Ciprian v. City of Providence et al

Filing 25

MEMORANDUM AND ORDER granting Defendants' 18 Motion for Summary Judgment on the Plaintiff's claims of employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964. So Ordered by Judge Mary M. Lisi on 4/15/2014. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

FERMIN R. CIPRIAN,
v.

C.A. No. 12-651-ML

CITY OF PROVIDENCE;
PROVIDENCE SCHOOL DEPARTMENT;
JAMES J. LOMBARDI in his capacity as Treasurer;
ROBERT WISE in his official and individual capacity;1
MAILA TOURAY in her official and individual capacity;
PHILIP GOULD in his official and individual capacity;
GRACE GONZALEZ in her official and individual capacity;
MAGALY SANCHEZ in her official and individual capacity;
RONNIE YOUNG in his official and individual capacity;
BRIAN LALLI in his official and individual capacity;
MELISSA MALONE in her official and individual capacity;
KATHERINE MCKENZIE in her official and individual capacity;
and JOHN DOE in his official and individual capacity.
MEMORANDUM AND ORDER
The plaintiff in this employment discrimination case, Fermin
R.

Ciprian

(“Ciprian”),

brought

claims

against

the

City

of

Providence (together with the other remaining defendants, the
“City”)

for

employment

discrimination

and

retaliatory

action

pursuant to Title VII of the Civil Rights Act of 1964. Ciprian’s
claim under

the

Rhode

Island

Civil

Rights

Act

(“RICRA”) was

1

On March 31, 2014, the claims against all but the first three
defendants were dismissed, without prejudice, for lack of
jurisdiction, because the plaintiff failed to serve those
defendants within the 120-day limit provided by Fed. R. Civ. P.
4(m). (Dkt. No. 24).
1

dismissed on April 1, 2013 because Ciprian failed to give the
requisite notice to the City.

April 1, 2013 Memorandum and Order

at 16 (Dkt. No. 8). The matter now before the Court is the City’s
motion for summary judgment with respect to the remaining claims,
pursuant

to

Federal

Rule

56

of

the

Civil

Rules

of

Federal

Procedure.
I. Factual Background and Procedural History2
On October 15, 2007, Ciprian, a tenured physical education
teacher

and

sports

coach

at

Mount

Pleasant

High

School

in

Providence, was placed on paid administrative leave, following
allegations that Ciprian had exhibited disruptive behavior at the
school and that he had been threatening and hostile to other
employees. SUF ¶¶ 1-4. Ciprian then filed a complaint with the
state attorney general, who forwarded the complaint to the City.3
SUF ¶¶ 6-9.
The Providence School Department (“PSD”) investigated the

2

Because the facts of this case having been recited previously
in some detail, Memorandum and Order (Dkt. No. 8); Ciprian v. City
of Providence, 2013 WL 1339264 (D.R.I. April 1, 2013), the Court
will only summarize the pertinent facts as they are presented in
the City’s statement of undisputed facts (“SUF”)(Dkt. No. 19). The
Court notes that, with the exception of two factual assertions in
the SUF (¶¶58 and 64), Ciprian has raised no disputes in regard to
the City’s representation of the facts in this case. (Dkt. No. 222).
3

Ciprian alleged, inter alia, that the FBI had a “device that
can listen to your thoughts,” and that the government had placed
“toxic chemicals in or around [his] car.” (Dkt. No. 18-6).
2

allegations underlying Ciprian’s administrative leave and concluded
that Ciprian’s

behavior

was

“threatening,

confrontational

and

irrational,” and that Ciprian presented a potential danger to the
school community. SUF ¶¶ 10-11. On April 3, 2008, Ciprian was
advised that he could not return to work unless he underwent a
fitness-for-duty evaluation by an approved physician. SUF ¶ 2. Even
after Ciprian had been informed in writing that the PSD would
initiate termination of his employment if he refused to comply,
Ciprian elected not to get an evaluation. Instead, Ciprian informed
the PSD that he would file a grievance. SUF ¶¶ 12-17.
On May 6, 2008, Ciprian filed a charge of discrimination with
the Rhode Island Commission of Human Rights (“RICHR”), which
resulted in a finding of no probable cause on November 3, 2009.
Nevertheless, one day after filing that charge, Ciprian agreed to
take the evaluation. SUF ¶¶ 18-21. Ciprian was evaluated by a
board-certified psychiatrist who declared that “[d]ue to . . .
potential serious problems, which could indicate a psychiatric
disorder,” he could not recommend Ciprian’s return to duty. SUF ¶¶
25-28.
The PSD then required Ciprian to make arrangements by August
27, 2008, to undergo a full psychiatric evaluation or be subject to
disciplinary

action

up

to

and

including

termination

of

his

employment. SUF ¶¶ 29-31. On August 29, 2008, after Ciprian had
failed to meet that deadline, the PSD advised Ciprian in writing

3

that the PSD superintendent would recommend to the Providence
School Board (the “Board”) that Ciprian’s employment be terminated.
SUF ¶¶ 32-34. On September 8, 2008, the Board voted to terminate
Ciprian’s employment. SUF. ¶ 35. After Ciprian filed a pro se
complaint with the state attorney general and initiated suit in
Rhode Island state court for lack of requisite notice, the Board
rescinded its September 8, 2008 termination and advised Ciprian
that it would reconsider his employment status on October 27, 2008.
Ciprian does not dispute that, “[o]n October 27, 2008, the
Board voted . . . to suspend [him] without pay for the remainder of
the 2008-2009 school year and to terminate him effective for the
2009-2010 school year.” SUF ¶ 44. Ciprian was informed of the
Board’s decision by letter dated November 7, 20084. SUF ¶ 45. On
November 18, 2008, Ciprian appealed the Board’s decision, SUF ¶ 48.
On September 21, 2009, following an evidentiary hearing, the full
Board voted to ratify its October 27, 2008 decision to suspend
Ciprian and terminate his employment. SUF ¶ 49. Ciprian then filed
an administrative appeal to the Commissioner of the Rhode Island
Department of Education (“RIDE”) and initiated another suit in
Rhode Island state court.5 SUF ¶¶ 53-56.
4

In his second charge of discrimination to RICHR, Ciprian
stated that he was informed of his suspension and termination “[o]n
or about October 27, 2008.” Ex. Z.
5

RIDE affirmed the Board’s decision on August 28, 2013. The
state court denied Ciprian’s request for preliminary injunction on
4

On

March

23,

2010,

Ciprian

filed

a

second

charge

of

discrimination with RICHR. ¶ 57. In this charge, which was dualfiled

with

the

United

States

Equal

Employment

Opportunity

Commission (“EEOC”) on the same date, Ciprian alleged that he had
been

discriminated

against

“on

the

basis

of

[his]

ancestral

origin;” retaliated against; and denied a “timely evidentiary
appeal hearing.” Ex. Z at Page 2 of 2 (Dkt. No. 19-29). Ciprian
asserted that “[o]n or about October 27, 2008, I was informed that
I was suspended for the remainder of the school year and terminated
for the 2009-2010 school year.” Id. Following RICHR’s determination
of “no probable cause,” a right-to-sue notice from the EEOC was
sent to Ciprian on May 3, 2012, SUF ¶ 59; Ciprian commenced suit in
this Court on September 17, 2012. SUF ¶ 60 (Dkt. No. 1).
Initially, the City sought to have Ciprian’s Title VII claim
dismissed because the complaint had been filed more than ninety
days after Ciprian received his right-to-sue notice. (Dkt. No. 3).
Although courts generally assume that a notice provided by a
government agency is received within three days of the date on the
notice, Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.
1, 104 S.Ct. 1723, 1723 n.1, 80 L.Ed.2d 196 (1984)(per curiam),
Ciprian insisted that he had not received the notice until June 25,
2012. Complaint ¶ 25. Taking that allegation as true, without

November 27, 2009. The Supreme Court of Rhode Island denied
Ciprian’s appeal of that denial on September 21, 2011. SUF ¶¶ 5556, 61.
5

making a judgment as to whether it was credible, the Court denied
the City’s motion to dismiss the Title VII claim because Ciprian’s
suit had been commenced within ninety days of the day on which
Ciprian alleged he received the right-to-sue notice. (Dkt. No. 8).
Ciprian’s RICRA claim, however, was dismissed for failure to

give

proper notice to the City. Id.
On February 20, 2014, the City filed a motion for summary
judgment

on

Ciprian’s

claims

of

retaliation

(Count

I)

and

discrimination (Count II). Complaint at ¶ 35-39 (Dkt. No. 1). The
City asserts the following:
1. Ciprian’s claims were filed with the EEOC more than 300
days after Ciprian’s termination and, therefore, they are
time-barred;
2. Ciprian’s employment was terminated for legitimate, nondiscriminatory reasons; and
3.

Ciprian

failed

to

establish

a

prima

facie

case

for

retaliation.
In his objection—with the exception of a blank assertion that
the Board’s conduct at the September 21, 2009 meeting is sufficient
to support his claims of discrimination and retaliation—Ciprian
does not further address the City’s substantive or timeliness
arguments. In his response to the City’s SUF, Ciprian maintains
that “the adverse employment action consisted of not only the
Plaintiff’s termination, but the conduct of [sic] the hearing of

6

September 21, 2009...” Pltf’s Statement of Disputed Facts ¶ 64;
(Dkt. No. 22-2). The City elected not to file a reply to Ciprian’s
objection, and the matter is now ripe for a determination.
II. Standard of Review
The Court must grant summary judgment to the moving party “if
the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Lockridge v. The Univ. of Maine System,
597 F.3d 464, 469 (1st Cir. 2010). “A ‘material’ fact is one ‘that
might affect the outcome of the suit under the governing law.’” Id.
at 469 n. 3 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A dispute about a
material fact is ‘genuine’ only ‘if a reasonable jury could resolve
it in favor of either party.’” Lockridge v. The Univ. of Maine
System, 597 F.3d at 469 n. 3 (quoting Santoni v. Potter, 369 F.3d
594, 598 (1st Cir.2004) (quoting Basic Controlex Corp., Inc. v.
Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir.2000)).
III. Discussion
In

his

objection

to

the

City’s

motion,

Ciprian

focuses

entirely on the September 21, 2009 hearing in which the Board
ratified

its

October

27,

2008

decision

to

suspend

Ciprian

immediately and to terminate his employment effective the beginning
of the 2009-2010 school year. Specifically, Ciprian asserts that

7

“the Title VII retaliation claims must stand even solely based on
the conduct surrounding the hearing.” Pltf.’s Obj. at 7 (Dkt. No.
22-1). Although Ciprian makes no mention of the City’s timeliness
argument, the Court presumes that Ciprian’s focus on the September
21, 2009 hearing is intended to circumvent the 300-day limit to
filing a Title VII claim.
To bring a civil action for employment discrimination pursuant
to Title VII, an employee must first file a charge with either (1)
the EEOC within

180

days

of

the

alleged

unlawful

employment

practice; or (2) a parallel state agency (in this case the RICHR)
within 300 days of said practice. 42 U.S.C. § 2000e–5(e)(1). Aly v.
Mohegan Council, Boy Scouts of America, 711 F.3d 34, 41 (1st Cir.
2013). The timeliness requirement under 42 U.S.C. § 2000e–5(e)(1)
is “mandatory,” and failure to file within the time period means a
potential plaintiff “lose[s] the ability to recover for [the
alleged discrimination].” Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 109, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
Pursuant to 42 U.S.C. § 2000e–5(e)(1), (except for a claim of
hostile work environment, which has not been asserted here), “a
plaintiff may not recover ‘for discrete acts of discrimination or
retaliation

that

occur

outside

the

statutory

time

period.’”

Frederique-Alexandre v. Dep’t of Natural and Envtl. Res. Puerto
Rico, 478 F.3d 433, 437 n. 4 (1st Cir. 2007).
Discrete acts have been defined by the Supreme Court as “acts

8

such as termination, failure to promote, denial of transfer, or
refusal to hire.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at
114, 122 S.Ct. 2061. Such acts “are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new clock.” Johnson v.
Univ. of Puerto Rico, 714 F.3d 48, 53 (1st Cir. 2013)(emphasis
added)(quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at
113, 122 S.Ct. 2061; citing Rivera v. P.R. Aqueduct & Sewers Auth.,
331 F.3d 183, 188 (1st Cir.2003)).
Ciprian was suspended without pay on October 27, 2008, and his
employment was terminated the same day (although the termination
did not take effect until the beginning of the 2009-2010 school
year). On March 23, 2010, 512 days after the termination of his
employment, Ciprian filed a charge with RICHR, in which he asserted
that he was “terminated because of [his] ancestry.” Ex. Z.6 Ciprian
also made reference to the September 21, 2009 hearing, and he
asserted that he was “denied a timely evidentiary appeal hearing
based on his ancestral origin.” Id.
Based on the undisputed record, Ciprian’s second charge of

6

Ciprian also notes in this second charge that he had already
filed a charge of discrimination with RICHR; but it is apparent
from the record that Ciprian filed that charge on May 6, 2008 in
response to the PSD’s requirement that he undergo psychiatric
counseling and while he was on paid administrative leave. Ex. J.
That first charge resulted in a finding of no probable cause on
November 3, 2009. Ex. K.
9

discrimination was filed approximately seven months too late, and
it is, therefore, barred by 42 U.S.C. § 2000e–5(e)(1). Ciprian’s
appeal of the October 27, 2008 decision does not toll the 300-day
period in which he could have filed his Title VII claim. Thomas v.
Eastman Kodak Co., 183 F.3d 38, 52 (1st Cir. 1999)(noting that “the
statute of limitations for a Title VII claim is not tolled while an
employee

exhausts

any

internal

remedy

the

employer

has

made

available.”); Delaware State Coll. v. Ricks, 449 U.S. 250, 261, 101
S.Ct. 498, 66 L.Ed.2d 431 (1980) (“[T]he pendency of a grievance,
or

some

other

method

of

collateral

review

of

an

employment

decision, does not toll the running of the limitations periods.”);
Int’l Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S.
229, 236–37, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (reaffirming “the
independence of Title VII remedies from other pre-existing remedies
available to an aggrieved employee.”)).
Likewise, the September 21, 2009 hearing, on which Ciprian
exclusively focuses in his objection to the City’s motion, cannot
stand as a “discrete discriminatory act,” to serve as a basis for
a separate Title VII claim. Johnson v. Univ. of Puerto Rico, 714
F.3d at 53. As this Court has previously acknowledged, a Rhode
Island state court deemed the conduct of the Board in the September
21, 2009 hearing “unnecessarily inappropriate.” Ciprian v. City of
Providence, 2013 WL 1339264 at *1. Nevertheless, the state court
denied Ciprian’s request for a preliminary injunction because it

10

concluded that Ciprian was unlikely to success on his due process
claim. Id.
The Board’s later affirmation of its October 27, 2008 decision
to suspend Ciprian immediately and to terminate his employment
effective at the beginning of the 2009/2010 school year does not
qualify as a separately actionable adverse employment action.
Rather, it was a step in the collateral review of the Board’s
decision, pursuant to the process established under Rhode Island
state law. See R.I. Gen. Laws § 16-13-3(a)(requiring that tenured
teacher be “furnished with a complete statement of the cause(s) for
the dismissal by the governing body of the school and shall be
entitled to a hearing and appeal pursuant to the procedure set
forth in § 16-13-4.”); R.I. Gen. Laws § 16-13-4(a) (setting forth
hearing and appeals procedures following the dismissal of a tenured
teacher). Such collateral review, however, is not, by itself, an
“adverse employment action.” Delaware State College v. Ricks, 449
U.S. at 261, 101 S.Ct. at 506 (confirming that “the pendency of a
grievance,

or

some

other

method

of

collateral

review

of

an

employment decision, does not toll the running of the limitations
periods.”)(citation omitted).
In sum, because Ciprian’s charge of discrimination was filed
more

than

300

days

after

the

Board’s

decision

to

terminate

Ciprian’s employment, and the Board’s subsequent affirmation of its
earlier decision does not qualify as a discrete discriminatory act,

11

Ciprian’s Title VII claims are time-barred and cannot withstand the
City’s motion for summary judgment.
Conclusion
For the reasons stated herein, the City’s motion for summary
judgment on the Plaintiff’s claims of employment discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 is
GRANTED. The clerk is directed to enter judgment in favor of the
remaining defendants.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
April 15, 2014

12