Friedman v. Columbia University et al
Filing
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OPINION. The motion to dismiss is granted, and the case is dismissed in its entirety. This opinion resolves the motion listed as document number 24 in case 12 Civ. 9275. re: 24 MOTION to Dismiss Plaintiff's Complaint Pursuant to Rules 12(b)(1) and 12(b)(6) filed by Lucinda Durning, et al., David Brenner, Lisa Hogarty, Columbia University. (Signed by Judge Thomas P. Griesa on 3/13/2014) Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MOSHE FRIEDMAN,
Plaintiff,
12 Civ. 9275
v.
OPINION
COLUMBIA UNIVERSITY et al.,
Defendant.
Moshe Friedman, proceeding pro se, alleges that Columbia University
and several supervisors wrongfully terminated him from his position as an
office administrator. He claims that the defendants terminated him because of
his religion, national origin, age, and gender in violation of federal, state, and
local law.
Defendants move to dismiss the case. The motion is granted.
The Complaint
Friedman was employed as an office administrator at Columbia
University Medical Center’s Radiation Safety Office. On January 7, 2010,
defendant Lisa Hogarty, Chief Operating Officer of Columbia University Medical
Center, informed Friedman that he would be terminated on February 1, 2010,
as part of a reorganization of the Radiation Safety Office. Hogarty told
Friedman that the Radiation Safety Office would become part of the Office of
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Environmental Health and Safety and that his position would be eliminated.
Salmen Loksen, a radiation safety officer, and Bruce Emmer, a physicist, were
also terminated as a result of the restructuring.
Friedman alleges that the reorganization was merely a pretext; he alleges
that he, Loksen, and Emmer were terminated because they are practicing
Orthodox Jews and because of their age. He contends that they were easily
identifiable as Orthodox Jews because of their yarmulkas and gray beards. No
other employees were terminated as a result of the reorganization, including
four “casual employees.” Friedman asserts that the reorganization was
unnecessary and will have a negative impact on the Medical Center.
At this point, defendants assert that Friedman signed a severance
agreement and released all his claims against them. The court mentions this
allegation for context, but the release is not properly before this court at this
stage in the proceedings.
Friedman also alleges a claim of retaliation. On the form complaint that
Friedman filed, he checked the box next to retaliation, but he alleges no facts
to support or explain the basis of this claim. Construing the complaint
liberally and considering the documents attached to the complaint, it appears
that Friedman alleges that the defendants retaliated against him by refusing to
return his personal property after he filed employment-discrimination
complaints against them. Friedman alleges that Columbia promised to return
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his personal computer files which were left on Columbia’s computers after he
was terminated.
In addition to Columbia University, Friedman also names David J.
Brenner, Lisa Hogarty, and Lucinda During as defendants. He alleges that
defendants’ actions violated Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the New York State Human Rights Law,
and the New York City Human Rights Law.
Procedural History
On January 5, 2011, Friedman filed a complaint with the New York City
Commission on Human Rights, alleging discrimination on the basis of race,
age, sex, and religion based on his termination. The Commission rejected
Friedman’s complaint for failure to state a claim because Friedman had
knowingly and voluntarily executed a release of claims in exchange for a
severance payment. Moreover, Friedman was represented by counsel when he
executed the release. Friedman twice objected to this determination, but in
response the Commission twice determined that Friedman had “knowingly and
voluntarily entered into a valid severance agreement, thereby waiving the right
to sue [his] former employer for the termination of [his] employment.”
On January 11, 2011, Friedman filed a complaint with the New York
State Division on Human Rights, alleging that his termination was the result of
Columbia’s unlawful discrimination on the basis of his age, creed, and gender.
But in a decision dated February 17, 2011, the Division dismissed this
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complaint as untimely, and the New York State Supreme Court, New York
County, affirmed that decision.
On July 29, 2011, Friedman filed a second complaint with the Division
on Human Rights, alleging that Columbia retaliated against him for filing the
prior complaints. He alleged that Columbia failed to abide by the terms of his
severance agreement by not returning his personal property. On December 1,
2011, following an investigation, the Division found that there was no probable
cause to show that Columbia had failed to make a good faith effort to return
Friedman’s personal computer files. The Supreme Court, New York County,
affirmed the Division’s determination.
On September 13, 2012, Friedman filed a charge with the U.S. Equal
Employment Opportunity Commission, alleging that Columbia’s actions
violated Title VII of the Civil Rights Act and the Age Discrimination in
Employment Act. On September 20, 2012, the Commission closed its file
because Friedman’s charge was not timely filed.
Discussion
To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must plead sufficient facts to state a claim for relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding a motion under Rule
12(b)(6), a court must accept as true the facts alleged in the complaint. Id.
The court may, however, consider relevant filings with the Equal Employment
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Opportunity Commission and analogous state agencies because the plaintiff
must rely on these filings to establish that his federal lawsuit is timely.
Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 565–66 (2d Cir. 2006), aff’d, 552
U.S. 389 (2008).
A pro se plaintiff “is entitled to a particularly liberal reading” of his
complaint. Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011). But
even a pro se plaintiff must plead enough facts to state a claim to relief that is
plausible on its face. Johnson v. City of New York, 669 F. Supp. 2d 444, 448–
49 (S.D.N.Y. 2009).
Friedman’s State and Local Law Claims
Defendants contend that Friedman is barred from pursuing his state and
local law claims in court because he previously sought a remedy before a state
agency. Under New York law, once a plaintiff brings an employmentdiscrimination claim in an administrative agency, he may not bring a suit
arising out of the same transaction again as a plenary action in court. York v.
Ass’n of Bar of City of New York, 286 F.3d 122, 127 (2d Cir. 2002). A plaintiff
must elect whether to seek a remedy under state and local law in the
administrative agency or in court; he cannot proceed in both forums. Tardd v.
Brookhaven Nat. Lab., 407 F. Supp. 2d 404, 419 (E.D.N.Y. 2006). Thus, both
the New York State Human Rights Law and the New York City Human Rights
Law require dismissal of a suit in court—whether state or federal—if the
plaintiff lodges a complaint with either the New York State Division on Human
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Rights or the New York City Commission on Human Rights based on the same
allegedly discriminatory actions. Higgins v. NYP Holdings, Inc., 836 F. Supp.
2d 182, 187 (S.D.N.Y. 2011).
Here, Friedman attempts to bring an employment-discrimination claim
under state and local law that he has already pursued in both the state and
city administrative agencies. Once he received an unfavorable decision from
the agencies, Friedman’s remedy was to appeal that decision within the state
court system; he was not entitled relitigate his claims in the United States
District Court, in contravention of the statutory schemes detailed above.
Accordingly, Friedman’s claims under state and local law are dismissed.
Friedman’s Federal Law Claims
Friedman brings federal claims under Title VII and the Age
Discrimination in Employment Act (“ADEA”). Both statutes require a plaintiff
to file a charge with the Equal Employment Opportunity Commission (“EEOC”)
before bringing suit in federal court. See Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam). The EEOC
charge must be filed no more than 300 days “after the alleged unlawful practice
occurred.” 42 U. S. C. § 2000e-5(e)(1); 29 U. S. C. §§ 626(d)(1)(B), 633(b); see
also Hill v. Citibank Corp., 312 F. Supp. 2d 464, 472 (S.D.N.Y. 2004). The
filing deadline for a charge of discrimination acts as a statute of limitations,
and a failure to timely file a charge acts as a bar to a plaintiff’s action. See Hill,
312 F. Supp. 2d at 472. The timeliness of a discrimination claim is measured
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from the date the claimant had notice of the allegedly discriminatory action.
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996).
Here, Friedman is barred from pursuing his Title VII and AEDA claims in
federal court because he did not file a timely EEOC charge. Friedman was
notified of his termination on January 7, 2010, and the termination was
effective February 1, 2010. But Friedman did not file his EEOC charge until
September 13, 2012, well beyond the 300-day limit. Moreover, Friedman never
filed an EEOC charge alleging retaliation.
Friedman contends that even if his charge was untimely, he can
piggyback on his coworker’s charge: Loksen filed a timely EEOC charge. In
other words, Friedman contends that his charge should be deemed filed at the
same time as Loksen’s. But an individual who has previously filed an EEOC
charge cannot piggyback onto someone else’s EEOC charge. Holowecki, 440
F.3d at 564. A plaintiff cannot use the piggyback rule to avoid the
consequences of his own untimely EEOC charge. Id.
Friedman’s claims under federal law are dismissed.
Conclusion
The motion to dismiss is granted, and the case is dismissed in its
entirety. This opinion resolves the motion listed as document number 24 in
case 12 Civ. 9275.
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So ordered.
Dated: New York, New York
March 13, 2014
Thomas P. Griesa
United States District Judge
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Mailed from Chambers to:
Moshe Friedman
P.O. Box 302
South Fallsburg, NY 12779
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