Driskell v. New York City et al
MEMORANDUM DECISION AND ORDER: Defendants have moved to dismiss the amended complaint on the ground, inter alia, that it is barred by the applicable statute of limitations. The motion must be granted. Accordingly, defendants' mot ion to dismiss is granted, and plaintiff's federal claims are dismissed. To the extent she has asserted any state law claims that are not time barred, those claims are dismissed without prejudice. The Court certifies, pursuant to 28 U.S.C. 167; 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Brian M. Cogan, on 4/24/2012. C/mailed by Chambers. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
IN CLERK'S OFFICE
U.S. DISTRICT COllRT E.D.N.Y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
11 Civ. 4915 (BMC)
NEW YORK CITY, N.Y.C. BOARD OF
EDUCATION, UNITED FEDERATION OF
TEACHERS (UFT), PRINCIPAL ELLEN
CARLISLE, PORTIA CAMPBELL,
ASSISTANT PRINCIPAL, PAULA BELL,
ASSISTANT PRINCIPAL, MS.
CARRINGTON, RICK KING, BRENDA
HAWKINS PEGAN, WALTER O'LEARY,
HOWARD SOLOMON, et al.
COGAN, District Judge.
Plaintiff pro se brings this action under 42 U.S.C. § 1983 alleging that she was
terminated from her employment as a teaching paraprofessional for speaking out to school
administrators about incidents she observed at her school, and that the termination was also the
result of national origin discrimination against her as an American. Defendants are four teachers
or administrators who allegedly perpetrated these actions. 1 Defendants have moved to dismiss
the amended complaint on the ground, inter alia, that it is barred by the applicable statute of
limitations. The motion must be granted.
Plaintiffs claims arise out of two incidents. The first occurred sometime in 2007, when
plaintiff alleges that she either observed or, more likely, heard about an "incident of a sexual
prior Orders, the Court had dismissed other defendants and claims.
I . f ff the school administration
. bathroom Accordmg to p am 1 ,
nature" between two boys m a '
he refused to obey that
d' ss the incident. Plaintiff alleges that w en s
sment took the
directed all staff not to ISCU
instruction and reported it internally, she became subject to harassment. The aras
. nment one that was outside her job descnptIon,
form of giving her a more difficult wor asslg
b 10 2007 She filed a grievance m
and ultimately resulted in her termination effective Decem e r ,
connection with her termination which was denied on March 10, 2008.
The second incident occurred on October 29, 2007, when plaintiff observed defendant
Carrington, a teacher, strike a student. This culminating act was only one of a number of
problems that plaintiff had with Carrington, who plaintiff accuses of national origin
discrimination. Carrington allegedly told plaintiff that she (Carrington) was part of a fraternity
of West Indian administrators and teachers who "felt they could run the school as if they were in
the West Indies where corporal punishment is permissible." Carrington allegedly told plaintiff
that she (Carrington) had assumed that plaintiff was Haitian, but plaintiff told Carrington that
plaintiff was American. Plaintiff believes that the West Indian administrators engineered her
termination because she is American.
Plaintiff commenced this action on October 7, 2011. It is well established that the statute
of limitations under 42 U.S.C. § 1983 for claims brought in New York is three years. See
Wallace v. Kato, 549 U.S. 384, 387 (2007) (applying personal injury statute of limitations under
state law to §1983 claim); Patterson v. Cnty. of Oneida, 375 F.3d 206,226 (2d Cir. 2004) ("The
statute oflimitations applicable to claims brought under §§ 1981 and 1983 in New York is three
years."); N.Y. C.P.L.R. §214(5) (three year statute oflimitations). Although the New York state
statute of limitations is used to compute time, "[f]ederallaw determines when a federal claim
accrues." Eagleston v. Guido, 41 F.3d 865,871 (2d Cir. 1994). Under federal law, a cause of
action accrues "when the plaintiff knows or has reason to know of the injury which is the basis of
his action." Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). In employment
discrimination cases, a claim arises "on the date the employee learns of the employer's
discriminatory conduct." Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000).
Plaintiff was terminated with full knowledge of the circumstances of which she now
complains on December 10, 2007. Even if we take the date that her grievance of her termination
was rejected (March 10, 2008), she is still well beyond the three years within which she could
have commenced this action. She has offered no reason why she could not have commenced the
Accordingly, defendants' motion to dismiss is granted, and her federal claims are
dismissed. To the extent she has asserted any state law claims that are not time barred, those
claims are dismissed without prejudice. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445,82 S.Ct. 917 (1962).
S/Judge Brian M. Cogan
Dated: Brooklyn, New York
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