Ciprian v. City of Providence et al

Filing 8

MEMORANDUM AND ORDER granting in part and denying in part 3 Motion to Dismiss: For the reasons stated in the attached Order, the City of Providence's motion to dismiss the Complaint is DENIED with respect to the Title VII claims in Counts I and II, and GRANTED with respect to the RICRA claim in Count III. So Ordered by Chief Judge Mary M. Lisi on 4/1/2013. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

FERMIN 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;
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;
JOHN DOE in his official and individual capacity.
MEMORANDUM AND ORDER
The plaintiff in this employment discrimination case, Fermin
R. Ciprian (“Ciprian”), has brought claims of discrimination based
on his “membership in a protected class” and retaliatory action on
the part of the defendants, the City of Providence (together with
the other named defendants, the “City”), the Providence School
Department, and various members of the Providence School Board (the
“Board”), pursuant to Title VII of the Civil Rights Act of 1964 and
the Rhode Island Civil Rights Act (“RICRA”). The matter before the
Court is the City’s motion to dismiss Ciprian’s complaint (the
“Complaint”) under Rule 12(b)(6) of the Federal Rules of Civil

1

Procedure.
I. Factual Background and Procedural History1
According to the Complaint, Ciprian, a teacher at a public
high school in Providence until October 2007, had made “various
complaints

regarding

a

hostile

and

discriminatory

work

environment.” Complaint ¶ 7. Ciprian alleges that the Board sought
to terminate his employment on the grounds that he was no longer
capable of performing his duties. Ciprian v. The Providence School
Board, No. 2009-6059, 2009 WL 4479251 (R.I. Super., Nov. 27, 2009).
On

October

15,

administrative

2007,
leave

the
while

Board

placed

conducting

Ciprian

some

on

inquiries

paid
of

“difficulties [Ciprian] had encountered on the job.” Complaint ¶ 9.
On September 8, 2008, the Board voted to terminate Ciprian’s
employment effective as of the beginning of the 2008-2009 school
year. Id. ¶ 10. In response, Ciprian and the Providence Teachers
Union sought an injunction in Rhode Island state court based, in
part, on the statutory requirement of Gen. Laws § 16-13-3 that
notice of termination be given no later than March 1 of the
immediately preceding school year. Id. at ¶ 12; C.A. No. PC-086046. After commencement of the suit, the Board consented to
continue Ciprian’s pay and health benefits and it rescinded the

1

The factual summary is primarily based on the Complaint,
supplemented by non-controverted statements in the parties’
submissions and by representations of counsel at a hearing on the
City’s motion.
2

September 8, 2008 termination. Id. ¶ 13. On October 27, 2008, the
Board suspended Ciprian without pay for the 2008-2009 school year
and terminated his employment effective the beginning of the 20092010 school year. Id. ¶ 15. Ciprian appealed the Board’s decision
on November 18, 2008 and requested a full hearing before the Board.
Id. ¶ 17.
Following a hearing on September 21, 2009, the Board affirmed
the decision to terminate Ciprian’s employment. Id. ¶ 18-23.
Ciprian

appealed

the

Board’s

decision

to

the

Rhode

Island

Department of Education (“RIDE”).2 On October 13, 2009, Ciprian
sought another injunction in the Rhode Island state court to
preclude the termination of his employment. Id. ¶ 24; C.A. No. PC09-6059. Ciprian’s motion for preliminary injunction was denied on
November 27, 2009. Ciprian v. The Providence School Board, No.
2009-6059, 2009 WL 4479251. Although the hearing judge found that
the conduct of the Board was “unnecessarily inappropriate,” he
concluded that Ciprian was unlikely to succeed on the merits of his
due process claim. Id. at *7. However, the court denied the City’s
motion to dismiss C.A. No. PC-08-6046 on the ground of mootness

2

The appeal before RIDE is still ongoing. Although a final
hearing was scheduled for January 30, 2013, Ciprian’s counsel
explained at the hearing on the City’s motion to dismiss that a
further hearing is to be scheduled and that the matter remains
pending.
3

because “the parties continue to have a stake” in that case. Id.3
On March 23, 2010, Ciprian filed a charge of discrimination
with the Rhode Island Commission for Human Rights (“RICHR”).
(Attachment to Complaint, Docket # 1, Pages 8-9 of 10). Ciprian
checked the boxes for “Retaliation” and “National Origin,” and he
specified

that

the

alleged

discrimination

took

place

between

October 27, 2008 (Ciprian’s suspension without pay) and September
21, 2009 (the hearing before the Board, which then confirmed the
termination of Ciprian’s employment). Id., Complaint ¶¶ 31, 32.
Ciprian alleged that he was terminated based on his ancestry, which
he identified as Hispanic.

(Attachment to Complaint at Page 10 of

10).
By letter dated February 21, 2012, RICHR informed Ciprian that
a determination of “no probable cause” had been made and that he
could pursue the matter by filing a claim in federal district court
within 90 days of the receipt of a notice to sue by the United
States

Equal

Employment

Opportunity

Commission

(“EEOC”).

(Attachment to City’s Mot. Dismiss, Docket # 3-1 at Page 1 of 2).
On May 3, 2012, the EEOC issued a dismissal and notice of right to
sue, stating that it had “adopted the findings of the state or

3

Ciprian appealed the denial of the preliminary injunction to
the Rhode Island Supreme Court, which denied and dismissed his
appeal on September 21, 2011, and denied his subsequent petition
for writ of certiorari on October 20, 2011. Ciprian v. Providence
School Board, 29 A.3d 1239 (R.I. 2011); R.I. Supreme Court No.
2011-237-MP (Oct. 20, 2011).
4

local fair employment practices agency that investigated this
charge.” Attachment to Complaint at Page 8 of 10.
In his Complaint, Ciprian expressly asserts that he did not
receive the EEOC notice until “[o]n or about June 25, 2012,” more
than seven weeks after it had been issued. Complaint ¶ 33. On
September 17, 2012, Ciprian filed his Complaint in this Court,
asserting claims of retaliation (Count I) and discrimination based
on his membership in a protected class (Count II) under Title VII,
as well as a claim under RICRA (Count III). Ciprian seeks a
declaration from this Court that the City’s “actions complained of
are unlawful,” and he requests “compensatory ... punitive ...[and]
liquidated damages.” Complaint at 7.
The City filed its answer and a motion to dismiss on February
1, 2013. The City seeks dismissal of Ciprian’s Title VII claims
because he failed to bring suit within ninety days of receiving the
EEOC’s notice of right to sue. Further, the City seeks dismissal of
Ciprian’s pendant RICRA claim on the grounds that (1) the claim was
barred by RICRA’s one-year statute of limitations in operation
during the year following the events leading to Ciprian’s claims,
but before the Complaint was filed; (2) Ciprian failed to provide
the requisite 40-day notice to the City pursuant to R.I. Gen. Laws
§ 45-15-5; and (3) Ciprian’s claim is barred by res judicata.
Ciprian filed an objection on March 1, 2013, in which he
maintained that, notwithstanding the date specified on the EEOC

5

notice, he did not receive the notice until June 25, 2012. Ciprian
argues that his RICRA claim is timely because the three-year
statute of limitations (enacted on January 5, 2010) should be
applied retroactively. With respect to the requirement of providing
notice to the City pursuant to Section 45-15-5, Ciprian suggests
that his Complaint “seeks general equitable relief” and, therefore,
is not subject to the notice provision. Finally, Ciprian points out
that the res judicata doctrine does not apply to the RICRA claim
because no final judgment on the merits has been reached in any
relevant proceedings.

The City filed a reply memorandum on March

7, 2013.
On March 18, 2013, the Court held a hearing on the City’s
motion. Upon inquiry by the Court, the City’s counsel acknowledged
that Ciprian’s claims in Rhode Island state court had not been
dismissed.

Ciprian’s

counsel

confirmed

that

the

state

action

remained pending and that the appeal before RIDE was still ongoing.
Ciprian’s counsel also conceded that no formal notice was given to
the City under Section 45-15-5. At the conclusion of the hearing,
the Court took the City’s motion under advisement.
II. Standard of Review
In determining a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the Court must consider
“whether, construing the well-pleaded facts of the complaint in the
light most favorable to the plaintiffs, the complaint states a

6

claim

for

which

relief

can

be

granted.”

Ocasio-Hernandez

v.

Fortuno-Burset, 640 F.3d 1, 8 (1st Cir. 2011).
A complaint “‘must contain sufficient factual matter ... to
“state a claim to relief that is plausible on its face.”’” Katz v.
Pershing, LLC, 672 F.3d 64, 72-73 (1st Cir. 2012)(quoting Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must “include
‘factual content that allows the court to draw the reasonable
inference

that

the

defendant

is

liable

for

the

misconduct

alleged.’” Katz v. Pershing, LLC, 672 F.3d at 73 (quoting Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Iqbal, 129
S.Ct.

at

complaint

1949)).
must

“Non-conclusory

...

be

treated

factual
as

true,

allegations
even

if

in

the

seemingly

incredible.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d at 12
(citing Iqbal, 129 S.Ct. at 1951) (“To be clear, we do not reject
these bald allegations on the ground that they are unrealistic or
nonsensical....

It

is

the

conclusory

nature

of

respondent's

allegations, rather than their extravagantly fanciful nature, that
disentitles them to the presumption of truth.”)); Rodriguez-Ramos
v.

Hernandez-Gregorat,

685

F.3d

34,

40

(1st

Cir.

2012)(“[N]on-conclusory allegations are entitled to a presumption
of truth, and we draw all reasonable inferences therefrom in the
pleader's favor.”)

7

The

Court

takes

“the

complaint’s

well-pled

(i.e.,

non-

conclusory, non-speculative) facts as true, drawing all reasonable
inferences in the pleader’s favor and see if they plausibly narrate
a claim for relief.” Schatz v. Republican State Leadership Comm.,
669 F.3d 50, 55 (1st Cir. 2012)(internal citations omitted).
However, “statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause of-action-elements”
must be isolated and ignored. Id.; Rodriguez-Ramos v. HernandezGregorat, 685 F.3d at 40 (noting that the Court must “disregard
statements in the complaint that merely offer ‘legal conclusion[s]
couched as ... fact[]’ or ‘threadbare recitals of the elements of
a cause of action’”)(internal quotations omitted).
In addition to facts asserted in the pleadings, the Court may
consider “(a) ‘implications from documents’ attached to or fairly
‘incorporated into the complaint,’ (b) ‘facts’ susceptible to
‘judicial notice,’ and (c) ‘concessions’ in plaintiff's ‘response
to the motion to dismiss.’” Schatz v. Republican State Leadership
Comm., 669 F.3d at 55-56 (citing Arturet–Vélez v. R.J. Reynolds
Tobacco Co., 429 F.3d 10, 13 n. 2 (1st Cir. 2005); Haley v. City of
Boston, 657 F.3d at 44, 46.
III. Discussion
(A)

Title VII Claims

In order to be timely, a claim brought under Title VII must be
filed within 90 days after the claimant receives a right-to-sue

8

notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1)(“within ninety days
after the giving of such notice a civil action may be brought
against the respondent named in the charge ... by the person
claiming to be aggrieved.”) Although the section refers to the
“giving” of such notice, the 90 day period does not begin to run
until the claimant has received the right-to-sue notice. Dismissal
and Notice of Rights (Docket # 3-4); Loubriel v. Fondo del Seguro
del Estado, 694 F.3d 139, 143 (1st Cir. 2012)(citing Irwin v.
Dep't. of Veterans Affairs, 498 U.S. 89, 92–93, 111 S.Ct. 453, 112
L.Ed.2d 435 (1990)).
The First Circuit has determined that the time limitation set
by

section

2000e-5(f)(1)

is

nonjurisdictional

and,

therefore,

subject to “waiver, estoppel, or equitable ground for tolling the
statute.” Rice v. New England College, 676 F.2d 9, 10 (1st Cir.
1982)(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102
S.Ct. 1127, 71 L.Ed.2d 234 (1982)). However, absent exceptional
circumstances

that

warrant

equitable

tolling,

a

suit

brought

outside the 90-day period is time-barred. Loubriel v. Fondo del
Seguro del Estado, 694 F.3d at 142; Chico-Velez v. Roche Products,
Inc., 139 F.3d 56, 58-59 (1st Cir. 1998)(noting that “courts should
take

a

‘narrow

view’

of

equitable

exceptions

to

Title

VII

limitation periods”).
Courts will presume that a notice provided by a government
agency was mailed on the date shown on the notice and that a

9

plaintiff received a right-to-sue notice within three days after
the EEOC mailed the notice. Baldwin County Welcome Center v. Brown,
466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 1723 n.1, 80 L.Ed.2d 196
(1984)(per curiam); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522,
526 (2d Cir. 1996). However, that presumption is rebuttable.
Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37
(2d Cir. 2011)(initial presumption is not dispositive if contrary
evidence is presented); Hill v. Textron Automotive Interiors, Inc.,
160 F.Supp.2d 179, 183 (D.N.H. 2001)(citing Holmes v. NBC/GE, 914
F.Supp. 1040, 1043 (S.D.N.Y.1996) (collecting cases)).
In this case, the EEOC right-to-sue notice (appended to the
Complaint) clearly shows May 3, 2012 as the “Date Mailed.” (Docket
# 1 at Page 8 of 10). In the Complaint, however, Ciprian states and he maintained this assertion in his objection to the City’s
motion - that he did not receive the notice until “[o]n or about
June 25, 2012.” Complaint ¶ 33. Neither side has submitted any
further evidence to support or disprove this assertion. However,
this Court is of the opinion that, at this stage of the litigation,
no proof is necessary. In the absence of any assertion by the
plaintiff, the Court would presume that Ciprian received the rightto-sue notice in the beginning of May, 2012. However, in light of
Ciprian’s continued representation that he did not receive the
notice until June 25, 2012, the Court takes this factual allegation
as true, as required under the 12(b)(6) standard, without making a

10

judgment as to whether such an allegation is credible. See OcasioHernandez v. Fortuno-Burset, 640 F.3d at 12 (rejecting allegations
because

of

their

conclusory

nature,

not

because

they

were

“unrealistic or nonsensical”).
The cases relied upon by the City in support of dismissal for
untimeliness do not require a different outcome. In Loubriel, the
plaintiff’s ADA claim was dismissed at the summary judgment stage
(which is a different standard). Loubriel v. Fondo del Seguro del
Estado, 694 F.3d at 145. The plaintiff in Loubriel alleged in her
complaint that she did not receive her May 8, 2009 right-to-sue
notice until September 10, 2009. She further maintained in an
unsworn statement of contested material facts accompanying her
objection to the defendant’s summary judgment motion that she
received the notice “on or about September 2009.”

Id. at 142.

The First Circuit, noting that it “need not decide [the]
vexing issue” whether those oblique references to when the notice
was received were sufficient to withstand a summary judgment
motion, determined that the claim was, nonetheless, time-barred
because the notice had been mailed simultaneously to the plaintiff
and to her attorney. Id. at 143 (“Consequently, the plaintiff had
constructive notice of the 90-day filing period through [her
attorney’s] receipt of the right-to-sue notice.”).
The Second Circuit in Sherlock v. Montefiore Medical Center
concluded that neither the plaintiff’s “proffer of inadmissible

11

evidence nor her own lack of recollection sufficed to rebut the
presumption” as to when she received her right-to-sue notice.
Sherlock v. Montefiore Med. Ctr., 84 F.3d at 526 (holding that
plaintiff’s claims were timely because the defendant acknowledged
receiving the EEOC letter addressed to both parties unexpectedly
late).
However, in Sherlock, the complaint itself apparently did not
specify the date on which the plaintiff received the right-to-sue
letter, distinguishing that case from the circumstances of this
case.

Ruiz v. New York City Fire Dept., No. 00 CIV. 4371 AGS.,

2001 WL 767009 (S.D.N.Y. Jul. 9, 2001); see also Carpenter v. City
of New York, No. 09-CV-4524(ARR)(LB), 2010 WL 2680427 (E.D.N.Y.
Jun. 30, 2010) (noting that, “[i]n cases where a complaint does
allege this information, courts in this circuit have held that the
principle that all factual allegations in the complaint must be
taken as true for the purposes of Rule 12(b)(6) motions applies.”).
In Davis v. Sears, the First Circuit did affirm the dismissal
of a race-based discrimination claim as time-barred in the context
of a 12(b)(6) motion. Davis v. Sears, Roebuck and Co., 708 F.2d 862
(1st Cir. 1983). However, in Davis, the trial court had the benefit
of an affidavit submitted by the defendant that indicated (based on
statements of an EEOC employee and the local post office) when the
plaintiff had received the right-to-sue letter (which rendered her
claim untimely). Although the affidavit was inadmissible in the

12

context of a 12(b)(6) motion, the plaintiff did not move to strike
the affidavit and thus had waived her objection thereto.
In sum, taking Ciprian’s allegations as true, as this Court
must for the purpose of determining a motion to dismiss under Rule
12(b)(6), the Title VII claims are not time-barred because the
Complaint was filed within 90 days of the date on which Ciprian
alleges to have received his right-to-sue notice.
(B) RICRA Claim
Before bringing a claim against the City, Ciprian was required
to comply with the provisions of Section 45-15-5 of the Rhode
Island General Laws, which states, in pertinent part:
“Every person who has any money due him or her from any
town or city, or any claim or demand against any town or
city, for any matter, cause, or thing whatsoever, shall
* * * present to the * * * city council of the city, a
particular account of that person's claim, debt, damages,
or demand, and how incurred or contracted; * * * in case
just and due satisfaction is not made to him or her * *
* within forty (40) days[,] * * * R.I. Gen. Laws § 45-155 (1956).
The purpose of the 40-day waiting period is to afford a city
or a town “a reasonable opportunity to settle a claim without
putting the municipality to the expense of defending an action at
law.”

Bernard v. Alexander, 605 A.2d 484, 485 (R.I.1992). The

Rhode Island Supreme Court has “generally found monetary claims
against municipalities to be strictly governed by the presentment
and notice provisions set forth in § 45-15-5.” United Lending Corp.
v. City of Providence, 827 A.2d 626, 632 (R.I. 2003); Shackleton v.
13

Coffee ‘An Service, Inc., 657 A.2d 544, 545 (R.I.1995)(Section 4515-5 “sets out the steps that every person who has a monetary claim
against a municipality must follow.”); Bernard v. Alexander, 605
A.2d at 485) (“There is no question that § 45-15-5 requires every
person who has a monetary claim against a municipality to present
to the town or city council a particular account of his or her
claim”); Lahaye v. City of Providence, 640 A.2d 978, 980 (R.I.
1994)(“The notice requirement may not be waived voluntarily or
involuntarily.”). Although the Rhode Island Supreme Court has
determined that the forty-day requirement is not jurisdictional, it
is a condition precedent to filing suit. Mesolella v. City of
Providence, 508 A.2d 661, 666 (R.I.1986).
A failure to comply with § 45-15-5 warrants “the abatement of
the

action

or

dismissal

dismissal on the merits.”

as

prematurely

brought

rather

than

Bernard v. Alexander, 605 A.2d at 485;

Blessing v. Town of South Kingstown, 626 A.2d 204, 205 (1993).
Pursuant to the provisions of Section 9-1-224, a plaintiff may

4

Section 9–1–22. states:
“If an action is timely commenced and is terminated in any
other manner than by a voluntary discontinuance, a dismissal of the
complaint for neglect to prosecute the action, or a final judgment
upon the merits, the plaintiff, or if he dies and the claim
survives, his executor or administrator, may commence a new action
upon the same claim within one (1) year after the termination.”
R.I. Gen. Laws § 9-1-22.

14

bring another action “after a prior action has been dismissed for
reasons other than a determination upon the merits.” Id. at 204205.
The notice requirement does not apply in cases whether the
requested remedy is primarily equitable in nature. Town of Johnston
v. Ryan, 485 A.2d 1248, 1250 (R.I. 1984)(citing Lonsdale Co. v.
City of Woonsocket, 25 R.I. 428, 56 A. 448 (1903)).
As candidly acknowledged by Ciprian’s counsel at the March 18,
2013 hearing, Ciprian did not give notice to the City pursuant to
Section

45-15-5.

Ciprian

suggests,

however,

that

the

notice

provision does not apply because his Complaint “first and foremost
requests that the actions be declared unlawful and seeks general
equitable relief from this Court.” Ciprian Mem. at 6.

However, in

the Complaint, while Ciprian asks for a declaration that the City’s
actions are “unlawful,” he primarily seeks to be “[made] whole” and
to be awarded compensatory, punitive, and liquidated damages.
Complaint at 7. In other words, Ciprian’s requested remedies fall
squarely within the category of monetary claims against the City
which requires compliance with the 40-day notice provision of
Section

45-15-5.

Ciprian’s

suggestion

that

the

City

was

“on

sufficient notice of the claim as a result of the EEOC and [RICHR]
proceedings,” Ciprian Mem. at 7, may not serve to circumvent the
narrowly construed requirement of a proper notice under Section 4515-5. See Serpa v. Amaral, 635 A.2d 1196, 1198 (R.I. 1994).

15

Because this Court concludes that, in the absence of proper
notice

to

the

City,

Ciprian’s

RICRA

claim

is

barred

by

noncompliance with Section 45-15-5, there is no need to engage in
an

analysis

of

the

City’s

statute

of

limitations

argument.

Likewise, because both parties acknowledge that proceedings in the
Rhode Island state court and before RIDE are ongoing, the City’s
res judicata defense is unavailable.
Conclusion
For the reasons stated herein, the City’s motion to dismiss
the Complaint is DENIED with respect to the Title VII claims in
Counts I and II, and GRANTED with respect to the RICRA claim in
Count III.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
April 1, 2013

16