Berlyavsky v. NYC Department of Environmental Protection

Filing 100

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATIONS. For the reasons stated in the attached Order, the court adopts in part and modifies in part the R&R. The court dismisses the Second Amended Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). The Clerk of Court is respectfully directed to enter judgment in favor of defendants and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/30/2015. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
VIKTOR BERLYAVSKY,
Plaintiff,

ORDER ADOPTING IN
PART AND MODIFYING IN
PART REPORT AND
RECOMMENDATION

-againstNEW YORK CITY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, et al.,

14-cv-3217 (KAM)(RER)

Defendants.
--------------------------------------X
MATSUMOTO, United States District Judge:
On May 22, 2014, plaintiff Viktor Berlyavsky
(“plaintiff”), initially proceeding pro se, commenced this
action against the New York City Department of Environmental
Protection (“DEP”), a number of current or former New York City
employees (the “Individual City Defendants”) (collectively, the
“City Defendants”), and labor arbitrator Mariann E. Schick
(“Arbitrator Schick”).

Plaintiff filed a first amended

complaint on September 2, 2014 (ECF No. 5.) and the second
amended complaint (“SAC”) on November 4, 2014.

(ECF No. 42.)

Plaintiff asserts federal claims pursuant to Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment
Act (“ADEA”), 42 U.S.C. §§ 1981, 1983, and 1985, in addition to
state claims under the New York State Human Rights Law
(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”).

On February 20, 2015, Arbitrator Schick moved to
dismiss all claims against her pursuant to Federal Rule of Civil
Procedure 12(b)(6).

(ECF No. 73.)

On March 6, 2015, the City

Defendants moved to dismiss the SAC with prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
76.)

(ECF No.

In addition, the City Defendants requested that they be

granted “costs, fees, and disbursements.”

(Mem. of Law in Supp.

of City Defs.’ Mot. to Dismiss the SAC at 291, ECF No. 77.)

On

January 5, 2015, Matthew Harris Goldsmith filed a notice of
appearance, appearing as counsel for plaintiff in this case.
(ECF No. 67.)

Plaintiff opposed the motions to dismiss through

counsel.
On April 23, 2015, the court referred the motions to
dismiss to Magistrate Judge Ramon E. Reyes for a Report and
Recommendation (“R&R”).
2015.)

(See Order Referring Mot., Apr. 23,

On August 28, 2015, Judge Reyes issued an R&R

recommending that the court dismiss the SAC in its entirety for
failure to state a claim.
91.)

(R&R dated Aug. 28, 2015, ECF No.

Judge Reyes also recommended that the court deny the City

Defendants’ request for costs, fees, and disbursements and grant
plaintiff one final opportunity to amend his complaint.

1

(Id. at

In the interest of maintaining consistency with Judge Reyes’ R&R, the court
refers to the page numbers generated by the Electronic Case Filing (“ECF”)
system.

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27.)
The R&R notified the parties that any objections must
be filed within fourteen days of receipt of the R&R.2

(Id.)

On

September 9, 2015, the City Defendants filed their objections to
the R&R.

(ECF No. 92.)

On September 15, 2015, the court

granted plaintiff’s request for a two-day extension to file
objections.

(Order dated 9/15/15 granting extension.)

On

September 24, 2015, plaintiff filed his response to the City
Defendants’ objections but did not file any objections to the
R&R.

(ECF No. 99.)
A district court reviews those portions of an R&R to

which a party has timely objected under a de novo standard of
review and “may accept, reject, or modify, in whole or in part,
the findings or recommendations . . . .”
§ 636(b)(1)(C).

28 U.S.C.

However, where no objections to the R&R have

been filed, the district court “need only satisfy itself that
that there is no clear error on the face of the record.”

Urena

v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001)
(quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985)).
The sole objection to the R&R is the City Defendants’
objection to Judge Reyes’ recommendation that the plaintiff be
2

On September 2, 2015, Judge Reyes also gave notice reminding the parties
that any objections must be filed by September 14, 2015.

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granted leave to file a fourth complaint on the grounds that any
amendment would be futile and unproductive.
at 4, ECF No. 92.)

(City Defs.’ Objs.

Plaintiff’s opposes the City Defendants’

objection, arguing that his investigation and collection of
evidence remains ongoing.
at 2, ECF No. 99.)

(Pl.’s Resp. to the City Defs.’ Objs.

The court reviews Judge Reyes’

recommendation granting plaintiff leave to replead de novo and
reviews the remainder of the R&R for clear error.

For the

reasons below, the court adopts the R&R’s recommendation to
dismiss all of plaintiff’s claims and modifies the R&R to
dismiss plaintiff’s SAC with prejudice.
The R&R correctly notes that the Second Circuit has
held that a pro se litigant should be afforded at least one
opportunity to amend his complaint prior to its dismissal for
failure to state a claim unless the court can rule out any
possibility that an amended complaint will succeed in stating a
claim, (R&R at 27)(quoting Gomez v. USAA Fed. Savs. Bank, 171
F.3d 794, 796 (2d Cir. 1999)), and that a pro se litigant should
be afforded leave to amend “fairly freely”.

(Id.)(quoting Ellis

v. Guarino, No. 03-Cv-6562, 2004 WL 1879834, at 13 (S.D.N.Y.
Aug. 24, 2004).)

Judge Reyes determined that he could not rule

out any possibility that plaintiff would be able to state a
claim, noting that his first two amendments were done “without

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the benefit of having his allegations tested on a motion to
dismiss.”

(R&R at 27.)

The R&R also noted that plaintiff is

now represented by counsel, who will be able to assist plaintiff
in crafting a pleading that asserts only those claims that can
be made in good faith and complies with the parameters set forth
in the R&R.

(Id.)

Federal Rule of Civil Procedure 15(a) provides that
leave to amend a pleading “shall be freely given when justice so
requires.”

Fed. R. Civ. P. 15(a).

Nevertheless, “it is within

the sound discretion of the court whether to grant leave to
amend.”

John Hancock Mut. Life Ins. Co. v. Amerford Int'l

Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).

“[U]ndue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party . . . [or] futility of
amendment” will serve to prevent an amendment prior to trial.
Foman, 371 U.S. at 182.

“An amendment to a pleading will be

futile if a proposed claim could not withstand a motion to
dismiss pursuant to Rule 12(b)(6).”

Dougherty v. Town of N.

Hempstead Bd. Of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)
(citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991)).

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The court considers plaintiff’s assertion that his
investigation is ongoing and his proposed third amended
complaint (“TAC”), which was not submitted to Judge Reyes but
was submitted in response to the City defendants’ objections.
The proposed TAC drops plaintiff’s Title VII and ADEA claims and
alleges additional claims pursuant to 42 U.S.C. § 1986, N.Y.
Civ. Serv. L. § 75-b(3)(b), N.Y. Lab. L. § 740, and common law
negligence.

(TAC at 14-16.)

Plaintiff’s proposed TAC

eliminates his claims of discrimination based on religion, age,
and national origin, but alleges retaliation for asserting his
First Amendment rights and for whistleblowing.

(See generally,

TAC.)
Plaintiff’s proposed TAC fails to cure the
deficiencies that Judge Reyes thoroughly articulated in his R&R,
and furthermore, the amendments to plaintiff’s pleadings are
futile.

With respect to his proposed First Amendment

retaliation claims under 42 U.S.C. § 1983 and his whistleblower
claims pursuant to New York Civil Service law3, the proposed TAC
again fails to allege that plaintiff engaged in protected
speech, and further fails to allege a causal connection between
the protected speech or activity and the adverse employment

3

New York Labor Law § 740 does not apply to “public employers” who are
instead covered by New York Civil Service Law § 75-b. Tamayo v. City of New
York, No. 02 Civ. 8030, 2004 WL 137198, at *7 (S.D.N.Y. Jan. 27, 2004).

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action.

See Scheiner v. New York City Health & Hosps., 152 F.

Supp. 2d 487, 496 (S.D.N.Y. 2001)(applying same analysis to
retaliation claim against a public employer under N.Y. Civ.
Serv. Law § 75–b(2)(a) and to First Amendment retaliation
claim).

Plaintiff again alleges that he reported ongoing

sampling violations to the Office of Environmental Health and
Safety in August 12, 2006 (TAC ¶ 33) and that he suffered
adverse employment actions in 2009 and 2013.

(TAC ¶¶ 40-44.)

This three year temporal chasm between the protected speech and
the allegedly adverse employment action is far too long to
warrant an inference that the protected activity was a
substantial motivating factor in the adverse employment action.
See Roa v. Mineta, 51 F. App’x. 896, 900 (2d Cir. 2002)(finding
gap of a year and a half is too long to infer a causal
connection between protected activity and adverse employment
action).

For the same reasons that Judge Reyes articulated in

the R&R, the proposed TAC fails to allege a continuing violation
claim.

(See R&R at 9-10; see also Donas v. City of New York,

N.Y.S.2d 360, 361 (N.Y. App. Div. 2009).)
Furthermore, the proposed 42 U.S.C. § 1981 claim under
a class-of-one theory fails as a matter of law.

Engquist v.

Oregon Dep’t of Agriculture, 553 U.S. 591, 607 (2008)(holding
“that the class-of-one theory of equal protection has no

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application in the public employment context”).

Claims of

common law negligence are barred by the exclusivity provision of
New York’s Workers’ Compensation Law.

See Arroyo v. WestLB

Admin., Inc., 54 F. Supp. 2d 224, 232 (S.D.N.Y. 1999), aff'd,
213 F.3d 625 (2d Cir. 2000) (citing N.Y. Work. Comp. § 11).

The

remainder of plaintiff’s proposed claims suffer from the same
deficiencies that Judge Reyes articulated in his thorough and
well-reasoned R&R.4

Consequently, the court finds that any

amendment of plaintiff’s pleading is futile.
Accordingly, the court adopts in part and modifies in
part the R&R.

The court dismisses the SAC with prejudice

pursuant to Federal Rule of Civil Procedure 12(b)(6).

The Clerk

of Court is respectfully directed to enter judgment in favor of
defendants and close this case.

SO ORDERED.

Dated:

September 30, 2015
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

4

Because plaintiff fails to state a claim pursuant to 42 U.S.C. § 1985, his
proposed 42 U.S.C. § 1986 claim of accessorial liability against individual
defendants also fails as a matter of law.

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