Romain v. Capital One, N.A.

Filing 36

MEMORANDUM & ORDER re: 25 Motion to Dismiss is GRANTED and Plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE. Plaintiff's 33 Motion to Compel is DENIED AS MOOT. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for the purpose of any appeal. This case is CLOSED. Ordered by Judge Joanna Seybert on 12/9/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOSEPH ROMAIN,
Plaintiff,
-against-

MEMORANDUM & ORDER
13-CV-3035(JS)(WDW)

CAPITAL ONE, N.A. d/b/a CAPTIAL
ONE BANK,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Joseph Romain, pro se
176 Rushmore Street
Westbury, NY 11590
For Defendant:

Paul J. Siegel, Esq.
Alessandro Villanella, Esq.
Jackson Lewis, LLP
58 South Service Road, Suite 410
Melville, NY 11747

SEYBERT, District Judge:
Currently pending before the Court are: (1) defendant
Capital One N.A. d/b/a Capital One Bank’s (“Defendant”) motion
to dismiss the First Amended Complaint, and (2) pro se plaintiff
Joseph

Romain’s

(“Plaintiff”)

motion

to

compel.

For

the

following reasons, Defendant’s motion to dismiss is GRANTED and
Plaintiff’s motion to compel is DENIED.

BACKGROUND1
Plaintiff

commenced

this

action

on

May

21,

2013

alleging, inter alia, that Defendant violated the Americans with
Disabilities Act of 1990, as codified 42 U.S.C. §§ 12112-12117
(“ADA”).

With

subsequently

filed

the
an

permission
Amended

of

the

Complaint

on

Court,
July

Plaintiff
30,

2013.2

According to the Amended Complaint, Plaintiff brings this action
“against the Defendant on the basis of its failure to reasonably
accommodate
Plaintiff,

Plaintiff’s
unequal

disability,

terms

and

its

failure

condition[s]

of

to

promote

employment,

forcible restraint and verbal abuse[ ] . . . and its failure to
correct a hostile work environment . . . .”
Plaintiff

began

working

as

Defendant’s mailroom in October 2001.

a

(Am. Compl. ¶ 1.)

temporary

employee

(Am. Compl. ¶ 11.)

was hired as a full-time mailroom clerk on May 13, 2002.
Compl. ¶ 11.)

in
He

(Am.

Plaintiff alleges that Defendant was satisfied

with Plaintiff’s performance and periodically raised his salary
over the years of his employment.

(Am. Compl. ¶¶ 12-16.)

On March 7, 2007, Plaintiff was involved in a car
accident in which he sustained “a lot of injuries.”

(Am. Compl.

The following facts are taken from Plaintiff’s Amended
Complaint and the documents attached thereto and are presumed to
be true for the purposes of this Memorandum and Order, with the
caveat noted infra.
1

Although Plaintiff was briefly represented by counsel, both his
original Complaint and his Amended Complaint were filed pro se.
2

2

¶ 20.)

His orthopedic doctor permitted Plaintiff to return to

work, but issued a “restriction letter” noting that Plaintiff
had neuropathy of the peroneal nerve in the right leg and could
not lift more than twenty-five pounds for a period of time.
(Am. Compl. ¶ 20 & Ex. D.)

Although it is unclear from the

Amended Complaint,3 the documents attached thereto indicate that
Plaintiff re-aggravated his injury in 2009, causing him to take
an

approved

leave

under

the

Family

September 2009 through October 2009.

Medical

Leave

Act

from

(Am. Compl. Ex. B at 2;

see also Pl.’s Opp. Br., Docket Entry 28, ¶ 32.)
Plaintiff
restriction
although

letter

Defendant

Defendant
increased.

decreased

alleges
in

that,

2007,

continued
the

upon

Defendant
to

increase

percentage

(Am. Compl. ¶ 17.)

by

receipt
was

of

the

“unhappy”

and,

Plaintiff’s
which

his

salary,
salary

Plaintiff further alleges that

his supervisor, Mr. Edgar Lozado, lied about Plaintiff’s poor
work performance and on one occasion hit Plaintiff in the back
with

a

shopping

cart.

(Am.

Compl.

¶¶

23-24.)

Defendant

ultimately terminated Plaintiff’s employment on January 2, 2010.
(Am. Compl. ¶ 11.)

The Amended Complaint is somewhat difficult to decipher and
offers a recitation of cases from across the country, including
cases involving Dr. Conrad Murray, Lance Armstrong, and Abner
Louima.
3

3

On
complaint

January

with

(“NYSDHR”).

the

20,
New

2010,

York

Plaintiff

State

(Am. Compl. Ex. B at 1.)

filed

a

of

Human

Division

verified
Rights

The NYSDHR concluded that

Defendant had decided to terminate one mail room associate from
each of its locations, that Plaintiff was selected for “role
elimination” due to his poor performance, and that no other
employee selected for elimination was disabled.
B at 2.)
charge.
based

(Am. Compl. Ex.

On June 28, 2011, the NYSDHR dismissed Plaintiff’s
(Am. Compl. Ex. B.)

its

decision

on

false

Plaintiff asserts that the NYSDHR
statements,

Lozado acting in concert with Defendant.

presumably

from

Mr.

(Am. Compl. ¶¶ 31,

36.)
Plaintiff’s complaint was also cross-filed with the
United States Equal Employment Opportunity Commission (“EEOC”).
On September 27, 2011, the EEOC adopted the findings of the
NYSDHR and dismissed Plaintiff’s charge.

(Am. Compl. Ex. A.)

Plaintiff alleges, however, that he did not receive a right-tosue letter from the EEOC until May 17, 2013.
According

to

Defendant--which

(Am. Compl. ¶ 6.)
Plaintiff

does

not

dispute--Plaintiff appealed the NYSDHR’s decision to the Supreme
Court of New York, Nassau County on July 15, 2011.4

(Def.’s Br.,

The Court will take judicial notice of the documents submitted
in connection with prior litigation. See Twentieth Cen. Fox
Film Corp. v. Marvel Enters., Inc., 220 F. Supp. 2d 289, 293 n.
4

4

Docket Entry 26, at 3; Siegel Aff., Docket Entry 25-1, Ex. F.)
The Supreme Court upheld the NYSDHR’s decision and on November
10, 2011, Plaintiff appealed to the Appellate Division, Second
Department.

(Def.’s

Br.

at

3;

Siegel

Aff.

Exs.

G-H.)

On

February 13, 2013, the Appellate Division affirmed the decision
of the Supreme Court.

(Def.’s Br. at 3; Siegel Aff. Ex. I.)

Plaintiff moved for leave to appeal to the New York Court of
Appeals, but on April 30, 2013, the New York Court of Appeals
denied Plaintiff’s request.

(Def.’s Br. at 3; Siegel Aff. Ex.

K.)
DISCUSSION
The

Court

will

first

discuss

Defendant’s

motion

to

dismiss, and the applicable legal standard, before turning to
Plaintiff’s motion to compel.
I. Defendant’s Motion to Dismiss
A. Legal Standard
In
Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

the

guided

by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

all

allegations

as

First, although the

true,

this

“tenet”

4 (S.D.N.Y. 2002) (“The Court takes judicial notice of Marvel’s
filing in the bankruptcy proceeding under Fed. R. Evid. 201.”).
5

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

71 (2d Cir. 1998).
any

document

documents

This has been interpreted broadly to include

attached

to

the

Complaint,

incorporated

in

the

Complaint

any
by

statements
reference,

or
any

document on which the Complaint heavily relies, and anything of
which

judicial

notice

may

be

taken.

See

Chambers

v.

Time

Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations
omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
1991).
B. Timeliness
Defendant

moves

to

dismiss

because Plaintiff’s action is not timely.

6

the

Amended

Complaint

The Court agrees.

To sustain a claim under the ADA or under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title
VII”), a plaintiff must file his federal action within ninety
days of receiving a right-to-sue letter from the EEOC.

See

Johnson v. St. Barnabas Nursing Home, 368 F. App’x 246, 248 (2d
Cir.

2010)

(citing

§ 12117(a)).
presumed

42

U.S.C.

§

2000e-5(f)(1)

and

42

U.S.C.

“Absent sufficient evidence to the contrary, it is

that

a

plaintiff

received

his

letter three days after its mailing.”

or

her

right

to

sue

Id. (citing Sherlock v.

Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996)).
Here,

the

EEOC

dismissed

Plaintiff’s

charge

on

September 27, 2011, but Plaintiff did not file this action until
May 21, 2013.

Plaintiff alleges in his Amended Complaint that

he did not receive the right-to-sue letter until May 17, 2013.
(Am. Compl. ¶ 6.)

In support, Plaintiff attaches an affidavit

to the Amended Complaint from his daughter, attesting that she
“picked up” an envelope from the EEOC addressed to Plaintiff on
May 17, 2013.

(Am. Compl. Ex. A.)

Preliminarily,

unsupported

allegations

regarding

receipt of a right-to-sue letter from the EEOC do not overcome
the presumption that a plaintiff received the letter three days
after its mailing.

See Hughes v. Elmira Coll., 584 F. Supp. 2d

588, 590 (W.D.N.Y. 2008).

Although an affidavit, such as that

submitted by Johanne Romain, may overcome the presumption, this
7

does not end the Court’s inquiry.
Hosp.,

133

F.3d

906,

*2

(2d

See Comrie v. Bronx Lebanon
Cir.

1998).

Significantly,

Plaintiff alleged in his original Complaint that he received the
right-to-sue letter on September 27, 2011.

(Compl. ¶ 12.)

Such

an assertion flatly contradicts his current allegation, and the
Court,

therefore,

need

not

accept

it.

See

Kilkenny

v.

Law

Office of Cushner & Garvey, L.L.P., No. 08-CV-0588, 2012 WL
1638326,

at

supporting

*5
the

(S.D.N.Y.
notion

May

that

8,
a

2012)

court

(“There
may

is

disregard

authority
amended

pleadings when they directly contradict facts that have been
alleged in prior pleadings.” (collecting cases)).

Furthermore,

Plaintiff’s

right-to-sue

claim

that

he

did

not

receive

the

letter until May 2013 comes only after Defendant filed a motion
to dismiss the original Complaint on, inter alia, timeliness
grounds.

“Where a ‘plaintiff blatantly changes his statement of

the facts in order to respond to the defendant[’s] motion to
dismiss . . . [and] directly contradicts the facts set forth in
his original complaint,’ a court is authorized ‘to accept the
facts described in the original complaint as true.’”

Colliton

v. Cravath, Swaine & Moore LLP, No. 08-CV-0400, 2008 WL 4386764,
at *6 (S.D.N.Y. Sept. 24, 2008) (quoting Wallace v. N.Y.C. Dep’t
of Corr., No. 95-CV-4404, 1996 WL 586797, at *2 (E.D.N.Y. Oct.
9, 1996) (alterations in original)).
current

assertion

that

the

EEOC
8

Accordingly, Plaintiff’s

letter

was

in

the

mail

for

nearly two years is patently implausible.

Thus, Defendant’s

motion to dismiss Plaintiff’s Amended Complaint as untimely is
GRANTED and the Amended Complaint is DISMISSED WITH PREJUDICE.
As

the

Court

has

decided

Defendant’s

motion

on

timeliness grounds, it will not address Defendant’s additional
arguments.
II. Plaintiff’s Motion to Compel
Plaintiff

seeks

a

“Court

Order

against

the

investigator of State Division of Human Rights . . . to do over
an investigation because of a wrong doing investigation [sic]
addressed to Mr. Ronald B. Brinn regional director.”
Compel, Docket Entry 33, at 1.)
dismissed

Plaintiff’s

Amended

(Mot. to

However, as the Court has
Complaint

with

prejudice,

Plaintiff’s motion is DENIED AS MOOT.
CONCLUSION
For
dismiss

is

the

foregoing

GRANTED

and

DISMISSED WITH PREJUDICE.

reasons,

Plaintiff’s

Defendant’s
Amended

motion

to

Complaint

is

Additionally, Plaintiff’s motion to

compel is DENIED AS MOOT.
Furthermore, the Court notes that Defendant’s notice
of motion included a potential request for attorneys’ fees and
costs.

(See Def.’s Not. of Mot., Docket Entry 25.)

Although

the Court makes no determination as to whether such a motion is
viable--or even necessarily appropriate--if Defendant seeks such
9

relief, it must do so through a separate motion.

Any such

motion must be filed within thirty days of the date of this
Memorandum and Order.
The

Court

certifies

that

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 any appeal.

See Coppedge v. United States,

369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mark this matter
CLOSED and to mail a copy of this Memorandum and Order to pro se
Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December
9 , 2013
Central Islip, NY

10