Domitz v. The City of Long Beach
MEMORANDUM AND ORDER granting 20 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendant's motion to dismiss is granted and Plaintiffs ADEA claims are dismissed, with prejudice. In addition, the Court declines to exercise supplemental jurisdiction over Plaintiffs NYSHRL claims and those claims are dismissed, without prejudice. The Clerk of the Court is directed to enter judgment accordingly and to close this action. (Ordered by Judge Leonard D. Wexler on 6/16/2017.) (Fagan, Linda)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N. Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
HOWARD A. DOMITZ,
JUN 16 2017
MEMORANDUM AND ORDER
-againstTHE CITY OF LONG BEACH,
LAW OFFICES OF WAYNE J. SCHAEFER, LLC
BY: Wayne J. Schaefer, Esq.
Attorneys for Plaintiff
199 East Main Street, Suite 4
Smithtown, NY 11 787
ROBERT M. AGOTISTI, CORPORATION COUNSEL, CITY OF LONG BEACH
BY: Richard A. Berrios, Esq., Assistant Corporation Counsel
Attorneys for Defendant
1 West Chester Street
Long Beach, NY 11561
WE)(LER, District Judge:
Before the Court is Defendant's motion to dismiss Plaintiffs Complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be
granted. Plaintiff opposes the motion. For the following reasons, Defendant's motion is granted
and Plaintiffs Complaint is dismissed in its entirety.
Plaintiff, Howard Damitz ("Plaintiff' or "Damitz"), commenced his employment with
Defendant City of Long Beach ("Defendant" or the "City") on February 27, 1978 as a Police
Officer. (Compl. ~ 8.) Plaintiff was promoted twice during his employment- first, to Sergeant in
November 2002 and second, to Detective Sergeant in July 2003. (Id.)
Plaintiff retired from his employment with the City, effective April27, 2012 and began
receiving a service retirement benefit pursuant to his membership in the New York State and
Local Police and Fire R~tirement System. (Id. ~ 9.) Up until his retirement, Plaintiffs certified
collective bargaining representative with regard to his employment with the City was the Long
Beach Police Benevolent Association, Inc. (the "PBA"). (Id.)
At the time of Plaintiffs retirement, the most recent collective bargaining agreement
("CBA") between the City and the PBA was for a term from July 1, 2003 to June 30,2008. (Id. ~
10.) Pursuant to Section 23(e) of that CBA, Plaintiffwas entitled to choose between a lump sum
cash payout for unused sick leave, termination pay and personal leave (the "Separation Payout")
immediately upon his retirement or pursuant to any installment schedule that he chose, provided
that full payment was made within five years of his retirement. (Id.
11.) Plaintiff elected to
receive his Separation Payout in equal, bi-weekly installments, to be paid in full within five years
of his retirement. (Id.)
On March 29, 2013, the City and the PBA were parties to an interest arbitration award
(the "Arbitration Award"), which provided for a base salary increase ranging from 2.75% to
3.75% for City police officers for the period July 1, 2008 to June 30,2015. (Id.
to the Arbitration Award, Plaintiff received a lump sum payment in January 2014 of the
applicable base salary increase for the hours he worked from July 1, 2008 until his last day prior
to retirement on April26, 2012. (ld.1f 14.) As per the Arbitration Award, the City did not
recalculate Plaintifrs Separation Payout to reflect the retroactive wage increase. (ld.; Arbitration
Award at 44, annexed as Ex. B to Berrios Decl.) 1
Pursuant to Section 22(a)(1) of the CBA in effect at the time ofPlaintifrs retirement,
Plaintiff was entitled to continue to be reimbursed by the City for out-of-pocket medical
expenses exceeding certain levels during his retirement. (Compl. 1f 21.) On or about August 12,
2013, the City notified Plaintiff that, pursuant to the Arbitration Award, they would no longer
reimburse its police officer retirees for out-of-pocket medical expenses. (Id. 1f 22; Arbitration
Award at 45.)
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") on or about April 16, 2014, alleging that the City discriminated against
him on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. §§ 621 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec.
Law§§ 290 et seq. (Compl.1f 24.) On January 11,2016, the EEOC issued a Dismissal and
Notice of Rights, advising Plaintiff that, based upon its investigation, it was unable to conclude
that the City had discriminated against Plaintiff. (Id. 1f 27.)
Plaintiff commenced the within action on April 8, 2016, alleging age discrimination in
Although the Court is generally limited to the allegations of the Complaint on a motion
to dismiss pursuant to Rule 12(b)(6), the Court may properly consider the Arbitration Award here
as a document incorporated into the Complaint by reference. See Sira v. Morton, 380 F.3d 57,
67 (2d Cir. 2004) (''A complaint is deemed to include any written instrument attached to it as an
exhibit, materials incorporated in it by reference, and documents that, although not incorporated
by reference, are 'integral' to the complaint.").
violation of the ADEA and the New York Human Rights Law for the City's failure to recalculate
his Separation Payout to reflect the retroactive wage increase provided for in the Arbitration
Award and for the cessation of reimbursement of out-of-pocket medical expenses. The City now
moves to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6).
"To survive 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 v. Igbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Facial
plausibility" is achieved when the "the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). As a general rule, the court is required to accept
as true all of the allegations contained in the complaint. See Iqbal, 556 U.S. at 678; Kassner v.
2nd Ave. Delicatessen, Inc., 496 F.3d 229,237 (2d Cir. 2007).
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements ... are not entitled to the assumption of truth." Iqbal, 556 U.S. at 678-79
(citation omitted); see also Twombly, 555 U.S. at 555 (stating that the Court is "not bound to
accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations," which
state a claim for relief. Iqbal, 556 U.S. at 679. A complaint that "tenders 'naked assertion[s]'
devoid of 'further factual enhancement"' will not suffice. Iqbal, 556 U.S. at 678 (quoting
Twombly, 555 U.S. at 557).
Plaintiffs ADEA Claims are Time-Barred
As a prerequisite to filing an action under the ADEA, a plaintiff must file a charge with
the EEOC within three hundred days of the time that the unlawful employment practice occurred.
See Holowecki v. Fed. Express Corp., 440 F.3d 558, 562 (2d Cir. 2006) (citing cases); see also
29 U.S.C. §§ 626(d)(1)(B), 633 (b). "Failure to file a timely charge acts as a bar to a plaintiffs
ability to bring the action." Lugo-Young v. Courier Network. Inc., No. 10-CV-3197, 2012 U.S.
Dist. LEXIS 33562, at *13 (Mar. 13, 2012) (citing Paneccasio v. Unisource Worldwide. Inc., 532
F.3d 101, 112-13 (2d Cir. 2008)) (additional citation omitted). "Courts strictly adhere to the 300day filing period." Lugo-Young, 2012 U.S. Dist. LEXIS 33562, at *13 n.5 (collecting cases).
Here, the employment practice alleged to be unlawful is the Arbitration Award, which
was issued on May 29,2013. Plaintiff did not file his EEOC charge until April16, 2014, which
is more than 300 days from the date the Arbitration Award was issued, rendering Plaintiffs
ADEA claims time-barred.
In his motion papers opposing dismissal on statute of limitations grounds, Plaintiff argues
that a cause of action for discrimination does not accrue until the Plaintiff knows or has reason to
know of the injury serving as the basis for his claim. Yet, Plaintiff does not claim that he was
unaware of the Arbitration Award at or around the time it was issued. Rather, Plaintiff argues
that Defendants have failed to offer proof that he was aware of the Arbitration Award at or
around the time it was issued, while never stating when, in fact, he did learn of the Arbitration
Award. Plaintiff then goes on to assert that even if his ADEA claims are time-barred, it is
irrelevant because his NYSHRL claims, which are subject to a three-year limitations period, are
The Court finds Plaintifr s arguments disingenuous. Plaintiff intentionally omits when he
learned of the Arbitration Award in an effort to circumvent the statute of limitations hurdle he
faces, attempting to rely on his NYSHRL claims to save this action. Such actions will not be
condoned by the Court.
Accordingly, the Court finds that Plaintifrs ADEA claims are time-barred based on
Plaintifrs failure to file his EEOC charge within 300 days of the alleged unlawful employment
practice. As such, Plaintifrs ADEA claims are hereby dismissed, with prejudice.
Plaintifr s NYSHRL Claims
Having found that Plaintifrs ADEA claim is time-barred, there is no longer any
independent basis for federal jurisdiction in the within action. Although the Court has the
discretion to exercise supplemental jurisdiction over plaintifr s remaining state law claims, see
28 U.S.C. § 1367(a), it declines to do so. See 28 U.S.C. § 1367(c)(3) ("The district courts may
decline to exercise supplemental jurisdiction over a claim ... if ... the district court has
dismissed all claims over which it has original jurisdiction .... "); Marcus v. AT&T Corp., 138
F .3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the
state claims should be dismissed as well.").
Accordingly, Plaintifrs NYSHRL claims are dismissed without prejudice.
For the foregoing reasons, Defendant's motion to dismiss is granted and Plaintiffs
ADEA claims are dismissed, with prejudice. In addition, the Court declines to exercise
supplemental jurisdiction over Plaintiffs NYSHRL claims and those claims are dismissed,
without prejudice. The Clerk of the Court is directed to enter judgment accordingly and to close
Dated: Central Islip, New York
June \ lP, 2017
LEONARDO. WEXLER /
United States District Judge
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