Arrocha v. City University of New York et al
MEMORANDUM AND ORDER, For the foregoing reasons, the 17 Motion to Dismiss is granted and all claims, both federal and state, are dismissed. Further, in light of the fact that Arrocha already repleaded his claims once after defts indicated their in tent to challenge the first complaint based on claim preclusion and because a liberal reading of the current complaint gives no indication that a valid claim could be stated if Arrocha were given the opportunity to file a third complaint, the dismissal is with prejudice as to all claims. The Clerk is directed to enter judgment and to close this case. (Ordered by Judge Eric N. Vitaliano on 7/08/2012) c/m Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSE LUIS ARROCHA,
MEMORANDUM AND ORDER
11-CV-03975 (ENV) (LB)
-againstTHE CITY UNIVERSITY OF NEW YORK,
MANUEL SENEN VIVERO, AND HOWARD
Pro se plaintiff Jose Luis Arrocha alleges defendants' refusal to hire him as an adjunct
Spanish lecturer stemmed from (1) discrimination based on race and skin color and
(2) retaliation for complaining about the alleged discrimination. His complaint asserts
(1) claims against the City University of New York ("CUNY") under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) claims against Manuel Senen
Vivero in both his professional and personal capacities under 42 U.S.C. § 1981 as enforced
through§ 1983; and (3) claims against Vivero in his personal capacity under New York State
E)[ecutive Law§ 290 et seq., Human Rights Law ("NYSHRL"), which the Court construes as
also including claims under New York City Admin. Code § 8-107 et seq., the New York City
Human Rights Law ("NYCHRL") (collectively, "HRL"). Although the complaint also names
Howard Johnson as a defendant, it does not assert any claims against him. Arrocha seeks, in
summary, a declaration that his rights have been violated, damages flowing from those alleged
violations, and an order enjoining Vivero, in his official capacity, from violating his rights.
Defendants have moved to dismiss, arguing (1) most of plaintiffs claims are timebarred; (2) none of plaintiff's claims are plausible; and (3) the complaint fails to state (or even
purport to state) any claim against Johnson. 1 For the reasons recounted below, the motion is
granted and all claims are dismissed with prejudice.
Arrocha, a self-described Panarnanian-American with a dark complexion, is currently
employed, as he has been for about 15 years, as a Spanish tutor at CUNY. See Arrocha v. City
Univ. of N.Y., No. 02-CV-1868 (SJF) (LB), 2004 WL 594981, at *1-2 (E.D.N.Y. Feb. 9,
2004) ("Arrocha I"); (Compl. at p. 1.) For four semesters in 1999 and 2000, Arrocha served as
an adjunct lecturer in the Spanish Department of CUNY's Medgar Evers College ("MEC"). Id.
After marginal teaching reviews in spring 1999 and spring 2000 and an unsatisfactory review in
fall 2000, CUNY elected not to reappoint Arrocha to the adjunct lecturer position for the spring
2001 semester. Id. On March 26,2002, Arrocha filed suit against CUNY and various CUNY
employees, including Vivero, alleging, in principal part, retaliation and discrimination based on
national origin and skin color. Arrocha I, 2004 WL 594981, at *2; (Compl.
defendants' motion for summary judgment, Judge Sandra Feuerstein dismissed Arrocha's
claims based on national original discrimination but allowed his claims based on skin color and
retaliation to proceed. Arrocha I, 2004 WL 594981, at *7-8. By consent of the parties,
Magistrate Judge Lois Bloom presided over a jury trial. And, on July 22, 2004, the jury found
After plaintiff opposed defendants' motion, defendants moved to preclude plaintiff from
presenting copies of student education records, which he submitted with his opposition papers,
allegedly in violation of the Federal Family Education Rights and Privacy Act ("FERPA"). On
referral, Magistrate Judge Lois Bloom denied defendants' motion but also, with the agreement
of the parties, restricted the records to case participants only. As Judge Bloom correctly
predicted, neither the restricted records nor her ruling affects the reasoning and result reported
in this Memorandum and Order.
for CUNY. Judgment in a Civil Case, Arrocha v. City Univ. of N.Y., No. 02-CV-1868 (SJF)
(LB) (E.D.N.Y. July 22, 2004). That is, the jury determined that CUNY had established lawful
justification for its decision not to reappoint him as an adjunct Spanish lecturer?
Undeterred, Arrocha promptly renewed his efforts, applying in 2005 for an adjunct
lecturer position at MEC-the very position title, the jury found, he had been denied for lawful
reasons. In 2006, after receiving no response to the 2005 application, he applied again and
asked Vivero about the status of his 2005 application. Vivero informed Arrocha that the 2005
application was not processed because Vivero had been waiting for legal advice on how to
proceed in light ofthe 2002 lawsuit. In 2007, having still not been hired, Arrocha repeatedly
asked Vivero about his application. Vivero informed Arrocha that he was free to re-apply and
would be given the same consideration as all other applicants under evaluation at that time.
Arrocha applied again that year and was again denied. In response to further questioning,
Vivero informed Arrocha that a college wide committee had rejected the 2007 application
without giving reasons. Still undeterred, Arrocha re-applied in 2009, this time with the support
of two letters of recommendation and a "student-petition letter." He was denied again.
Arrocha became convinced that his applications were being improperly rejected by
Vivero. He therefore directed his efforts up CUNY's administrative hierarchy, first with a dean
and then with defendant Johnson, a provost. During these efforts, and for the first time since
his 2002 lawsuit, he alleged discrimination and retaliation. Further, Arrocha provided the dean
In an apparent attempt to literally relitigate the 2002 lawsuit, plaintiffs first complaint
challenged CUNY's decision not to rehire him in 2000. After defendants filed a letter
indicating they intended to move to dismiss that complaint based on, inter alia, claim
preclusion, Arrocha amended his complaint to focus on conduct occurring after 2004 and
removed the claims directly challenging CUNY's decision not to rehire him in 2000. Except
for the above references to Arrocha's 2002lawsuit, the background facts are drawn only from
plaintiffs amended complaint, which is considered true for purposes of this motion.
with the name of a fair-skinned candidate who was hired over allegedly better qualified "Black
candidates" and told the dean that Vivero had transformed the department into a "light-skinned
Dissatisfied with the responses from these senior CUNY administrators, Arrocha
redirected his grievances outside of CUNY entirely. He filed a complaint with the United
States Equal Employment Opportunity Commission ("EEOC") on October 7, 2010. (Dkt. No.
22-2 at 31.) EEOC issued a right-to-sue letter on July 8, 2011 indicating it was unable to find a
violation of federal law. Moreover, EEOC found (I) other individuals who had been hired for
the lecturer positions were more qualified than Arrocha and (2) no causal connection existed
between Arrocha's previous complaints and CUNY's decision not to hire Arrocha in 2009.
(Dkt. No. 22-2 at 38-41.) After receiving his right-to-sue letter, he did precisely that?
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement ofthe
claim showing that the pleader is entitled to relief." This rule does not compel a litigant to
supply "detailed factual allegations" in support of his claims, Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007), "but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S. Ct.
1937, 1949 (2009). "A pleading that offers 'labels and conclusions' ... will not do." Id.
(quoting Twombly, 550 U.S. at 555); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89,
95 (2d Cir. 2007). "Nor does a complaint suffice if it tenders 'naked assertions' devoid of
'further factual enhancement."' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
The Court has reviewed plaintiffs letter dated June 5, 2012, which was also apparently sent
to, among others, President Martinelli of Panama and President Obama, but finds it irrelevant
to this motion.
Moreover, under Rule l2(b)(6), a complaint must be dismissed if it does not "contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."' Id. (quoting Twombly, 550 U.S. at 570). "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. Determining plausibility is "a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id. at 1950.
That said, the factual allegations are paramount as "a complaint need not pin plaintiffs
claim for relief to a precise legal theory" nor provide "an exposition of his legal argument."
Skinnerv. Switzer, 131 S. Ct.l289, 1296(2011). Inanalyzingwell-pledfacts,acourtwill
draw all reasonable inferences in favor of plaintiff. See Gorman v. Consol. Edison Com., 488
F.3d 586,591-92 (2d Cir. 2007). Further, on amotion to dismiss, a court may only consider
the pleading itself, documents that are referenced in the complaint, documents that the plaintiff
relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff
knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers
v. Time Warner, Inc., 282 F.3d 147, !53 (2d Cir. 2002); Int'l Audiotext Network, Inc. v. Am.
Tel.& Tel. Co., 62 F.3d 69,72 (2d Cir. 1995). Applicable here, in addition, because plaintiff is
not represented, district courts must construe pleadings and briefs submitted by pro se litigants
liberally and read them to raise the strongest arguments they suggest. Bertin v. United States,
478 F.3d 489, 491 (2d Cir. 2007).
Finally, should a district court find pleadings to be inadequate, Rule 15(a) provides that
the court should freely grant leave to amend those pleadings when justice so requires. But, a
district court correctly denies leave to amend "when an amendment is offered in bad faith,
would cause undue delay or prejudice, or would be futile." Leonelli v. Pennwalt Corp., 887
F.2d 1195, 1198 (2d Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227,230
(1962)). In the end, a court "should not dismiss [a prose complaint] without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated." Branum v. Clark, 927 F.2d 698,705 (2d Cir. 1991).
Only the § 1983 and HRL Claims based on the 2009 Re-Application are Timely
"Under Title VII ... , a plaintiff can sue in federal court only after filing timely charges
with the EEOC." McPherson v. New York City Dept. ofEduc., 457 F.3d 211, 213 (2d Cir.
2006). In New York, "the statute of limitations for filing a charge of discrimination with the
EEOC is 300 days after the alleged occurrence of an unlawful employment practice." Robles
v. Cox and Co .. Inc., 841 F. Supp. 2d 615,625 (E.D.N.Y. 2012). A refusal to hire is a discrete
act that accrues at the time of refusal. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
112-14, 122 S. Ct. 2061, 2072-73 (2002). Accordingly, in this case, only Title VII claims
accruing after December 11, 2009, i.e., 300 days before the filing of the EEOC charge, are
timely. Thus, as correctly determined by the EEOC, all Title VII claims based on the refusal to
hire Arrocha based on his 2005, 2006, and 2007 applications are time barred. The timeliness of
the Title VII claim based on the denial of the 2009 application is, at first glance, slightly less
certain because the complaint does not state exactly when in 2009 the application was rejected.
But, Arrocha does allege that he made the application in June 2009 and "was not hired in
16.) Almost certainly, this re-application sought appointment as an
adjunct for the fall2009 or spring 2010 semester. In either case, rejection would have come
well in advance of December 11, 2009, and perhaps, if for the fall semester, as early as July
2009. Arrocha himself confirms this analysis: he admits knowing in November 2009 that the
2009 application had been denied. (Plaintiff's Opposition at~~ 24-28.) Accordingly, all of
Arrocha's Title VII claims are dismissed as time barred.
Arrocha's § 1983 and HRL claims fare slightly better. Claims under§ 1983 and the
HRL do not need to be preceded by the filing of EEOC charges, see Patterson v. County of
Oneida, N.Y., 375 F.3d 206,225 (2d Cir. 2004); Fleming v. Verizon New York. Inc., 419 F.
Supp. 2d 455,467 (S.D.N.Y. 2005), and are subject to a three year statute oflimitations, ~
Owens v. Okure, 488 U.S. 235,239, 109 S. Ct. 573, 576 (1989); Fleming, 419 F. Supp. 2d at
467. Accordingly, claims accruing before August 16, 2008 are time barred, meaning only the
§ 1983 and HRL claims based on the rejection of the 2009 application are timely.
Plaintifrs Claims are Not Plausible
Section 1981, as enforced through § 1983, and HRL protect job applicants from, inter
ali~ (I) discrimination on the basis of race and color and (2) retaliation for complaining about
such discrimination. 5 See Hicks v. Baines, 593 F.3d !59, 164 (2d Cir. 2010); see also
Patterson, 375 F.3d at 224-25 (§ 1981, as enforced through§ 1983, protects job applicants from
Arrocha argues that his complaints to CUNY tolled the relevant limitations periods. But,
"[i]t has long been settled that a claim of employment discrimination accrues for statute of
limitations purposes on the date the employee learns of the employer's discriminatory conduct
[and] the pendency of a grievance, or some other method of collateral review of an employment
decision, does not toll the running of the limitations period." Kulkarni v. City Universitv of
New York, No. 01 CIV. 3019 (DLC), 2001 WL 1415200, at *4 (S.D.N.Y. Nov. 13, 2001)
(internal citations and quotations marks omitted). Further, as described below, because the
same threshold analysis applies to the timely claims and to the time-barred claims and because
the claims all depend on essentially the same facts, the time-barred claims are also dismissed
for the same reasons, given below, that the timely claims are dismissed.
The Eleventh Amendment bars § 1983 suits in federal court against "arms of the state" such
as CUNY and its senior colleges. Clissuras v. City University ofNew York, 359 F.3d 79, 81
(2d Cir. 2004). Thus, despite Arrocha's prose status, the Court does not construe Arrocha's
complaint as alleging any § 1983 claims against CUNY.
color-based discrimination); CBOCS W., Inc. v. Humphries, 553 U.S. 442,446, 128 S. Ct.
1951, 1954-54 (2008) (§ 1981 proscribes retaliation); Forrest v. Jewish Guild for the Blind, 3
N.Y.3d 295, 304, 313, 819 N.E.2d 998 (2004) (HRL proscribes retaliation and color-based
discrimination). Moreover, the same threshold analysis governs these claims regardless of the
applicable statute. 6 Acosta v. Citv ofNew York, No. 11 Civ. 856 (KBF), 2012 WL 1506954, at
*4-7 (S.D.N.Y. April26, 2012); see also Dixon v. Int'l Fed'n of Accountants, 416 Fed. App'x
107, 109 (2d Cir. 2011).
Plaintiff, pleading from the same sheet music panned by a jury in 2004, re-alleges he is
a dark-skinned Panamanian-American, (Compl. at 1), and that in 2009 he was once again
denied employment due to the color of his skin, (Compl.
16-28.) He contends that "at
least one" "fair skinned" applicant was hired over a better-qualified, darker-skinned applicant.
19.) Finally, he charges that Vivero was intentionally transforming the
department into a "light-skinned Latin club." (Compl.
17.) If considered in complete
isolation, these allegations would potentially state a plausible claim given the relatively easyto-satisfy standard applicable in employment discrimination pleadings. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514-15, 122 S. Ct. 992, 998-99 (2002); see also DiPetto v. U.S.
Postal Serv., 383 F. App'x 102, 103-04 (2d Cir. 2010) (applying Swierkiewicz to an
employment discrimination claim post Twombly).
The Court acknowledges that in some respects NYCHRL provides broader protections than
NYSHRL, Title VII, and§ 1981. See Acosta, 2012 WL 1506954, at *4-7. But those
differences in protection have no relevance here because, like the other statutes, NYCHRL
requires a complaint to make plausible that the adverse employment action was due to
plaintiffs race or to his engagement in a protected activity. See id. (dismissing NYSHRL and
NYCHRL claims on the same bases).
In this case, however, the Court need not examine the complaint in isolation because it
may consider that the 2004 judgment bars Arrocha from contesting that CUNY had a legally
justifiable and nondiscriminatory reason for declining to rehire him in 2000 as an adjunct
Spanish lecturer-again, precisely the same job title in issue here. See NML Capital. Ltd. v.
Banco Central de Ia Republica Argentina, 652 F.3d 172, 185 (2d Cir. 2001) ("Issue preclusion
bars successive litigation of an issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment." (quotations omitted)); Levv v. Kosher
Overseers Ass'n of America, Inc., 104 F.3d 38,41 (2d Cir. 1997) (explaining that the doctrine
of issue preclusion provides that a later action "may be affected, and possibly barred, even
though it involves a different claim or cause of action" (quotations omitted)); Can v. Goodrich
Pump & Engine Control Systems, Inc, 711 F. Supp. 2d 241, 246 (D. Conn. 2010) ("On a
motion to dismiss under Rule 12(b)( 6), judicial notice may be taken of other judicial documents
that might provide the basis for issue preclusion."). According to the Court's judicial
experience and common sense, an employer would very rarely rehire an applicant for the very
same position for which it had previously found the applicant's performance lacking. The
natural implication of an employer's refusal to hire such an applicant is that the employer
already knows it will not be satisfied with the applicant. Of course, it is theoretically possible
that an employer would hire such a person. Perhaps, for example, in a rare case, an employer
would rehire a formerly discharged employee who had clearly demonstrated that his previously
perceived inadequacies had been remedied. It is also theoretically possible that an employer
which elected not to rehire such a person could do so for an improper reason. But, to state a
valid claim based on the alleged occurrence of that theoretical possibility, a complaint would
have to plead facts making plausible that the employer declined to rehire the applicant for an
improper reason instead of the much more obvious reason that it still believes the applicant to
be a poor fit for the position.
As a consequence of his employment discrimination litigation prologue with CUNY,
Arrocha must do more to successfully plead a new discrimination claim here. Even the most
solicitous review of the complaint and other papers Arrocha has submitted reveals he has failed
to do so. The complaint essentially rehashes the same allegations that Arrocha made, and the
jury rejected, in his 2002 lawsuit. Importantly, the complaint does not allege that Arrocha is
more qualified in any notable way than he was in 2000, let alone so much more qualified by
newly acquired teaching experience that CUNY would possibly consider rehiring him despite
that it already employed him for four semesters and found his performance lacking. Arrocha's
mere allegation that he submitted recommendation letters and a student petition with his 2009
application change nothing because CUNY already had extensive experience employing him in
the position at issue. Further, Arrocha's allegation that certain "less qualified" "fair skinned"
candidates were hired over better qualified black candidates is wholly conclusory and, as
applied to him, is all but meaningless. Those candidates are poor comparators given the lack of
allegations that CUNY had prior, negative experiences employing them as it has had with
Though not relied on, plaintiff's opposition indicates he has virtually the exact same
academic qualifications and work experience that he had in 2000. (Plaintiff's Opposition at
plaintiff. 8 See Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210,220 (S.D.N.Y
2010) (dismissing an employment discrimination complaint because of, inter alia, a failure to
identify "any similarly situated individual, outside of [plaintiff's] protected race ... , who was
treated any differently under similar circumstances").
In short, viewed in the context of the established fact that CUNY for totally
nondiscriminatory reasons declined to rehire Arrocha in 2000 for the very position at issue
here, the complaint fails to state a plausible discrimination claim. Indeed, it is also successive
litigation fixated on the very issue that the jury resolved against Arrocha, namely, that there
was no unlawful motive for CUNY's decision not to rehire him.
The retaliation claim meets a similar fate. To state a plausible retaliation claim,
Arrocha would have to "plead facts that would tend to show that: (1) [he] participated in a
protected activity known to the defendant; (2) the defendant took an employment action
disadvantaging [him]; and (3) there exists a causal connection between the protected activity
and the adverse action." Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007). To start, there is
no possibility of a causal connection between Arrocha's complaints of discrimination to CUNY
and the 2009 rejection because Arrocha made those complaints only after the 2009 rejection.
17-26; Plaintiff's Opposition at~~ 9-35.) Further, and independently, as
Plaintiff's opposition, if anything, indicates this suit is guided entirely by (I) Arrocha's overly
narrow focus on comparing applicants based solely on their formal educations and
(2) Arrocha's refusal to accept that CUNY declined to hire him in 2000 based on his
performance. For example, plaintiff complains that an applicant was hired in 20 I 0 despite that
he is "better qualified academically." (Plaintiff's Opposition at~~ 29-33 (emphasis added).)
Arrocha appears to believe that the hiring decision was unjustified solely because, unlike that
applicant, Arrocha has two years of doctoral studies. (Id. at~~ 31, 37.) Amazingly, however,
considering the nature of this suit, the other applicant is "dark-skinned." (Id. at~ 31.) To cut to
the quick, though the Court need not consider it, Arrocha's opposition taken as true effectively
demonstrates that CUNY does hire dark skinned individuals for the exact position at issue here.
discussed above, the complaint has not made plausible that CUNY declined to hire Arrocha for
any reason other than its opinion of his particular qualifications and its previous experience
employing him as a lecturer.
§ 1983 Claims Against Johnson
Though the complaint does not allege a claim against Johnson, Arrocha alleges in his
opposition that Johnson deprived him of due process. Assuming the complaint can be read as
asserting such a claim, the claim still fails. "In order to prevail on a § 1983 claim for violation
of the procedural due process rights guaranteed by the Fourteenth Amendment, the plaintiff
must show (1) that he possessed a protected liberty or property interest; and (2) that he was
deprived of that interest without due process." Rehman v. State Univ. of New York at Stony
Brook, 596 F. Supp. 2d 643, 656 (E.D.N.Y. 2009) (citing McMenemy v. Citv of Rochester, 241
F .3d 279, 285-86 (2d Cir. 2001 )). First off, analytically, of course, Arrocha had no protected
interest in the position for which he was not hired, see id., and thus any claim against Johnson
is fatally flawed. Arrocha's claim against Johnson also fails because the availability of an
Article 78 proceeding to review Johnson's actions satisfies any due process concerns. See. e.g.,
Goonewardena v. New York State Workers' Compensation Bd., No. 09 Civ. 8244 (LTS)
(HBP), 2011 WL 4822553, at *5 (S.D.N.Y. Oct. 5, 2011). Further, because nothing in the
Assuming arguendo that the complaint could be reasonably construed as alleging the 2002
lawsuit was the protected activity, the retaliation claims would also fail for an additional
reason. The seven year gap between the 2002 lawsuit and the rejection of the 2009 application
cannot support a causal inference of retaliation. See Gorrnan-Bakos v. Cornell Co-op
Extension of Schenectady County, 252 F.3d 545,554-55 (2d Cir. 2001); see also McDowell v.
North Shore-Long Island Jewish Health System, Inc., 788 F. Supp. 2d 78 (E.D.N.Y. 2011)
("While some courts within this Circuit have held that a three month gap is insufficient to show
a causal connection, others have found that a separation of as much as eight months will permit
an inference of causation.").
complaint even remotely suggests that Johnson played any role in the decision not to hire
Arrocha, the complaint does not and cannot be amended to assert any other claim against him.
For the foregoing reasons, the motion to dismiss is granted and all claims, both federal
and state, are dismissed. Further, in light of the fact that Arrocha already repleaded his claims
once after defendants indicated their intent to challenge the first complaint based on claim
preclusion and because a liberal reading of the current complaint gives no indication that a
valid claim could be stated if Arrocha were given the opportunity to file a third complaint, the
dismissal is with prejudice as to all claims.
The Clerk is directed to enter judgment and to close this case.
Dated: Brooklyn, New York
July 8, 2012
ERIC N. VITALIANd
United States District Judge
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