Rodriguez v. County of Nassau et al

Filing 25

MEMORANDUM AND ORDER granting 20 Motion to Dismiss; That for the reasons stated herein, Defendants' motion to dismiss Plaintiff's complaint i sgranted in its entirety. The Clerk of the Court is directed to close the case.(Ordered by Judge Leonard D. Wexler on 3/27/2013.) c/Judgment Clerk (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SEBASTIAN RODRIQUEZ,
MEMORANDUM AND ORDER
Plaintiff,
-againstCOUNTY OF NASSAU, NASSAU COUNTY
CIVIL SERVICE COMMISSION and NASSAU
COUNTY POLICE DEPARTMENT,
Defendants.

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APPEARANCES:

cv 12-2588
(Wexler, J.)

FILED

IN CLERK'S OFc'<':E
U.S. DISTRICT cc·
Cl NY.

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MAR 2'7 2013

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LONG ISLAND l..~r-' ,c;E

Law Offices of Thomas F. Liotti
By: Thomas F. Liotti, Esq.
600 Old Country Road, Suite 530
Garden City, NY 11530
Attorney for Plaintiff
'
John Ciampoli, County Attorney of Nassau County
By:
Daniel Feldman, Esq.
One West Street
Mineola, NY 11550
Attorney for Defendants County of Nassau,
Nassau County Civil Service Commission
and Nassau County Police Department

WE)(LER, District Judge:
Plaintiff Sebastian Rodriquez ("Rodriquez" or "Plaintiff') brings this action claiming
violations of 42 U.S.C. § 1983, 42 U.S.C. § 2000e-2(a)(l) ("Title VII"), the Fair Labor Standards
Act ("FLSA"), New York Human Rights law§§ 290 et seq., New York Exec. Law§ 290 and§
296, et seq., and New York Labor Law§ 741. Defendants County of Nassau ("County), Nassau
County Civil Service Commission ("Commission") and Nassau County Police Department
("Police Department") (collectively, the "Defendants") move to dismiss Plaintiff's complaint

pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Rule 12(b)(6) for failure to state a
claim. For the reasons that follow, Defendants' motion is granted in its entirety.
BACKGROUND
According to Plaintiff's complaint ("Cmplt.), he is a person of Puerto Rican ancestry.
Cmplt. ~ II. He began the Nassau County Correction Officer application process in December
2007 when he took the Correction Officer exam and scored a 85. Cmplt.

~

19. On February 9,

2008, he received a Police Department Candidate Application Packet, which he promptly
completed and returned, including three (3) numbers where he could be reached- home, cell and
work. Cmplt. ~ 21. By letter dated April 29, 2008, Officer Gerald Friel advised Rodriquez that
he was to schedule an appointment for a background investigation by May 5, 2008 "or his
application may be discontinued." Plaintiff did not receive the letter. Cmplt. ~ 22. Thereafter
Officer Friel left four (4) messages on Plaintiff's cell phone, lastly on May 15,2008. Officer
Friel did not call any of the other numbers Plaintiff had provide on his application. Cmplt. ~ 24.
On June 2, 2008, Rodriquez checked his cell phone and learned of Officer Friel's calls. He
called Friel, but the call was not returned. Cmplt. ~ 25-26. By letter dated June II, 2008,
Rodriquez received a letter from the Commission stating that he was disqualified from the
Correction Officer application process due to "failure to cooperate with your background
investigation." Plaintiff wrote for a more detailed explanation, to which the Commission
responded that "the original notification of disqualification stands." Cmplt.

~

28.

Subsequently, Plaintiff filed an Article 78 proceeding in the Supreme Court in Nassau
County against these Defendants challenging the dismissal of his application. Cmplt. ~ 30. By
Order dated February 19, 2009, the Nassau Supreme court ruled that the Office Friel's failure to
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attempt to reach Rodriquez at the other numbers listed in his application was "umeasonable" and
vacated the Commission letter of June II, 2008 disqualifYing Plaintiff. Defendants appealed.
The Appellate Division, Second Department reversed on June 18, 20 II. Motions to reargue and
for leave to file with the New York Court of Appeals were denied on March 25,2011. A notice
of Claim was filed against these Defendants on July 14, 2011. 1 Cmplt. ~ 34.
Subsequently, on July 13, 2011, Rodriquez filed a discrimination charge with the New
York State Division of Human Rights ("NYSDHR") alleging discrimination as a result of
Plaintift's national origin. Cmplt.

~

8. By letter dated March 5, 2012, the Equal Employment

Opportunity Commission ("EEOC") dismissed Plaintiffs charge for "No jurisdiction, Untimely,
Over 300 days" ("EEOC Letter"). 2 The EEOC Letter also informed Plaintiff he had ninety (90)
days to file a lawsuit. Plaintiff filed this lawsuit on May 23,2012. In the interim, on April23,
2012, Plaintiffs counsel wrote to Nassau County Executive Edward Mangano ("Mangano")
seeking reconsideration of Plaintitr s disqualification and employment, to which no response has
been received. Cmplt. ~ 36, Ex. F.
DISCUSSION
I.

Legal Principles
A.

Standards on Motion to Dismiss

In considering a motion to dismiss made pursuant to Rule 12(b)( 6), the court must accept

1

These various decisions and orders are attached to Plaintiffs complaint as Exhibits B, C,
D and E. Since they are referenced in and attached to the complaint, it is appropriate to review
them under a Rule 12(b)(6) motion. See Hayden v. County. ofNassau, 180 F.3d 42, 54 (2d
Cir.1999).
2

The EEOC Letter is attached to Plaintiffs complaint as Exhibit A.
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the factual allegations in the complaints as true, and draw all reasonable inferences in favor of
plaintiffs. Bold Electric. Inc. v. Citv of New York, 53 F.3d 465, 469 (2d Cir. 1995). In Bell
Atlantic Com. v. Twombly. 550 U.S. 544 (2007), the Supreme Court articulated the requirement
that a plaintiff plead enough facts "to state a claim for relief that is plausible on its face."
Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
Although heightened factual pleading is not the new standard, Twombley holds that a "formulaic
recitation of cause of action's elements will not do. Factual allegations must be enough to raise a
right to relief above the speculative level." Id. at 1959. Further, a pleading that does nothing
more than recite bare legal conclusions is insufficient to "unlock the doors of discovery." Iqbal,
129 S. Ct. at 1950.
II.

Disposition of the Present Motion
A.

Plaintiffs Title VII claim

Defendants argue that Plaintiffs claims under Title VII must be dismissed for being
untimely since the charge was filed more than 300 days after the date of the alleged
discrimination.
It is well-settled in the Second Circuit that a plaintiff may bring an employment

discrimination action under Title VII only after filing a timely charge with the EEOC or with "a
State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. §
2000e-5(e) (Title VII); see 29 U.S.C. §§ 626(d), 633(b) (ADEA). Holtz v. Rockefeller & Co ..
Inc., 258 F.3d 62, 82-83 (2d Cir. 2001). Such charge shall be filed by within three hundred days
after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5 (e)(l). The filing
deadline is a statute oflimitations and a failure to timely file bars a plaintiffs action. See Hill v.
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Citibank Com., 312 F.Supp.2d 464,472 (S.D.N.Y.2004), quoting Harris v. Citv ofNew York,
186 F.3d 243, 247 (2d Cir.l999). Here, Plaintiff filed his EEOC charge on July 13, 2011.
Cmplt. , 8. Accordingly, any claim regarding an act or event that occurred more than 300 days
prior, including Plaintiff's disqualification from the application process on June II, 2008, is
time-barred.
Plaintiff argues that the time limitations period should be extended by the "continuous
violation" doctrine, arguing that the discrimination is continuing while Plaintiff waits for a
response to Plaintiff's counsel's letter to Mangano seeking reconsideration and employment.
Under that doctrine, if a plaintiff has suffered a continuous practice and policy of discrimination,
the start ofthe limitations period may be delayed. Fitzgerald v. Henderson, 251 F.3d 345, 359
(2d Cir. 2001), cert. denied, 536 U.S. 922 (2002) (citations omitted). Generally, a continuing
violations doctrine is associated with a discriminatory policy, as opposed to individual acts of
discrimination, although a continuing violation may be found "where specific and related
instances of discrimination are permitted by the employer to continue unremedied for so long as
to amount to a discriminatory policy or practice." !d., citations omitted. Nevertheless, as the
Supreme Court has stated, "[d]iscrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable "unlawful employment
practice." National R.R. Passenger Com. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061,2073
(2002). Thus, a plaintiff can only "file a charge to cover discrete acts that 'occurred' within the
appropriate time period." !d.
The linchpin of Plaintiff's claim is his termination or disqualification from the
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Corrections Officer application process by letter dated June II, 2008. This termination is a
"discrete" act, and is outside the 300-day time limit for a claim under Title VII. Mangano's
failure to respond to Plaintiff's counsel's letter seeking reconsideration does not amount to a
continuing violation, nor does it create a policy of discrimination such that the continuing
violations doctrine should apply.' As a result, Plaintiff's Title VII claim is time-barred and is
hereby dismissed.
B.

42 U.S.C. §1983

Defendants argue that Plaintiff's claim under 42 U.S.C. § 1983 is also untimely. The
applicable statute of limitations period governing § 1983 actions is three years from the time the
claim accrued. Paige v. Police Dept. of Schenectady, 264 F.3d 197, 199 n. 2 (2d Cir.2001).
Under federal law, the claim accrues when the plaintiff knows or has reason to know of the harm
or injury that is the basis of his action. Cornwell v. Robinson, 23 F.3d 694,703 (2d Cir. 1994),
abrogated in part on other grounds, Nat'! R.R. Passenger Com. v. Morgan, 536 U.S. 101, 114
(2002).
Plaintiffs claim accrued on the day he was disqualified from the Corrections Officer
application process, which was by letter dated June 11, 2008. This complaint was filed on May
23,2012, more than three years later. For the reasons discussed above, the continuing violations
doctrine does not apply, and therefore Plaintiffs claims under 42 U.S.C. § 1983 is hereby

3

ln his opposition papers to this motion, Plaintiff refers to a lawsuit brought against these
Defendants and a resulting 1982 consent decree which prohibited Nassau County from engaging
in discrimination or utilizing entrance exams that had any discriminatory impact. To the extent
Plaintiff relies on this history to bolster his theory that the continuing doctrine applies to this
case, the court finds there is no evidence to support any connection between that consent decree
and this Plaintiff.
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dismissed as untimely.
C.

FLSA Claim

Defendants also argue that Plaintiff's FLSA claim is untimely. A claim under the FLSA
must be brought within two (2) years after the cause of action accrued, or three (3) years after if
the plaintiff can show that the defendant has been wilful. 29 U.S.C. § 255(a). Plaintiff's cause
of action accured on June II, 2008, and this action, filed May 23,2012, is beyond the two-year
or three-year statute oflimitations for an FLSA claim. As stated above, the doctrine of
continuing violations does not apply, not does any other tolling theory. Therefore, Plaintiff's
claim under the FLSA is hereby dismissed.
D.

New York State Law Claims

In light of the dismissal of Plaintiff's federal claims, the court declines to exercise
jurisdiction over Plaintiff's state law claims under N.Y. State Human Rights Law, §§ 290 et seq.,
N.Y. Executive Law§§ 290 and 296, and N.Y. Labor Law§ 741. See 28 U.S.C. § 1367(c).
CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss Plaintiff's complaint is
granted in its entirety. The Clerk ofthe Court is directed to close the case.
SO ORDERED.
~oY""" IV

':J/- 'V . - ARD D. WEXLER
UNITED STATES DISTRICT JUDGE

0

Dated: Central Islip, New York
March212013

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