful termination where violations of civil rights are asserted,
the limitations period begins to run when the employee receives notice that the
adverse decision has been made. Halpern v. Bristol Bd. of Educ., 52 F. Supp. 2d
324, 329 (D. Conn. 1999).
The discriminatory conduct which forms the basis of Burke’s claims
commenced sometime after December 28, 2008, when the female patients made
their complaint against him, and ceased on March 18, 2009, when he was fired.
See [Dkt. #1 at ¶¶ 15, 22]. Burke filed his Complaint on September 1, 2014, see
[id. at 1], over five years after his termination date. Accordingly, none of his
claims are timely. See Lawson v. Rochester City School Dist., 446 Fed. App’x
327, 328 (2d Cir. 2011) (affirming district court’s dismissal of section 1981 and
1983 claims on statute of limitations grounds where the adverse employment
actions, which included an internal investigation and the plaintiff’s termination,
occurred more than four years prior to the initiation of the lawsuit).
While the Complaint does allege that from “January 1, 1998 to the present,”
“DCF has [had] a policy, pattern and practice of subjecting . . . African-American
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male employees to harsher discipline,” [Dkt. #1, Compl. at ¶ 28], and has
“engage[d] in an unlawful pattern of racial discrimination in its recruitment, hiring
and discipline of black, African American social workers,” [id. at ¶ 29], these
allegations are not sufficient to extend the limitations period of Burke’s claims
beyond his termination date for at least two reasons. First, the allegations do not
trigger the continuing violation doctrine. Second, as an individual litigant and not
as a representative of a class, Burke is precluded from bringing a pattern-orpractice of discrimination claim.
The continuing violation doctrine holds that, “if a plaintiff has experienced
a continuous practice and policy of discrimination, . . . the commencement of the
statute of limitations period may be delayed until the last discriminatory act in
furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001)
(quotations and citations omitted).1 However, where applicable, “the continuing
violation doctrine [] implicate[s] only those acts directly affecting [the] plaintiff[].”
Washington v. County of Rockland, 373 F.3d 310, 318 n.3 (2d Cir. 2004). As Burke
was terminated on March 18, 2009, discriminatory acts taken after this date by
DCF, a non-party, would not have directly affected him. See Chahales v. City of
New York, No. 04-CV-4268 (SLT), 2006 WL 681210, at *5 (E.D.N.Y. Mar. 15, 2006)
(declining to apply continuing violation doctrine where the discriminatory
conduct that was timely merely benefited one of the defendants and “did not
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Although developed in the Title VII context, courts in this Circuit apply the
continuing violation doctrine to section 1981 and 1983 claims. See, e.g.,
Melchner v. Town of Carmel, No. 13 CV 8164 (VB), 2014 WL 6665755, at *2
(S.D.N.Y. Nov. 21, 2014) (applying doctrine to section 1983 claim); Thompson v.
Metro. Life Ins. Co., 149 F. Supp. 2d 38, 54-55 (S.D.N.Y. 2001) (applying doctrine to
section 1981 claim).
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affect plaintiff”). Therefore, Burke cannot rely on any post-termination conduct to
toll the statute of limitations.
Burke also may not repackage his untimely claims together with
subsequent timely claims under a pattern-or-practice theory, because this liability
theory is not available to private, non-class plaintiffs, like Burke. See Chin v. Port
Auth. of N.Y. & N.J. Inc., 685 F.3d 135, 146 (2d Cir. 2012) (“[N]o such pattern-orpractice theory of liability is available to [] private, non-class plaintiffs.”); see also
Deras v. Metro. Transp. Authority, No. 11-CV-5912 (RRM) (CLP), 2013 WL 1193000,
at *7 n.3 (E.D.N.Y. Mar. 22, 2013) (dismissing pattern-or-practice claim filed by a
private non-class plaintiff without leave to replead); accord Daniels v. United
Parcel Service, Inc., 701 F.3d 620, 632 (10th Cir.2012) (collecting cases across
several circuits)
IV.
Conclusion
For the foregoing reasons, the Defendants’ Motion to Dismiss [Dkt. #14] is
GRANTED. The Clerk is directed to close the case file.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: January 16, 2015
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