Borden v. City of New York Department of Parks and Recreation

Filing 24

MEMORANDUM OPINION AND ORDER re: 19 MOTION to Dismiss the Amended Complaint filed by City of New York. Plaintiff Derrick Borden, proceeding pro se and in forma pauperis, brings claims for employment discrimination against the Cit y of New York (the "City") in connection with his employment with the New York City Department of Parks and Recreation. The City has moved to dismiss Mr. Borden's amended complaint on the ground that it is barred by a prior settleme nt and general release. Because the claims that Mr. Borden asserts here fall within the scope of that release, the City's motion to dismiss is GRANTED, and Mr. Borden's amended complaint is DISMISSED. For the foregoing reasons, the C ity's motion to dismiss is GRANTED. Because it would be futile for Mr. Borden to replead his claims in light of the unambiguous prior release of those claims, his amended complaint is dismissed with prejudice. See Dougherty v. Town of Hemps tead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) ("An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)."); Palmatier v. Lockheed Martin Corp., No. 1 3-cv-133, 2014 WL 1466489, at *4 n.8 (N.D.N.Y. Apr. 15, 2014) (holding amendment would be futile where claim was barred by general release). The Clerk of Court is directed to enter judgment for the defendant and to close this case. The Court will mail a copy of this order to Mr. Borden, along with all unreported decisions cited herein. SO ORDERED. (Signed by Judge Gregory H. Woods on 2/24/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DERRICK BORDEN,
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Plaintiff,
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-v :
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CITY OF NEW YORK,
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Defendant.
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Revised: April 22, 2016
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 2/24/2017

1:16-cv-716-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
Plaintiff Derrick Borden, proceeding pro se and in forma pauperis, brings claims for
employment discrimination against the City of New York (the “City”) in connection with his
employment with the New York City Department of Parks and Recreation. The City has moved to
dismiss Mr. Borden’s amended complaint on the ground that it is barred by a prior settlement and
general release. Because the claims that Mr. Borden asserts here fall within the scope of that release,
the City’s motion to dismiss is GRANTED, and Mr. Borden’s amended complaint is DISMISSED.
I.

BACKGROUND1
On January 29, 2016, Mr. Borden initiated this action by filing a complaint against the New

York City Department of Parks and Recreation (the “DPR”) using the Court’s form complaint for
employment discrimination cases. ECF No. 2, Compl. On the form, Mr. Borden checked the
boxes indicating that he was asserting claims under Title VII and the New York City Human Rights
Law for discrimination on the basis of his race and color. Compl. at 1, 3. He also checked boxes
indicating that he was complaining of adverse action in the form of failure to hire, failure to

1 Unless otherwise noted, the facts are taken from the amended complaint, and are accepted as true for the purposes of
this motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).

promote, and termination of employment. Compl. at 2. Other than those checkmarks, Mr.
Borden’s initial complaint contained no factual allegations. Attached to the complaint was a rightto-sue letter issued by the Equal Employment Opportunity Commission and the first page of an
Order After Stipulation of Settlement issued by the New York State Division of Human Rights
(“NYSDHR”) on October 22, 2014. Compl. at 5-6. The order incorporated a stipulation of
settlement as the “Order of the Commissioner.” Compl. at 5. It also stated that the stipulation of
settlement was attached to the order as Exhibit A, although Mr. Borden did not include the
stipulation as an attachment to the complaint. Id.
On June 13, 2016, Chief Judge Colleen McMahon issued an order sua sponte pursuant to
28 U.S.C. § 1915(e)(2)(B) , stating that the allegations in Mr. Borden’s complaint were “insufficient
to state a plausible claim for relief under Title VII because they lack any detail” and granting Mr.
Borden leave to file an amended complaint “to allege facts showing that he has a plausible claim for
relief.” ECF No. 4, Order dated June 13, 2016. The case was reassigned to this Court on
September 7, 2016.
On August 19, 2016, Mr. Borden made a submission that was docketed by the District’s Pro
Se Intake Unit as an amended complaint. ECF No. 5, Am. Compl (“AC”). The Court adopts that
interpretation and construes the submission as an amended complaint. Mr. Borden’s amended
complaint contains what appears to be an incomplete handwritten statement and several attached
documents from the New York State Unemployment Insurance Appeal Board and the NYSDHR.
Id.
In the amended complaint, Mr. Borden alleges that he “was hired [by DPR] and was not
given proper attire to do his assignment [in] April, 2013.” AC at 1. More specifically, he alleges that
“[a]ll of [his] co-workers were dressed with protective clothing, which included googles [sic], gloves,
boots and overalls,” but that “[n]o such provisions were made for [him].” AC at 2. Mr. Borden
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also alleges that he “complained that he was injured in the past by the lack of proper work items,
specifically coveralls to protect his entire body.” AC at 1. After bringing this grievance to his
supervisor, “she fired him on July 24, 2013.” Id. According to the amended complaint, the
supervisor stated that she was firing Mr. Borden for excessive absences and, perhaps, other forms of
insubordination. AC at 1-2. However, Mr. Borden alleges that he “worked for [DPR] for
approximately 8 years without any lack of professional work behaviors,” that he was fired “without
just cause,” and that “he was discriminated against.” AC at 1-2.
On August 29, 2013, approximately one month after his termination, Mr. Borden filed a
complaint with the NYSDHR, alleging that DPR had discriminated against him because of his race
and color, and that DPR had retaliated against him for complaining about the alleged discrimination.
AC at 6. In his amended complaint in this action, Mr. Borden alleges that “[DPR] resolved the legal
matter in Plaintiff favor by paying monetary damages in the amount of $2,000 dollar which was
supposed to be for wages which Plaintiff could have earned supposely.” AC at 2. Mr. Borden adds:
“[T]his action still admits culpability. Plaintiff asks to be granted $50,000 for all pain and suffering,
and other further damages whereas being injured by asigned chores.” Id.2
On December 28, 2016, the Court granted the City3 leave to file a motion to dismiss Mr.
Borden’s amended complaint. ECF No. 16. The Court ordered that the City file and serve its
motion no later than January 18, 2017, that Mr. Borden file and serve an opposition to the City’s
motion no later than February 9, 2017, and that the City file any reply no later than one week
Among the documents attached to Mr. Borden’s amended complaint are an NYSDHR Final Investigation Report and
Basis for Determination dated February 24, 2014 and an NYSDHR Determination After Investigation dated February
25, 2015. AC at 7-14. Those documents contain significantly greater factual detail about the alleged events underlying
Mr. Borden’s claims than what is set forth in his handwritten statement. Because a detailed recitation of those facts is
unnecessary to resolving the City’s motion to dismiss, the Court does not set them out in this opinion.
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3 Mr. Borden named DPR as the defendant in his amended complaint. By order dated September 8, 2016, the Court
dismissed Mr. Borden’s claims against DPR because it is not an entity that can be sued under the New York City
Charter. ECF No. 8, Order dated Sept. 8, 2016. In the same order, the Court construed the amended complaint as
asserting claims against the City of New York, and directed the Clerk of Court to amend the caption of this action to
replace DPR with the City pursuant to Fed. R. Civ. P. 21. Id.

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following service Mr. Borden’s opposition. Id.
On January 18, 2017, The City filed a motion to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the ground that it is barred by a release that was
executed in connection with the settlement referenced in the amended complaint. ECF No. 19.
Although, as noted above, Mr. Borden had attached to his initial complaint an NYSDHR document
entitled Order After Stipulation of Settlement, he did not attach that document to his amended
complaint. The City has provided that Order, however, as well as the stipulation of settlement
referenced in and attached to the Order, in connection with its motion. ECF No. 20, Decl. of
Shawna C. MacLeod in Supp. of Def.’s Mot. to Dismiss (“MacLeod Decl.”), Ex. 1.4 The Order
itself states that the parties had signed a settlement, that the “terms of said settlement agreed upon
by the parties are incorporated into the Stipulation annexed hereto as Exhibit A,” and that the
agreed-upon terms set forth in the annexed stipulation “are herein adopted and incorporated by
reference.” Id. Finally, it orders that “the settlement and discontinuance stipulated and agreed upon
by the parties herein be, and the same hereby is, made the Order of the Commissioner.” Id.
The stipulation of settlement, which is both annexed to and incorporated by reference into
the NYSDHR Order, contains the following term:
The Complainant hereby withdraws the verified complaint (Case No. 1016-4179)
before the Division, and before the United States Equal Opportunity
Commission . . . with prejudice and releases and discharges the Respondent, and
Respondent’s affiliated companies, subsidiaries, parent companies, and directors,
shareholders, officers, employees, attorneys, agents, representatives, and
successors and assigns, and all persons acting with or on behalf of them, from all
charges, complaints, claims, liabilities, . . . actions, or causes of action . . . of any
4 The Court may consider these documents in resolving the City’s 12(b)(6) motion without converting it to a motion for
summary judgment. “Although the consideration of a Rule 12(b)(6) motion to dismiss is generally limited to the facts
stated on the face of the complaint, a court may also consider documents appended to the complaint, documents
incorporated by reference, and matters of which judicial notice may be taken.” Evans v. N.Y. Botanical Garden, No. 02-cv3591 (RWS), 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002) (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44
(2d Cir. 1991); see also id. (considering several NYSDHR documents on a 12(b)(6) motion because they “constitute the
public records of an administrative body, of which this Court may take judicial notice without converting the motion
into one for summary judgment”); Frederick v. Wells Fargo Home Mortg., No. 13-cv-7364 (DLI), 2015 WL 1506394, at *1
n.2 (E.D.N.Y. Mar 30, 2015) (same); Johnson v. Cty. of Nassau, 411 F. Supp. 2d 171 (E.D.N.Y. 2006) (same).

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nature whatsoever, including but not limited to employment discrimination claims
arising under local, state or federal statute, regulation, or ordinance relating to
employment discrimination or other employment conditions, or prohibiting
termination or retaliation for reporting a violation of the law, or any other claim
related to or arising out of the Complainant’s employment by the Respondent,
known or unknown, which the Complainant may ever before have had or claim
to have had from the beginning of the world through the date of this agreement.
Id. at 4 (¶ 6). The stipulation dated July 9, 2014 and is executed by Mr. Borden and an assistant
corporation counsel on behalf of DPR. Id. at 5.
Mr. Borden has not filed an opposition to the City’s motion, despite the fact that both the
Court’s December 28, 2016 briefing schedule order and the City’s notice of motion―each of which
were served on him―stated that he must do so by February 9, 2017. The Court has given Mr.
Borden sufficient time to submit an opposition to the City’s motion. Because he has elected not to
do so, the Court will resolve the motion without the benefit of his arguments.
II.

LEGAL STANDARD
“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. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this plausibility
standard, the plaintiff must “plead[ ] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court “must accept all allegations in the complaint as true and draw all inferences in the
nonmoving party’s favor.” LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir.
2009). The Court, however, is not required to credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678.
Because he is proceeding pro se, the Court must liberally construe Plaintiff’s submissions and
interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
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470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original); see also, e.g., Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be liberally construed . . . .”) (citation omitted). This
mandate “‘applies with particular force when a plaintiff’s civil rights are at issue.’” Bell v. Jendell, 980
F. Supp. 2d 555, 558 (S.D.N.Y. 2013) (quoting Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640
F.Supp.2d 345, 348 (S.D.N.Y. 2009)). However, “the liberal treatment afforded to pro se litigants
does not exempt a pro se party from compliance with relevant rules of procedural and substantive
law.” Id. at 559 (internal quotation marks and citation omitted).
III.

DISCUSSION
Under New York law, “[r]eleases are contracts and their interpretation is governed by

principles of contract law.” Shklovskiy v. Khan, 709 N.Y.S.2d 208, 209 (App. Div. 2000).5 When “the
language of a release is clear and unambiguous, the signing of the release is a ‘jurial act’ binding on
the parties.” Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 952 N.E.2d 995, 1000
(N.Y. 2011) (quoting Booth v. 3669 Delaware, 703 N.E.2d 757, 758 (N.Y. 1998)); see also Pampillonia v.
RJR Nabisco, Inc., 138 F.3d 459, 463 (2d Cir. 1998) (“Under New York law, a release that is clear and
unambiguous on its face and which is knowingly and voluntarily entered into will be enforced.”). “A
release may be invalidated, however, for any of ‘the traditional bases for setting aside written
agreements, namely duress, illegality, fraud, or mutual mistake.’” Id. (quoting Mangini v. McClurg, 249
N.E.2d 386, 390 (N.Y. 1969)).
In consideration of the $2,000 settlement payment received from DPR, Mr. Borden agreed
to “release[ ] and discharge[ ] the [DPR], and [its] affiliated companies, . . . officers, employees,
attorneys, agents, representatives, and successors and assigns, and all persons acting with or on

5 This principle applies equally in cases involving pro se plaintiffs. Cuadrado v. Zito, No. 13-cv-3321-VB, 2014 WL
1508609, at *2 (S.D.N.Y. Mar. 21, 2014) (citing Duran v. J.C. Refinishing Contracting Corp., 421 F. App’x 20, 21 (2d Cir.
2011)); see also Case v. City of New York, No. 12-cv-2189 (AJN), 2012 WL 5951296 (S.D.N.Y. Nov. 28, 2012) (holding that
the written offer and acceptances between the pro se plaintiff and City defendant formed a valid and binding settlement
agreement).

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behalf of them, from all charges, complaints, claims, liabilities, . . . actions, or causes of action . . . of
any nature whatsoever.” MacLeod Decl., Ex. 1, at 4 (¶ 5). Such claims expressly included, but were
not limited to, “employment discrimination claims . . . or any other claim related to or arising out of
the [Plaintiff’s] employment by the [DPR], known or unknown, which the [Plaintiff] may ever before
have had or claim to have had, from the beginning of the world through the date of this agreement,”
which was July 9, 2014. Id.
The language of the release is unambiguous. See Cuadrado, 2014 WL 1508609, at *2-3
(holding that substantially identical wording was unambiguous). As the only entity that Mr. Borden
could sued for the DPR’s alleged violations of law, see N.Y. City Charter ch. 17, § 396, the City falls
within the group of affiliates of DPR against whom potential claims were released. Indeed, as noted
above, Mr. Borden brought this suit directly against DPR, which is directly referenced in the release,
and DPR was replaced with the City only upon an order of the Court. Additionally, Mr. Borden
released all claims “from the beginning of the world through the date of this agreement,” which
would include all claims that had accrued prior to July 9, 2014. Because Mr. Borden alleges that he
was fired on July 24, 2013, AC at 1, he necessarily released the claims asserted in this action when he
signed the release nearly one year later. See, e.g., Lucio v. Curran, 2 N.Y.2d 157, 161-62 (N.Y. 1956)
(“[W]ords of general release are clearly operative not only as to all controversies and causes of action
between the releasor and releasees which had, by that time, actually ripened into litigation, but to all
such issues which might then have been adjudicated as a result of pre-existent controversies.”).
To the extent that Mr. Borden’s amended complaint alleges that he understood the release to
only bar claims for lost wages, see AC at 2, the unambiguous language of the release, rather than Mr.
Borden’s subjective understanding, controls. HOP Energy, L.L.C. v. Local 553 Pension Fund, 678 F.3d
158, 162 (2d Cir. 2012) (“With unambiguous contracts, a party’s subjective intent and understanding
of the terms is irrelevant.”). In addition to the general release, the stipulation of settlement expressly
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states that the $2,000 payment was made and accepted “in complete settlement of [the NYSDHR]
complaint,” not just for the portion concerning lost wages. MacLeod Decl., Ex. 1, at 3 (¶ 2). Since
Mr. Borden does not allege “duress, illegality, fraud, or mutual mistake,” see Centro Empresarial
Cempresa S.A., 952 N.E.2d at 1000, he is bound by the terms of the General Release and this lawsuit
must be dismissed.
IV.

CONCLUSION
For the foregoing reasons, the City’s motion to dismiss is GRANTED. Because it would be

futile for Mr. Borden to replead his claims in light of the unambiguous prior release of those claims,
his amended complaint is dismissed with prejudice. See Dougherty v. Town of Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (“An amendment to a pleading will be futile if a proposed
claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).”); Palmatier v. Lockheed
Martin Corp., No. 13-cv-133, 2014 WL 1466489, at *4 n.8 (N.D.N.Y. Apr. 15, 2014) (holding
amendment would be futile where claim was barred by general release).
The Clerk of Court is directed to enter judgment for the defendant and to close this case.
The Court will mail a copy of this order to Mr. Borden, along with all unreported decisions
cited herein.
SO ORDERED.
Dated: February 24, 2017
New York, New York

_____________________________________
GREGORY H. WOODS
United States District Judge

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