Fumarelli et al v. City of Yonkers

Filing 20

OPINION AND ORDER re: 8 MOTION to Dismiss filed by City of Yonkers. The motion to dismiss is GRANTED. The Clerk is instructed to terminate the motion (Doc. #8) and close this case. SO ORDERED. (Signed by Judge Vincent L. Briccetti on 5/29/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
ROBERT FUMARELLI, WILLIAM PARKER, :
ARTHUR RIVERA, STEPHEN RONAN,
:
THOMAS SPAUN, and all other persons
:
similarly situated,
:
Plaintiffs,
:
:
v.
:
:
CITY OF YONKERS,
:
Defendant.
:
--------------------------------------------------------------x

OPINION AND ORDER
17 CV 6922 (VB)

Briccetti, J.:
Plaintiffs Robert Fumarelli, William Parker, Arthur Rivera, Stephen Ronan, and Thomas
Spaun bring this putative class action against the City of Yonkers (the “City”) for breach of
contract and violations of the Americans with Disabilities Act (“ADA”), Rehabilitation Act, and
New York State Human Rights Law (“NYSHRL”).
Now pending is the City’s motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6).
(Doc. #8).
For the following reasons, the motion is GRANTED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
In deciding the pending motion to dismiss, the Court accepts as true all well-pleaded
factual allegations in the complaint, and draws all reasonable inferences in plaintiffs’ favor, as
summarized below.
Section 207-a(1) of the New York General Municipal Law (“GML”) requires
municipalities to pay a firefighter who is injured in the performance of his duties his “regular
salary or wages” until his disability has ceased. However, when a firefighter is granted a New
1

York State and Local Retirement System/New York State and Local Police and Fire Retirement
System (“NYSLRS”) disability retirement allowance, the municipality need only pay the
difference between the NYSLRS retirement allowance and the amount of the firefighter’s
“regular salary or wages” (“207-a(2) payments”). GML § 207-a(2).
Plaintiffs are permanently disabled retired City firefighters who suffered line-of-duty
injuries. Plaintiffs were certified as disabled under the NYSLRS, and were granted NYSLRS
retirement allowances. As such, the City need only pay them 207-a(2) payments.
Since at least 1982, the City included certain additional benefits known as check-in pay,
night differential pay, and holiday pay (what plaintiffs describe as “full pay components”) in the
calculation of “regular salary and wages” when making 207-a(2) payments. But on December 9,
2015, the City notified plaintiffs and the putative class members that it had overpaid them by
including the full pay components in its calculation of “regular salary and wages.” The City
stated it intended to adjust future 207-a(2) payments to exclude the full pay components and to
recoup any past overpayments.
The City then held due process hearings at which plaintiffs and the putative class
members objected to the adjustment and recoupment. The hearing officers recommended to the
City Commissioner of Human Resources that plaintiffs’ and the putative class members’
objections be denied. The Commissioner adopted the recommendations and notified plaintiffs
and the putative class members that it would reduce future 207-a(2) payments and recoup past
overpayments to permanently disabled retired firefighters. However, the City continued to
include the full pay components in the calculation of “regular salary or wages” for temporarily
disabled firefighters and non-disabled retired firefighters.

2

On March 17, 2016, Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, submitted an
arbitration demand with the American Arbitration Association, alleging the City’s decision to
reduce 207-a(2) payments violated their collective bargaining agreement with the City. The City
moved in Supreme Court, Westchester County, for an order permanently staying arbitration. The
state court initially denied the City’s motion, but on October 17, 2016, it granted the stay after
the City moved to reargue. An appeal of the state court’s decision is currently pending before
the Appellate Division, Second Department.
Separately, on June 30, 2016, plaintiffs sued the City in an Article 78 proceeding in
Supreme Court, Westchester County. Plaintiffs’ Article 78 petition included eight causes of
action. One of the causes of action, titled, “The City’s Singling Out Permanently Disabled
Retirees,” alleged: “The City’s decision to single out permanently disabled retirees receiving
benefits under GML 207-a(2) while continuing a higher benefit for injured Fire Fighters and
Officers receiving benefits under GML 207-a(1) is arbitrary, illegal and constitutes an error of
law.” (Moran Aff. Ex. A (“Petition”) ¶ 68; see also id. ¶ 59).
On March 10, 2017, the state court held that the City’s decision to reduce plaintiffs’
future 207-a(2) payments by deducting the full pay components was not arbitrary or capricious,
but the decision to recoup past overpaid 207-a(2) payments was arbitrary and capricious, and
lacked a rational basis. The court thus dismissed plaintiffs’ petition except to the extent it found
the City’s decision to recoup overpaid 207-a(2) payments was arbitrary and capricious and an
abuse of discretion, and enjoined the City from recouping those payments.
On April 4, 2017, plaintiffs appealed the March 10, 2017, state court decision. That
appeal also is pending before the Appellate Division, Second Department. On August 1, 2017,
the lower court denied plaintiffs’ motions to reargue and renew.

3

Plaintiffs commenced this action on September 12, 2017. The City moved to dismiss on
November 7, 2017 (Doc. #8), after which the Court sua sponte granted plaintiffs an opportunity
to file an amended complaint (Doc. #11). Plaintiffs declined to do so. (Doc. #12).
DISCUSSION
I.

Standard of Review
The City argues the Court should dismiss plaintiffs’ claims pursuant to Rule 12(b)(1) for

lack of subject matter jurisdiction, as they are barred under principles of preclusion. However,
“preclusion . . . is not a jurisdictional matter,” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 293 (2005), and therefore the City’s argument is properly analyzed under Rule
12(b)(6), see TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014).
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court
evaluates the sufficiency of the operative complaint under the “two-pronged approach”
articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First,
plaintiffs’ legal conclusions and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are not entitled to the assumption of truth and are
thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d
150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct

4

alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
In considering a motion to dismiss, “a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010). The Court may nevertheless consider a document not incorporated by reference if the
complaint “‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’
to the complaint.” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).
However, “it must be clear on the record that no dispute exists regarding the authenticity or
accuracy of the document.” Id. (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).
“It must also be clear that there exist no material disputed issues of fact regarding the relevance
of the document.” Id. (quoting Faulkner v. Beer, 463 F.3d at 134). The Court may also take
judicial notice of public records. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels &
Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).
II.

Collateral Estoppel
The City argues the state court’s adjudication of the Article 78 petition collaterally estops

plaintiffs’ discrimination claims. Plaintiffs argue collateral estoppel does not apply to their
claims because they did not allege discrimination in the Article 78 proceeding, and therefore
there is no identity of issues and they did not have a full and fair opportunity to litigate.
The Court agrees that collateral estoppel does not apply to plaintiffs’ claims insofar as
they rely on the City’s decision to recoup past 207-a(2) payments. However, plaintiffs are

5

collaterally estopped from asserting claims based on the City’s decision to reduce future 207-a(2)
payments.
“Under 28 U.S.C. § 1738, we give state court judgments the preclusive effect the courts
of that state would give them.” McGuinn v. Smith, 523 F. App’x 764, 765 (2d Cir. 2013)
(summary order). Under New York law, which applies here, collateral estoppel has two
elements: “First, the identical issue necessarily must have been decided in the prior action and
be decisive of the present action, and second, the party to be precluded from relitigating the issue
must have had a full and fair opportunity to contest the prior determination.” Jenkins v. City of
N.Y., 478 F.3d 76, 85 (2d Cir. 2007) (quoting Juan C. v. Cortines, 89 N.Y.2d 659, 667 (1997)).
“The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity
of the issues . . . whereas the party attempting to defeat its application has the burden of
establishing the absence of a full and fair opportunity to litigate the issues.” Constantine v.
Teachers Coll., 448 F. App’x 92, 93–94 (2d Cir. 2011) (summary order) (quoting Evans v.
Ottimo, 469 F.3d 278, 281–82 (2d Cir. 2006)) (alterations in original). Collateral estoppel “‘is
based upon the general notion that it is not fair to permit a party to relitigate an issue that has
already been decided against it.’” Juan C. v. Cortines, 89 N.Y.2d at 667.
“[W]here an Article 78 petition seeks annulment of a [decision] on the ground that it was
discriminatory or retaliatory, a determination by the state courts that the decision was supported
by substantial evidence ‘necessarily implie[s] rejection of [the] claim that [the decision] was
discriminatory and retaliatory’ and thus forecloses a similar contention in a subsequent federal
action.” Richardson v. City of N.Y., 2004 WL 325631, at *1 (S.D.N.Y. Feb. 20, 2004) (quoting
Latino Officers Ass’n v. City of N.Y., 253 F. Supp. 2d 771, 787 (S.D.N.Y. 2003)). Such claims

6

are foreclosed even when the state court did not expressly reject the discrimination claims. See
Latino Officers Ass’n v. City of N.Y., 253 F. Supp. 2d at 787.
Here, although plaintiffs did not use the word “discrimination” in their Article 78
petition, they titled their third cause of action, “The City’s Singling Out Permanently Disabled
Retirees.” (Petition ¶ 68). Plaintiffs alleged: “The City’s decision to single out permanently
disabled retirees receiving benefits under GML 207-a(2) while continuing a higher benefit for
injured Fire Fighters and Officers receiving benefits under GML 207-a(1) is arbitrary, illegal and
constitutes an error of law.” (Id. ¶ 68; see also id. ¶ 59).
As plaintiffs specifically argued the City’s decision was arbitrary and illegal because the
City singled out permanently disabled retirees, the state court’s holding that the City’s decision
to reduce plaintiffs’ future 207-a(2) payments was not arbitrary or capricious necessarily implies
rejection of the claim that that aspect of the decision was discriminatory. However, the state
court’s holding that the City’s decision to recoup past 207-a(2) payments was arbitrary and
capricious and lacked a rational basis was not decided against plaintiffs, and therefore does not
imply a rejection of plaintiff’s discrimination claim with regard to that aspect of the City’s
decision.
Plaintiffs argue collateral estoppel does not apply at all because plaintiffs may prove a
mixed-motive disability discrimination claim.
The Court is not persuaded. Even if ADA mixed-motive discrimination claims are still
viable after the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167
(2009), see Forrester v. Prison Health Servs., Inc., 651 F. App’x 27, 28 (2d Cir. 2016) (summary
order), the state court’s decision necessarily rejected plaintiffs’ argument that the City’s decision
to reduce plaintiffs’ future 207-a(2) payments was discriminatory. See McGuinn v. Smith, 2012

7

WL 12887595, at *7 n.10 (S.D.N.Y. Sept. 12, 2012), rev’d on other grounds, 523 F. App’x 764
(2d Cir. 2013) (summary order).
Accordingly, plaintiffs may attempt to assert claims based on the City’s decision to
recoup past 207-a(2) payments, but are estopped from asserting claims based on the City’s
decision to reduce future 207-a(2) payments.
III.

Discrimination Claims
The City argues plaintiffs fail to state discrimination claims under the ADA, the

Rehabilitation Act, and the NYSHRL.
The Court agrees.
Because the scope of the disability discrimination provisions of NYSHRL are similar to
those of the ADA and Rehabilitation Act, the Court analyzes the claims together. Camarillo v.
Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008).
Title I of the ADA provides: “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
“To state a claim for discrimination under the ADA, a plaintiff must allege facts which
plausibly suggest, inter alia, that she ‘suffered [an] adverse employment action because of [her]
disability.’” Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (summary
order) (quoting Giordano v. City of N.Y., 274 F.3d 740, 747 (2d Cir. 2001)) (alterations in
original). An adverse employment action “entails a ‘materially adverse change in the terms and
conditions of employment.’” Quadir v. N.Y.S. Dep’t of Labor, 39 F. Supp. 3d 528, 541

8

(S.D.N.Y. 2014) (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir.
2004)) (emphasis in original).
Here, plaintiffs have failed to allege a materially adverse change in the terms and
conditions of employment. The state court enjoined the City from recouping past 207-a(2)
payments, thereby preventing the City from taking adverse action. Moreover, plaintiffs are
estopped from asserting claims based on the City’s decision to reduce plaintiffs’ future 207-a(2)
payments. Thus, plaintiffs fail to allege an adverse employment action.
Accordingly, plaintiffs fail to state discrimination claims under the ADA, the
Rehabilitation Act, and the NYSHRL.
IV.

Supplemental Jurisdiction
Plaintiffs also bring a state law claim for breach of contract, alleging the City deprived

them of their contractual right to 207-a(2) payments with full pay components. Having
dismissed all of plaintiffs’ federal claims, there are no longer any claims remaining over which
the Court has original jurisdiction. The Court declines to exercise supplemental jurisdiction over
plaintiffs’ remaining state law claim. See 28 U.S.C. § 1367(c)(3).
CONCLUSION
The motion to dismiss is GRANTED.
The Clerk is instructed to terminate the motion (Doc. #8) and close this case.
Dated: May 29, 2018
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge
9