Jones et al v. City of Buffalo et al
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 5 Motion to Dismiss. Signed by William M. Skretny, Chief Judge on 3/31/2014. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CLEOTIS JONES, JR., and
WILLIE WATSON, III,
DECISION AND ORDER
CITY OF BUFFALO, BUFFALO FIRE
Cleotis Jones, Jr. and Willie Watson, III, both black males, were selected for
the Buffalo Fire Department’s twelve-week Fire Training Academy, which included
classroom and field work. At the end of the training period, however, they both had low
“averages” and were dismissed. Jones and Watson now bring this action, alleging that their
dismissal violated Title VII of the 1964 Civil Rights Act and New York State’s Human Rights
Invoking Federal Rules of Procedure 12(b)(1), 12(b)(6), and 12(c), the City of
Buffalo timely moves to dismiss the complaint.1 It argues that (1) some claims must be
dismissed because Plaintiffs failed to exhaust administrative remedies, (2) other claims
must be dismissed because they are legally insufficient, and (3) the remaining claims,
those asserted under New York’s Human Right’s Law, must be dismissed because
Plaintiffs failed to file a notice-of-claim.
A case is properly dismissed for lack of subject matter jurisdiction under Rule
Plaintiffs argue that the City’s motion is untimely. But Plaintiffs incorrectly rely on the date of this
Court’s scheduling order instead of the date that the City filed its motion to dismiss.
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the
burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal pleading standards are
generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.
R. Civ. P. 8(a)(2). But the plain statement must “possess enough heft to show that the
pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1966, 167 L. Ed. 2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff’s favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
Legal conclusions, however, are not afforded the same presumption of truthfulness. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (“The tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”).
“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.’” Id. at 678 (quoting
Twombly, 550 U.S. at 570). Labels, conclusions, or a “formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility exists when
the facts alleged allow for a reasonable inference that the defendant is liable for the
misconduct charged. Iqbal, 556 U.S. at 678. The plausibility standard is not, however, a
probability requirement: the pleading must show, not merely allege, that the pleader is
entitled to relief. Id. at 678; Fed. R. Civ. P. 8(a)(2). Well-pleaded allegations must nudge
the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.2
To bring a Title VII claim in federal court, a plaintiff must ordinarily first
exhaust his administrative remedies by first presenting his claims to the Equal Employment
Opportunity Commission (EEOC) or a state administrative agency. Claims not raised at the
administrative level cannot be raised in court unless they are “reasonably related to those
that were filed with the agency.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d
683, 686 (2d Cir. 2001). “A claim is considered reasonably related if the conduct
complained of would fall within the scope of the EEOC investigation which can reasonably
be expected to grow out of the charge that was made.” Fitzgerald v. Henderson, 251 F.3d
345, 351 (2d Cir. 2001) (internal quotation marks and citation omitted). Claims can also be
“reasonably related” if the plaintiff “alleg[es] retaliation by an employer against an employee
for filing an EEOC charge,” or if (2) the plaintiff “alleges further incidents of discrimination
carried out in precisely the same manner alleged in the EEOC charge.” Butts v. City of New
York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by
statute on other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684
Plaintiffs allege in their complaint filed in this action, but not at the administrative
level, that the City discriminatorily failed to “recycle” them – this apparently refers to an
A motion to dismiss under Federal Rules of Civil Procedure Rule 12(c) is judged by the same
standards applicable to a Rule 12(b)(6) motion. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638,
644 (2d Cir. 1998).
opportunity for a firefighter to enter a subsequent class and rectify any previous
shortcomings. The City argues that these claims were not properly exhausted because
they were not alleged in the state administrative complaint. Indeed, there can be no dispute
that the charge regarding the failure to “recycle” the Plaintiffs was not presented at the
administrative level; instead both Plaintiffs’ focus on the City’s failure to provide them
remedial classes and their alleged unlawful termination due to race. Thus, the question
now becomes whether the “recycling” claim is “reasonably related” to those asserted in the
state and EEOC charges.
But Plaintiffs offer no response to this question. Instead, they simply recount
undisputed facts: that they both timely filed charges of discmination with the New York
State Division of Human Rights and that those complaints were cross-filed with the EEOC.
Without any relevant authority or argument whatsoever, this Court will not find that
the claims regarding the City’s failure to offer Plaintiffs further classes to complete their
training is reasonably related to the charges alleging unlawful discharge. See, e.g., Miller
v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985) (failure to rehire is distinct from
allegation of unlawful discharge). Accordingly, claims premised on this failure will be
Plaintiffs’ claims relating generally to their discharge, however, remain in tact
because those claims were raised at the administrative level. Yet, the City seeks to dismiss
those claims on other grounds, arguing that Plaintiffs have failed to meet the pleading
requirement set out in Iqbal and Twombly. On this ground, the City’s motion is denied.
Title VII prohibits discrimination with respect to the “compensation, terms,
conditions, or privileges of employment” on the basis of “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2. Hence, Title VII prohibits an employer from
discriminating against an employee because of his race.
Pointing to the “Rules and Regulations Governing Trainees,” which provide that
remedial classes “will be scheduled as required,” Plaintiffs allege that the City failed to offer
them these classes. They further allege that they were not provided the classes because
they are black, and that “Caucasian recruits were assisted by Caucasian Officers assigned
to the academy.” (Compl., ¶ 24) (capitulation in original). Finally, they allege that, if these
classes were provided, they could have raised their scores and avoided dismissal. While
the City is of course free to discharge trainees who fail to meet the Fire Department‘s
rigorous standards, it cannot offer assistance to white trainees but not black trainees. See
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283, 96 S. Ct. 2574, 2580, 49 L.
Ed. 2d 493 (1976) (“While [employer] may decide that participation in a theft of cargo may
render an employee unqualified for employment, this criterion must be ‘applied  alike to
members of all races,’ and Title VII is violated if, as petitioners alleged, it was not.”)
Accepting Plaintiffs’ allegations as true – as this Court must – Plaintiffs have sufficiently
stated a claim under Title VII, and the City’s motion on this ground is denied.
Last, the City moves to dismiss Plaintiffs’ state law claims for failure to
comply with New York State General Municipal Law §50-e, which requires that a written
notice-of-claim be filed with the municipality within 90 days of accrual of the action. But in
a situation such as this – where § 50-e is not broadened by county or education law and
where the action is one for a violation of New York’s Human Rights Law – no notice-ofclaim is required. See Picciano v. Nassau Cnty. Civil Serv. Comm'n., 290 A.D.2d 164, 170,
736 N.Y.S.2d 55 (2d Dep’t 2001) (collecting First and Second Appellate Division cases)
(“General Municipal Law § 50-i, which requires service of a notice of claim in compliance
with General Municipal Law § 50-e in an action to recover damages for ‘personal injury,
wrongful death or damage to real or personal property,’ does not encompass a cause of
action based on the Human Rights Law.”); Margerum v. City of Buffalo, 63 A.D.3d 1574,
1580, 880 N.Y.S.2d 820, 825 (4th Dep’t 2009); Grasso v. Schenectady Cnty. Pub. Library,
30 A.D.3d 814, 816, 817 N.Y.S.2d 186, 188 (3rd Dep’t 2006); Anderson v. City of New
York, No. 06-CV-5726 RRM RER, 2012 WL 6720694, at *5-*6 (E.D.N.Y. Dec. 27, 2012).
(“[T]he weight of authority within this Circuit holds that § 50–e is limited on its face to claims
founded in tort, and therefore cannot apply to employment discrimination claims.”). The
City’s motion on this ground is therefore denied.
IT HEREBY IS ORDERED, that the City’s motion to dismiss (Docket No. 5) is
GRANTED in part and DENIED in part.
Dated: March 31, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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