Barroso v. CUNY

Filing 18

ORDER granting 9 Motion to Dismiss for Failure to State a Claim with leave to replead: For the reasons set forth in the attached Memorandum and Order, defendants motion to dismiss is GRANTED and plaintiffs claims are DISMISSED without prejudice. In light of this Courts duty to liberally construe pro se complaints, plaintiff is granted leave to file an amended complaint alleging viable claims consistent with this opinion. Should plaintiff elect to file an amended complaint, he must do so by September 5, 2013. Any filing must be clearly captioned Amended Complaint, and bear the same docket number 12-cv-625 as the original complaint. If plaintiff fails to amend his complaint within the time allowed, this action shall be dismissed and judgment shall enter.The Clerk of Court shall mail a copy of this Memorandum and Order to the plaintiff by overnight mail and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 8/9/2013. (Mauskopf, Roslynn)

Barroso v. CUNY

Doc. 18

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
FERNANDO BARROSO,
Plaintiff,

MEMORANDUM AND ORDER
12-CV-625 (RRM)(JMA)

- against OFFICE OF GENERAL COUNSEL, VICE
CHANCELLOR OF LEGAL AFFAIRS, CUNY,
Defendants.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff pro se brought a lawsuit alleging age discrimination, pursuant to the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., against the City
University of New York (“CUNY”) and the Vice-Chancellor of Legal Affairs, in his official
capacity. Before the court is defendants’ fully-briefed motion to dismiss the complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. Nos. 9–14, 16.) 1 For the
reasons that follow, defendants’ motion to dismiss is GRANTED.
BACKGROUND
The following facts are drawn from the plaintiff’s complaint, opposition papers, and
supplemental materials2 and are assumed to be true for the purposes of deciding this motion.
Plaintiff, born November 4, 1950, took a civil service exam and was hired by CUNY as a
licensed exterminator around 1992. (Doc. No. 1 at 5.) After approximately ten years as an
1

Subsequent to filing his opposition, plaintiff submitted approximately 43 documents “that were mistakenly not
included with,” though referenced in, his opposition to defendants’ motion. (See Doc. No. 16.) The Court will
accept these materials in support of plaintiff’s opposition. See Order dated Dec. 19, 2012. For purposes of this
motion, the Court takes all of plaintiff’s allegations in his complaint, opposition papers, and supplemental materials
as true.

2

Although a court generally “may not look outside the pleadings when reviewing a rule 12[] motion to dismiss[,]
. . . the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff’s
additional materials, such as his opposition memorandum.” Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1
n. 2 (S.D.N.Y. Nov. 17, 1997).

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Dockets.Justia.com

exterminator, plaintiff began to apply for other jobs at CUNY with titles such as “laborer,”
“maintenance worker,” “electrician helper,” and “oiler position.” (Id. (capitalization altered));
(Pl. Ltr. Br. Opp. to Mot. to Dismiss (Doc. No. 13) at 3.). Plaintiff applied to eleven such
positions between April 2003 through September 2012, and, though interviewed several times,
was not hired for any of these positions. (See id.) Nevertheless, plaintiff maintains that he was
qualified for these positions given his experience as “a handyman (superintendent) in Astoria of
42 apartments . . . maintaining plumbing, electrical, painting, sanding, door closers, etc.” and in
“supervis[ing] 10 employees at (Cargo Loss) . . . moving furniture, stoves, refrigerators, wall
units, T.V.s rugs, etc. (loading and unloading trucks).” (Doc. No. 1 at 5 (capitalization altered)).
Additionally, plaintiff noted that he has received at least twelve recommendations during his
employment at Hunter College and has received excellent job performance reviews “in the years
2007, 2008, 2010, and in the last evaluation [he] received covering year 2011, the indication
was: ‘Excellent candidate for promotion. Can be recommended without reservation.’” (Doc. No.
13 at 1–2.)
In addition to applying for various positions, beginning in November 2007, plaintiff
spoke and wrote to numerous individuals in the CUNY organization complaining of his “unfair”
treatment. (See Doc. No. 13 at 4–6.) Though he does not indicate the time, place, or context,
plaintiff alleges that Danny Velez, an executive director, told plaintiff that he “will never get
another job Hunter sees you as the only exterminator” and that Patrick Tobin, administrative
superintendent, told plaintiff that “Hunter needs you also now your age is a factor.”3 (Doc. No. 1
at 5 (capitalization altered).) Additionally, on March 31, 2008, plaintiff met with Peter
Monahan, Director of Human Resources, and explained that it was Tobin who had “not allowed
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Plaintiff also refers to this allegation, again without providing any context, in his letter to the Dean for Diversity
and Compliance, dated December 5, 2011, where plaintiff states that “Superintendent Pat Tobin [ ] told me to my
face that I will not be hired for jobs that I had applied for due to my age.” (Doc. No. 16.)

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[plaintiff] to advance” and who told plaintiff “on numerous occasions that [he] should not even
bother applying for positions because [he] would not get them.” (Id.) However, “nothing
positive came of this” meeting with Monahan. (Id.) Again without providing any context,
plaintiff alleges that “Mr. [Peter] Monahan said that this [age] was the reason I was being held
back before he quit[].” (Letter to Dean for Diversity and Compliance, dated Dec. 5, 2011 (Doc.
No. 16).)
Plaintiff also provides conflicting reasons for his inability to obtain these jobs. Plaintiff
alleges that “Hunter has no incentive to promote me,” that “[i]t would be inconvenient for them
to give me a different job opportunity,” and that he was “not allow[ed] to transfer into any other
position because [Tobin] needed [plaintiff] in [his] current position.” (Doc. No. 13 at 4–5.)
Plaintiff also wrote numerous letters between November 16, 2007, through December 5,
2011, to the president of Hunter College, the Director of Research and Negotiations, the
Executive Director of DC-37 (apparently a union in which plaintiff is a member), the Acting
Assistant Vice President of Facilities, and the Dean for Diversity and Compliance. (Doc. No. 13
at 4–5.) With the exception of the Acting Assistant Vice President of Facilities, plaintiff
received a response to all of his letters. Id. Although plaintiff acknowledges that he received
“undoubtedly nice words of encouragement,” he complains that no one offered the “assistance
[he] was seeking” and that no one “took any concrete steps to address his situation.” (Id.) At
some point in 2011, plaintiff met with the Director of Campus Planning and Management, who
told plaintiff “that there was nothing [the Director] could do, and that [plaintiff] should just keep
on applying for job openings.” (Id. at 5.) Subsequently, on January 13, 2012, plaintiff met with
the Dean of Diversity and Compliance, who “told [plaintiff] the reason [he] had not been
successful in obtaining other positions is because [he] did not know the answers to some

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interview questions.” (Id.) In his letter brief, plaintiff explains that he did not know some
answers because “during the interview for the Maintenance position” the interviewer asked
“Oiler position questions rather than maintenance related questions.” (Id.)
In addition to allegations of discrimination, plaintiff suggests, albeit not clearly at all, that
he was retaliated against when the “F.D.N.Y. w[as] called on 11/7/2008 with [his] information it
was a safety factor for all for faculty, staff, student community.” (Doc. No. 1 at 6 (capitalization
altered).)
Plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission
(“EEOC”) on September 28, 2011.4 In his EEOC charge, plaintiff alleges he was discriminated
and retaliated against based on race5 and age on July 20, 2011 by “Peter Plevritis-Administrative
Superintendent,” presumably in a job interview, where “questions that were asked were
questions for extermination, not laborer, laborer is moving furniture among other things.” (Doc.
No. 11, Ex. 1.) The EEOC subsequently issued a Dismissal and Notice of Rights to Sue letter
that plaintiff received on November 7, 2011. (Doc. No. 1 at 7.) Plaintiff then filed the instant
complaint on February 6, 2012. (Doc. No. 1.)
DISCUSSION
I.

The Eleventh Amendment Bars Plaintiffs’ ADEA Claims
“A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and

12(b)(6) must decide the ‘jurisdictional question first because a disposition of a Rule 12(b)(6)
motion is a decision on the merits, and therefore, an exercise of jurisdiction.’” Schwartz v. York
4

Plaintiff mistakenly alleges that he filed a charge with the EEOC on May 4, 2011, (Doc. No. 1 at 4); it was not
actually filed until September 28, 2011. (Doc. No. 11, Ex. 1). Because the EEOC charge was “expressly referred to
in the pleading, [it] may be considered incorporated by reference” and may be considered “without converting this
[ ] into a motion for summary judgment.” Muhammad v. New York City Transit Auth., 450 F. Supp. 2d 198, 204–05
(E.D.N.Y. 2006).

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Plaintiff does not allege discrimination or retaliation based on race in his complaint.

4

Coll., 06-cv-6754, 2009 WL 3259379, at *1 (E.D.N.Y. Mar. 31, 2009); see also Rhulen Agency,
Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (noting that a finding of a lack of
subject matter jurisdiction makes other claims and defenses moot). When considering a motion
to dismiss a pro se complaint, the Court is mindful that it must construe the complaint liberally
and interpret the complaint “to raise the strongest arguments they suggest.” Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Nevertheless, proceeding pro se “does not
exempt a party from compliance with relevant rules of procedural and substantive law.” Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
“A case is properly dismissed for lack of subject matter 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) (citing Fed. R. Civ. P. 12(b)(1)). 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.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004)
(citation omitted). The court, however, “may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay
statements contained in the affidavits.” Id. (citations omitted). “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).
Plaintiff’s ADEA claims against CUNY and Vice Chancellor are barred pursuant to the
sovereign immunity protections of the Eleventh Amendment. Under the Eleventh Amendment
to the United States Constitution, a state and its agencies generally are immune from suit in
federal court. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54–56 (1996). Absent a state’s

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express immunity waiver or the Congressional abrogation of state immunity, neither of which is
applicable here, the Eleventh Amendment provides immunity to states and entities considered
arms of the state, for relief of any kind brought in federal court. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 97–100 (1984); McGinty v. State of N.Y., 251 F.3d 84, 95 (2d
Cir. 2001) (internal quotations omitted).
The Second Circuit has held that CUNY’s “senior colleges” and central administration
are “arms of the state” and therefore immune from suit in federal court. Clissuras v. City Univ.
of N.Y., 359 F.3d 79, 81 & n. 2 (2d Cir. 2004); Sacay v. Research Found. of City Univ. of N.Y.,
193 F. Supp. 2d 611, 625 (E.D.N.Y. 2002) (“CUNY Senior Colleges are arms of the State for
Eleventh Amendment purposes.”); see also Schwartz v. York Coll., 2009 WL 3259379, at *2 n.8
(collecting cases). Moreover, to the extent that plaintiff is suing the Vice Chancellor in any
official capacity, the Eleventh Amendment also bars those claims as well. See.Posr v. Court
Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999); Farid v. Smith, 850 F.2d 917, 921 (2d
Cir. 1988). 6
Here, however, no valid waiver or abrogation of immunity exists with respect to
Plaintiff’s ADEA age discrimination claim in this lawsuit. Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 91 (2000) (holding that no waiver or congressional abrogation exists with respect to
6

Plaintiff names the “Office of General Counsel, Vice Chancellor of Legal Affairs, CUNY” as defendants. (Compl.
(Doc. No. 1).) However, the Office of General Counsel and Senior Vice Chancellor of Legal Affairs is not a legally
cognizable entity that can be sued apart from CUNY. See Clissuras v. City Univ. of N.Y., 359 F.3d 79, 81 n. 2 (2d
Cir. 2004) (holding that suits must be brought against CUNY because its subdivisions are not legally cognizable
entities apart from CUNY). Additionally, to the extent that plaintiff seeks damages against the Vice Chancellor of
Legal Affairs individually, there is no individual liability under the ADEA. Peres v. Oceanside Union Free Sch.
Dist., 426 F. Supp. 2d 15, 22 (E.D.N.Y. 2006) (dismissing claims against individual because the ADEA does not
provide for individual liability). Thus, all claims asserted will be treated as claims against CUNY and the Vice
Chancellor of Legal Affairs in his official capacity.
Plaintiff also makes references to Hunter College in his complaint and opposition papers. Because Hunter College
is a senior college of CUNY and is not a cognizable entity apart from CUNY, all claims asserted against Hunter
College will be treated as claims against CUNY. See Barry v. City Univ. of N. Y., 09-cv-8805, 2010 WL 1948336,
at *1 (S.D.N.Y. May 13, 2010) (finding that CUNY is the proper party because Hunter College is a senior college of
CUNY).

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ADEA claims). Accordingly, plaintiff’s ADEA claims against CUNY are dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) as barred by the Eleventh Amendment.
II.

Additional Procedural Bars to Plaintiff’s Claims
“Exhaustion of administrative remedies through the EEOC is ‘an essential element’ of the

. . . ADEA statutory schemes and, as such, a precondition to bringing such claims in federal
court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
Moreover, claims under the ADEA must be filed with the Equal Employment Opportunity
Commission (“EEOC”) within 300 days of the alleged unlawful act. Kassner v. 2nd Avenue
Delicatessen Inc., 496 F.3d 229, 237-238 (2d Cir. 2007) (citing 29 U.S.C. § 626(d)(2)). Discrete
acts such as termination, failure to promote and transfer are “not actionable if time barred, even
when they are related to acts alleged in timely filed charges.” Amtrak v. Morgan, 536 U.S.
101, 113 (2002). In such circumstances, the law is clear -- “[w]hen a plaintiff fails to file a
timely charge with the EEOC, the claim is time-barred.” Butts v. N.Y. City Dep’t of Hous.
Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), abrogated by statute on other grounds,
Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998). Both of these
procedural requirements bar plaintiff’s claims.
First, Plaintiff’s EEOC charge only contained one claim for discrimination, one that
allegedly involved a specific interview conducted by Peter Plevritis on July 20, 2011. See
Wright Decl. Ex. A.7 The EEOC charge does not contain any other alleged instances of
discrimination or retaliation. See id. However, in his complaint, alleges that Patrick Tobin
stated that “age is a factor,” (Doc. No. 1 at 5), and that “Mr. [Peter] Monahan said that this [age]
was the reason [he] was being held back” (Doc. No. 16). As noted above, plaintiff provides no

7

While any claim against Plevritis is properly exhausted, plaintiff fails to state a plausible claim for relief as
discussed more fully below.

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dates or context for these alleged statements; as such, plaintiff has not demonstrated that any
such allegations fall within the 300-day rule. Even if they did, they were not properly exhausted
before the EEOC.
Claims not asserted before the EEOC may be pursued in subsequent federal court action
if they are “reasonably related” to those that were filed with the agency. However, this exception
is not applicable based on the current set of facts as alleged. First, any claims arising prior to
July 20, 2011 are not “reasonably related” as plaintiff could have raised them at the EEOC. See
Guerrero v. FJC Sec. Services Inc., 2012 WL 2053535, at 5 (S.D.N.Y. June 5, 2012) (claims
reasonably related only when based on conduct subsequent to that alleged in the EEOC charge).
Moreover, reasonably related “means that despite the claimant’s having failed to specify the
precise charge, the EEOC likely would have investigated the conduct complaint of anyway.”
Williams v. NYC Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam) (citation omitted).
In his EEOC charge, plaintiff complains of being asked “discriminatory questions” where he was
asked questions for “extermination, [and] not laborer” in a discrete interview by a particular
individual. (Doc. No. 11, Ex. 1.) In contrast, the claims alleged in the instant complaint relate to
specific allegations against other individuals presumably occurring at different times. Based on
plaintiff’s allegations, one can hardly say that the EEOC likely would have investigated wholly
disparate incidents, individuals and allegations of discrimination and retaliation now referenced
in plaintiff’s complaint.
III.

Failure to State Claims for Relief

Defendants also seeks dismissal for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). To withstand 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.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). In deciding a Rule 12(b)(6) motion, the court
must “take[ ] factual allegations [in the complaint] to be true and draw[ ] all reasonable
inferences in the plaintiff’s favor.” Harris, 572 F.3d at 71 (citation omitted). Further, “a district
court must limit itself to facts stated in the complaint or in documents attached to the complaint
as exhibits or incorporated in the complaint by reference.” Newman & Schwartz v. Asplundh
Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996). However, the court may also consider
“matters of which judicial notice may be taken” and documents of which plaintiff “had
knowledge and relied on in bringing suit.” Brass v. American Film Technologies, Inc., 987 F.2d
142, 150 (2d Cir. 1993).
A complaint need not contain “‘detailed factual allegations,’” but it must contain “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949
(quoting Twombly, 550 U.S. at 555). In other words, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). Rather, the plaintiff’s complaint must include “enough facts to state a claim to
relief that is plausible on its face.” 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.” Iqbal, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 556). The determination of whether “a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157–58
(2d Cir.2007)).
Plaintiff’s complaint suffers from several defects in this regard. First, allegations

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supporting the exhausted claim against Peter Plevritis do not in any way suggest discriminatory
conduct. As alleged, plaintiff complains that Plevritis asked questions for an exterminator
position, not that of a labor. Second, while plaintiff suggests that he was retaliated against, a
claim that has not been exhausted, he fails to allege a nexus between any protected conduct and
any adverse employment action, including his failure to successfully land the jobs he sought.
See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997) (To state a claim for
retaliation under the ADEA, a plaintiff must allege that: “(1) [he] was engaged in an activity
protected under the ADEA; (2) the employer was aware of plaintiff’s participation in the
protected activity; (3) [he] was subject to an adverse employment action; and (4) there is a nexus
between the protected activity and the adverse action.”)8 Finally, plaintiff’s sole conclusory
statement – that he was retaliated against when an unknown person called the “F.D.N.Y. . . . on
11/7/2008 with my information it was a safety factor for all for faculty, staff, student
community” – hardly establishes protected activity or the requisite causal connection to an
adverse action. Delgado v. Triborough Bridge & Tunnel Auth., 485 F. Supp. 2d 453, 461–62
(S.D.N.Y. 2007) (dismissing retaliation claim where plaintiff failed to show causal connection
between an adverse employment action and a protected activity).
CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is GRANTED and
plaintiff’s claims are DISMISSED without prejudice.
In light of this Court’s duty to liberally construe pro se complaints, plaintiff is granted
leave to file an amended complaint alleging viable claims consistent with this opinion. See Cruz
v. Gomez, 202 F.3d 593 (2d Cir. 2000). Should plaintiff elect to file an amended complaint, he

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Nowhere in his complaint does plaintiff suggest that he was retaliated for making his complaint to the EEOC.

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must do so by September 5, 2013. Any filing must be clearly captioned “Amended Complaint,”
and bear the same docket number −12-cv-625 − as the original complaint. If plaintiff fails to
amend his complaint within the time allowed, this action shall be dismissed and judgment shall
enter.
The Clerk of Court shall mail a copy of this Memorandum and Order to the plaintiff by
overnight mail and note the mailing on the docket.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
August 9, 2013

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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