Tinsley v. Town of Brookhaven

Filing 22

MEMORANDUM & ORDER granting 19 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendant's motion to dismiss (Docket Entry 19) is GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff. Given Plaintiff's pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. So Ordered by Judge Joanna Seybert on 2/24/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
MEREDITH TINSLEY,
Plaintiff,

MEMORANDUM & ORDER
14-CV-7277 (JS)(ARL)

-against–
TOWN OF BROOKHAVEN DEPT. OF
PUBLIC SAFETY,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Meredith M. Tinsley, pro se
44 South Howells Point Road
Bellport, NY 11713
For Defendants:

David M. Cohen, Esq.
Cooper, Sapir, & Cohen, P.C.
560 Broadhollow Road, Suite 210
Melville, NY 11747

SEYBERT, District Judge:
On

December

(“Plaintiff”)
against

the

(“Defendant”

10,

commenced
Town
or

of

2014,

this

employment

Brookhaven

“the

plaintiff

Town”).

Tinsley

discrimination

Department
She

Meredith

of

alleges

Public
that

action
Safety

Defendant

discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 29 U.S.C. § 2000 et seq. and the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq.
to

Currently pending before the Court is Defendant’s motion

dismiss

(Docket

Entry

19.)

Defendant’s motion is GRANTED.

For

the

following

reasons,

BACKGROUND
I.

Factual Background1
Plaintiff was employed by the Town as a public safety

officer.

(Am. Compl. at 1.)2

She alleges that she was “forced

out of work” by Director Mike Scholsberg (“Director Scholsberg”)
and the Town in July 2013 and discriminated against based on her
race, color, gender, national origin, and disability.
at 2, 5.)

(Am. Compl.

She alleges that after she was terminated, the pay rate

for public safety officers increased, and she would have received
the pay raise if she had not been terminated.

(Am. Compl. at 2.)

Plaintiff further alleges that the Town failed to provide training.
(Am.

Compl.

at

5.)

She

requests

the

dismissal

of

Director

Scholsberg, Commissioner Peter O’Leary, and Sergeant Britch, as
well as compensation from the Town.3

(Am. Compl. at 2.)

In

The following facts are taken from the Amended Complaint (Am.
Compl., Docket Entry 18) and are presumed to be true for the
purposes of this Memorandum and Order. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167 L. Ed. 2d
929 (2007) (“[A] judge ruling on a defendant’s motion to dismiss
a complaint must accept as true all of the factual allegations
contained in the complaint.” (internal quotation marks and
citation omitted)).
1

To avoid confusion, the Court will use the pagination assigned
by the Electronic Case Filing system when referring to the
Amended Complaint.
2

Specifically, Plaintiff demands the following damages: (1)
reimbursement for loan payments related to a New York State
retirement account which she has been unable to make since
3

2

addition, Plaintiff requests a promotion to Lieutenant. (Am Compl.
at 2.)

She contends that the Town continues to retaliate against

her and her parents’ business.
II.

(Am. Compl. at 5.)

Procedural History
Plaintiff filed her Complaint on December 10, 2014.

(Compl., Docket Entry 1.) Defendant moved to dismiss the Complaint
on May 19, 2015.

(Mot., Docket Entry 9.)

On March 8, 2016, the

Court granted Defendant’s motion to dismiss but granted Plaintiff
leave to amend her Complaint.

Tinsley v. Town of Brookhaven, 14-

CV-7277, 2016 WL 901676, at *2 (E.D.N.Y. Mar. 8, 2016).

The Court

held that dismissal was warranted because “[t]he Complaint d[id]
not contain any facts that provide notice of the conduct at issue
in this lawsuit.”

Tinsley, 2016 WL 901676, at *2.

Plaintiff filed her Amended Complaint on June 13, 2016.
(Am. Compl.)

Defendant filed a letter motion to dismiss on

June 15, 2016, arguing that Plaintiff’s Amended Complaint was
untimely; however, the Court denied the motion without prejudice.
(Letter Mot., Docket Entry 16; Order, June 22, 2016.)

Thereafter,

on July 6, 2016, Defendant filed the instant motion to dismiss for
failure

to

state

a

claim

and/or

lack

of

subject

matter

losing her job, (2) reimbursement for all other bills and
expenses that she has been unable to pay since losing her job,
3) ten percent of the Town’s revenue for each year between 2013
and 2016 and (4) punitive damages. (Am. Compl. at 2.)
3

jurisdiction.

(Def.’s Mot., Docket Entry 19.)

her opposition on August 11, 2016.

Plaintiff filed

(Pl.’s Opp., Docket Entry 21.)

On the first page of Plaintiff’s Amended Complaint, she
states “Listed chronologically are the events that occurred to
myself while on the job as a public safety officer . . . .”
Compl. at 1.)

(Am.

The Amended Complaint contains a brief “Statement

of Claim” primarily outlining the requested relief and a form
employment discrimination complaint.

In the section provided to

detail relevant facts about the case in the form complaint,
Plaintiff merely states “See Attached Sheets.”

Attached to the

Amended Complaint are: (1) a memorandum from the Town regarding
“Bang-Ins”; (2) a Notice of Determination from the New York State
Department

of

Labor

regarding

unemployment

benefits;

(3)

a

notification from Bank of America that Plaintiff’s bank account
was overdrawn; (4) Plaintiff’s 2013 W-2 form issued by the Town;
(5)

a

right

to

sue

letter

from

the

U.S.

Equal

Employment

Opportunity Commission (“EEOC”); (6) a letter from the New York
State and Local Retirement System; (7) a Determination after
Investigation,

a

Final

Investigation

Report

and

Basis

of

Determination and a letter from the New York State Division of
Human Rights; (8) a letter from Plaintiff to Defendant’s Law Office
discussing scheduling issues Plaintiff experienced at work and a
dispute between Plaintiff and Sgt. Ed Birtch; (9) a Miscellaneous
Report, Vehicle Inspection Form and bi-weekly time record related
4

to Plaintiff’s dismissal from work for wearing shorts; (10) a
letter

from

CSEA

discussing

an

allegation

that

Plaintiff’s

employer did not allow her to wear shorts at work, notwithstanding
her diagnosis with Lyme’s disease; and (11) an application to
proceed in forma pauperis.4

(Am. Compl. at 8-32.)
DISCUSSION

I.

Legal Standard
A. Rule 12(b)(1)
“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.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

In resolving a

motion to dismiss for lack of subject matter jurisdiction, the
Court may consider affidavits and other materials beyond the
pleadings.

See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d 167,

170 (2d Cir. 2008), aff’d, 561 U.S. 247, 130 S. Ct. 2869, 177 L.
Ed. 2d 535 (2010). Though the Court must accept the factual
allegations contained in the Amended Complaint as true, it will
not draw argumentative inferences in favor of Plaintiff; subject

All of these documents were attached to the original Complaint
with the exception of (1) the letter from the New York State and
Local Retirement System, (2) the Final Investigation Report and
Basis of Determination from the New York State Division of Human
Rights, and (3) the Miscellaneous Report, Vehicle Inspection
Form and bi-weekly time record related to Plaintiff’s dismissal
from work for wearing shorts. (Compl. at 6-17.)
4

5

matter

jurisdiction

must

be

shown

affirmatively.

See

id.

Additionally, “[a] plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that
it exists.”

Makarova, 201 F.3d at 113.

B. Rule 12(b)(5)
“Federal Rule of Civil Procedure 12(b)(5) authorizes
dismissal of the complaint for insufficient service of process
upon motion by a defendant made prior to the defendant’s filing an
answer.”

Forte v. Lutheran Augustana Extended Care & Rehab. Ctr.,

No. 09-CV-2358, 2009 WL 4722325, at *2 (E.D.N.Y. Dec. 9, 2009).
When defendants move to dismiss for lack of proper service, “the
plaintiff

bears

sufficient.”

the

burden

of

establishing

that

service

was

Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).

Moreover, “‘[w]hen a court considers a motion to dismiss pursuant
to

Rule

12(b)(5),

it

must

consider

information

outside

complaint to determine whether service was sufficient.’”

the

Rosado-

Acha v. Red Bull Gmbh, No. 15-CV-7620, 2016 WL 3636672, at *9
(S.D.N.Y. June 29, 2016) (quoting Hernandez v. Mauzone Home Kosher
Prods. of Queens, Inc., No. 12-CV-2327, 2013 WL 5460196, at *4
(E.D.N.Y. Sept. 30, 2013)).
C. Rule 12(b)(6)
Rule 12(b)(6) provides that dismissal is appropriate if
the complaint fails “to state a claim upon which relief can be
granted.”

FED. R. CIV. P. 12(b)(6).
6

A complaint must plead “enough

facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007).

A claim is plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L.

Ed.

2d

868

(2009).

Although

the

Court

must

accept

all

allegations in the Amended Complaint as true, this tenet is
“inapplicable to legal conclusions.”

Id.

Thus, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id. (citation omitted).

Ultimately, the Court’s plausibility determination is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Id. at 679, 129 S. Ct. at

1950.
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007).

See also Hiller v. Farmington Police Dep’t,

No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31, 2015)
(noting that the dismissal of a pro se complaint pursuant to Rule
12(b)(6) is not appropriate “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
7

which would entitle him to relief”) (internal quotation marks and
citation omitted).

Nevertheless, a pro se complaint must state a

plausible claim for relief and comply with the minimal pleading
standards set forth in Federal Rule of Civil Procedure 8.

Hiller,

2015 WL 4619624, at *7.
In deciding a motion to dismiss, the Court is generally
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).

However, the Court may consider “any

written instrument attached to [the complaint] as an exhibit,
materials incorporated in it by reference, and documents that,
although

not

incorporated

complaint.”

by

reference,

are

integral

to

the

Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)

(internal quotation marks and citation omitted); see also Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (observing
that a document is “integral” if the complaint “relies heavily
upon its terms and effect”) (internal quotation marks and citation
omitted).
II.

Application
Defendant makes three arguments in support of its motion

to dismiss.

First, it argues that the Court lacks subject matter

jurisdiction because Plaintiff’s original Complaint was filed
ninety-one days after Plaintiff received the right to sue letter
from the EEOC.

(Def.’s Br., Docket Entry 19-2, at 5.)
8

The Court

disagrees.

It is well established that “[u]nder Title VII and the

Americans with Disabilities Act, a claim must be filed in federal
court within 90 days of the plaintiff’s receipt of a right-to-sue
letter . . . .” Johnson v. St. Barnabas Nursing Home, 368 F. App’x
246, 248 (2d Cir. 2010); see also 24 U.S.C. § 2000e-5(f)(1).
Additionally, there is a presumption that “a notice provided by a
government agency was mailed on the date shown on the notice,”
Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37
(2d Cir. 2011), and that “a plaintiff received his or her right to
sue letter three days after its mailing,” Johnson, 368 F. App’x at
248.

Plaintiff’s right to sue letter (the “Right to Sue Letter”)

was issued on September 10, 2014. (Right to Sue Ltr., Docket Entry
18, at 13.)

The Court presumes that it was mailed the same day

and that Plaintiff received it on September 13, 2014.

Thus, her

Complaint was timely if it was filed on or before December 12,
2014.5

Plaintiff’s Complaint was filed on December 10, 2014, and

as a result, the Complaint was timely.

Accordingly, Defendant’s

motion to dismiss on this ground is DENIED.

Because Plaintiff’s Amended Complaint relates back to the
filing of the original Complaint, the proper inquiry is whether
the original Complaint was filed within ninety days of receiving
the Right to Sue Letter. See FED. R. CIV. P. 15(c)(1)(B) (“An
amendment to a pleading relates back to the date of the original
pleading when . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set
out—-or attempted to be set out—-in the original pleading.”).
5

9

Second, Defendant contends that dismissal is warranted
because it was not served within 120 days of the filing of the
original Complaint pursuant to Federal Rule of Civil Procedure
4(j).

(Def.’s Br. at 5.)

At the time Plaintiff’s original

Complaint was filed, the Federal Rules of Civil Procedure required
that

she

serve

Complaint.6

Defendant

within

120

days

after

filing

the

Stevens, 2016 WL 7210072, at *1-2 (analyzing the

plaintiff’s compliance with the version of Rule 4 in effect at the
time the complaint was filed).

However, the Court must extend the

time to serve the defendant if the plaintiff demonstrates good
cause.

FED. R. CIV. P. 4(m).
Here, the original Complaint was filed on December 10,

2014, and Defendant was served 135 days later on April 24, 2015.
(Compl.; Process Receipt and Return, Docket Entry 8.)

Although

service did not occur within the required time period, the Court
finds that dismissal is not appropriate on this ground.

Pursuant

to this Court’s February 3, 2015 Order, Plaintiff was granted leave
to proceed in forma pauperis (“IFP”) and service of the summons
and complaint was the responsibility of the United States Marshal
Service (“USMS”).

(Order, Docket Entry 6, at 2.)

See Meilleur v.

Strong, 682 F.3d 56, 61 (2d Cir. 2012) (“[W]e agree that plaintiffs

In December 2015, the time period to serve a summons and
complaint was shortened to ninety days. FED. R. CIV. P. 4(m); see
also Stevens v. Landes, No. 13-CV-643S, 2016 WL 7210072, at *1
n.3 (W.D.N.Y. Dec. 13, 2016).
6

10

proceeding pro se and IFP are entitled to rely on the Marshals to
effect service . . . .”); Stevens, 2016 WL 7210072, at *2 (“Once
a plaintiff is granted permission to proceed in forma pauperis,
the responsibility for effecting service of summons and complaint
shifts to the court.”) (citing 28 U.S.C. § 1915(d); FED. R. CIV. P.
4(c)(3)).

Therefore, because the delay in service was caused by

circumstances outside Plaintiff’s control, there is good cause to
retroactively
April 24,

extend

2015.7

her

Id.

time

to

serve

(“Consequently

the

complaint

because

the

until

court

is

responsible for the failure to serve, good cause exists under Rule
4(m) for an extension of time to complete service.”); McCalman v.
Partners in Care, No. 01-CV-5844, 2002 WL 856465, at *1 (S.D.N.Y.
Apr. 25, 2002) (retroactively extending time to serve due to the
failure of the USMS to effectuate timely service).

The Court is mindful of the Second Circuit’s pronouncement that
“[i]f a plaintiff proceeding IFP chooses to rely on the Marshals
to serve the relevant parties, and it becomes apparent that the
Marshals will not accomplish this by the Rule 4(m) or courtordered deadline, she must advise the district court that she is
relying on the Marshals to effect service and request a further
extension of time for them to do so.” Meilleur, 682 F.3d at 63.
However, the Court was aware that Plaintiff was relying on the
USMS for service, and in fact, ordered such service. (See
Order, February 3, 2015.) Based on the facts of the instant
case, the Court will not fault Plaintiff for failing to request
an extension during the fifteen days between the deadline for
service and service of the Summons and Complaint by the USMS.
7

11

Third, Defendant maintains that the Amended Complaint
fails to state a claim and fails to comply with well-established
pleading standards.

(Def.’s Br. at 4, 6-7.)

The Court agrees.

“To make out a prima facie case under Title VII, a
plaintiff must show: (1) she is a member of a protected class; (2)
she

is

competent

to

perform

her

job

or

performed

her

job

satisfactorily; (3) there was an adverse employment action; and
(4) circumstances supporting an inference of discrimination.”
Kiley v. Am. Soc. for Prevention of Cruelty to Animals, 296 F.
App’x 107, 109 (2d Cir. 2008).

Although Plaintiff alleges that

she is a member of a protected class, she fails to allege facts to
plausibly plead the remaining elements of her claim.

(See Compl.

at 2, 5.) Specifically, she fails to allege that she was competent
to perform her duties as a public safety officer.

Moreover,

Plaintiff’s Statement of Claim fails to allege any “circumstances
supporting an inference of discrimination.”

See Kiley, 296 F.

App’x at 109.
To

establish

a

discrimination

claim

under

the

ADA,

Plaintiff must demonstrate that “(1) the employer is subject to
the ADA; (2) the plaintiff is disabled within the meaning of the
ADA or perceived to be so by her employer; (3) she was otherwise
qualified to perform the essential functions of the job with or
without reasonable accommodation; (4) she suffered an adverse
employment action; and (5) the adverse action was imposed because
12

of her disability.”

Dooley v. JetBlue Airways Corp., 636 F. App’x

16, 21 (2d Cir. 2015 (internal quotation marks and citation
omitted).

The Amended Complaint alleges that Plaintiff suffered

from Lyme Disease in 1993 and 1999.

(Compl. at 5.)

However, it

does not contain any facts regarding the other elements of an ADA
discrimination claim.8

Further, the Amended Complaint consists

almost entirely of letters, records and other documents and lacks
the “short and plain statement of the claim” required by the
Federal Rules.

Fed. R. Civ. P. 8(a)(2).

As this Court previously

held, “the Court will not guess at the subject matter of this case
based upon documents attached to the Complaint.”

Tinsley, 2016 WL

901676, at *2.
The Court finds that Plaintiff’s Amended Complaint fails
to state a plausible claim.

Accordingly, the Amended Complaint is

DISMISSED.
C.

Leave to Amend

The Second Circuit has held that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999), overruled on other grounds, Gonzaga v. Doe, 536 U.S.

To the extent Plaintiff’s complaint asserts a Title VII
retaliation claim or a failure to accommodate claim, the Court
finds that she also fails to plead sufficient facts related to
those claims to survive a motion to dismiss. See Dooley, 636 F.
App’x at 18-19 (discussing elements of retaliation and failure
to accommodate claims).
8

13

273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

See also FED. R. CIV.

P. 15(a)(2) (“The court should freely give leave [to amend] when
justice

so

requires.”).

However,

“the

district

court

has

discretion whether or not to grant leave to amend,” and “[w]here
it

appears

that

granting

leave

to

amend

is

unlikely

to

be

productive . . . it is not an abuse of discretion to deny leave to
amend.”

Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.

1993).
Plaintiff was previously granted leave to amend her
Complaint to plead facts to support her claims but failed to do
so.

Similar to her original Complaint, Plaintiff has attached a

series of documents and records to her Amended Complaint without
any explanation.

In its discretion, the Court finds that further

amendments would be unproductive.

Accordingly, leave to amend is

DENIED.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss
(Docket Entry 19) is GRANTED, and Plaintiff’s claims are DISMISSED
WITH PREJUDICE.

The Clerk of the Court is directed to mail a copy

of this Order to the pro se Plaintiff.

Given Plaintiff’s pro se

status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Memorandum and Order would not be taken
in good faith and therefore in forma pauperis status is DENIED for

14

purposes of an appeal. Coppedge v. United States, 369 U.S. 438,
444–45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

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

Dated:

February
24 , 2017
Central Islip, New York

15