Opinion
No. 03 Civ. 5272 (LAK)(KNF).
July 19, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Gilbert Torres ("Torres") filed this action pro se against defendants New York City Police Department ("Police Department") and New York City Police Commissioner Raymond Kelly (collectively, "defendants"), alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The defendants have filed a motion to dismiss the action, pursuant to Fed.R.Civ.P. 12(b), on the grounds that the complaint: (1) is outside the subject matter jurisdiction of this court, since the complaint is an improper attempt to obtain appellate review of a state-court judgment; (2) is barred by the doctrine of issue preclusion, since questions presented by Torres' complaint were adjudicated previously in a state-court proceeding; (3) is time-barred, as Torres did not file a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") timely; and (4) does not state a claim upon which relief may be granted, since it does not allege facts that would, if true, establish a prima facie case of race discrimination. Torres opposes the motion, on the ground that, among other things, the action is not time-barred because he received a letter from the EEOC advising him of his right to commence an action in this court.
The defendants' application is addressed below. Additionally, as one of the legal contentions set forth by the defendants' application is foreclosed by existing law, the issue of defendants' compliance with Fed.R.Civ.P. 11(b)(2) is also addressed below.
II. BACKGROUND
Torres was employed by the City of New York as a police officer beginning in 1992. He alleges that in 1995, a civilian filed a complaint with the New York City Civilian Complaint Review Board ("CCRB"), accusing Torres of being discourteous to her during a dispute that arose at a concert. According to Torres, the CCRB filed certain administrative charges ("CCRB charges") against Torres as a result of the civilian complaint, and a hearing was held before an administrative law judge ("ALJ") at the New York City Office of Administrative Trials and Hearings ("OATH hearing"). At the OATH hearing, Torres testified about the incident that was the subject of the civilian complaint and the administrative charges. The ALJ found Torres guilty of the charges and recommended that then-Police Commissioner Howard Safir ("Police Commissioner") suspend Torres for twenty-five days. The ALJ also found that Torres had testified falsely under oath. The Police Commissioner adopted the findings of the ALJ and suspended Torres for twenty days. Thereafter, the Police Department brought an additional administrative charge against Torres for testifying falsely at the administrative hearing ("false statement charge"). Following additional hearings ("department hearings"), a deputy commissioner of the Police Department found Torres guilty of the false statement charge and recommended that Torres be dismissed from the Police Department. On August 10, 2000, the Police Commissioner adopted the ALJ's findings and recommendation, and Torres was dismissed.
Torres filed a petition in New York State Supreme Court, New York County, pursuant to Article 78 of the New York Civil Practice Law and Rules ("Article 78 petition"), challenging his dismissal from the Police Department. The petition was transferred to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"). See In re Application of Torres v. Kerik, 299 A.D.2d 214, 750 N.Y.S.2d 21, 22 (App.Div. 1st Dep't 2002). In the Article 78 petition, Torres sought, among other things, the annulment of his dismissal and back pay, on the grounds that: (1) the adjudication of the false statement charge violated his state statutory right to a hearing on the CCRB charges; and (2) the factual finding that was the basis for Torres' dismissal, namely that he testified falsely at the first administrative hearing, was not supported by substantial evidence. The Appellate Division found that Torres "received a fair hearing and a full opportunity to litigate the issue of the truthfulness of his prior testimony," and that he was not deprived of due process of law or of his state statutory rights. Id. at 214-15, 22. Therefore, the Appellate Division dismissed the petition. Id. at 214, 22.
On April 8, 2003, Torres filed a charge of discrimination with the EEOC, alleging that the Police Commissioner had dismissed him because of his race and in retaliation for some unspecified protected activity. On April 23, 2003, the EEOC issued a notice ("EEOC notice") to Torres, indicating that the EEOC could not investigate Torres' charge of discrimination "because it was not filed within the time limit required by law." The EEOC notice also advised Torres of his right to file an action in federal district court within 90 days of his receipt of the notice. Torres commenced the instant action on July 17, 2003, and, thereafter, filed an amended complaint. In the amended complaint, Torres acknowledges that disciplinary proceedings such as those initiated against him can result in dismissal, if the misconduct at issue is sufficiently gross. However, he maintains that, for the type of misconduct with which he was charged, the severity of the disciplinary action taken against him was virtually unprecedented and was motivated by his race. See Amended Complaint at 3; see also id. at 10 ("If this case involved an officer other th[a]n a Latino or Afro American, the case never would have made it to [the] OATH [hearing,] let alone [the] department [hearings].").
III. DISCUSSION
Motion to Dismiss
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, or Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In considering a motion pursuant to these rules, "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Id. The court may also consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Furthermore, in a case such as this, in which the plaintiff is a pro se litigant, a court must be mindful that the plaintiff's pleadings "are [to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595).
A. Subject Matter Jurisdiction
Under the Rooker-Feldman doctrine, a federal district court lacks subject matter jurisdiction over actions brought by parties "complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., ___ U.S. ___, 125 S. Ct. 1517, 1521-22 (2005) (clarifying scope of doctrine established in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303). The doctrine pertains to attempts to invalidate state-court judgments; as such, it is distinct from doctrines of preclusion, which concern the relitigation of previously-adjudicated issues and claims, and which are not jurisdictional in nature. Id. at 1522, 1527. "If a federal plaintiff 'present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . ., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.'" Id. at 1527 (quotingGASH Assocs. v. Village of Rosemont, 995 F.2d 726, 728 [7th Cir. 1993]).
In Torres' Article 78 proceeding, the Appellate Division adjudicated contentions that the Police Commissioner violated Torres' state statutory rights and that the Police Commissioner lacked an evidentiary basis upon which to conclude that Torres made a false statement. In this action, the plaintiff contends that the severity of the discipline imposed by the Police Commissioner for that misconduct was motivated by Torres' race. The adjudication of that contention does not require the review or invalidation by this court of the judgment of the Appellate Division. Moreover, the injury of which Torres complains in this action was caused by the Police Commissioner's decision to dismiss him; it was not caused by the judgment of the Appellate Division. Accordingly, the Rooker-Feldman doctrine does not deprive this court of jurisdiction over the instant action.
B. Preclusion
Under the doctrine of issue preclusion, or collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414-415 (1980). Under 28 U.S.C. § 1738, federal courts are required to "give the same preclusive effect to state-court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S. Ct. 1883, 1889 (1982). "Under New York Law, the doctrine of issue preclusion only applies if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).
Citing Latino Officers Association v. City of New York, 253 F. Supp. 2d 771, 784 (S.D.N.Y. 2003), the defendants concede that an unsuccessful Article 78 challenge to a finding of misconduct by a police officer does not preclude a subsequent claim, under Title VII, that racial animus motivated the severity of the penalty imposed for that misconduct. That is precisely the circumstance in the instant action, except that Torres' Article 78 petition also challenged the department hearings on a state-law ground unrelated to race discrimination. As was the case in Latino Officers Association, the Appellate Division's findings in adjudicating the Article 78 petition do not "lead inexorably to the conclusion that race was not a motivating factor in the [Police Department's] decision to terminate" Torres. Accordingly, the defendants have not identified any issue presented by Torres' Title VII claim that was actually and necessarily decided by the Appellate Division. Therefore, the doctrine of issue preclusion does not bar the instant complaint. See id. at 784-86.
The defendants also contend that if Torres' dismissal was required by a guilty finding on the false statement charge, then race discrimination could not have been a factor in the Police Commissioner's determination of a penalty. In this vein, the defendants contend that dismissal is "near[ly] automatic" upon a finding of perjury, and that it is, in fact, the policy of the Police Department to terminate "in almost every case" police officers who make false statements under oath. Even if these factual contentions are true, they would establish only that Torres' dismissal was likely, not that it was required. In any event, the above-noted factual contentions are matters outside the amended complaint and may not form the basis for a Rule 12(b)(6) application. See Fed.R.Civ.P. 12(b).
C. Time-bar
A charge of discrimination made under Title VII must be filed with the EEOC within 180 days of the alleged violation or, where a plaintiff first files the charge with a state or local equal employment or human rights agency, within 300 days of the alleged violation. See 42 U.S.C. §§ 2000e- 5(e); Gomes v. AVCO Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992). If the plaintiff does not file a charge of discrimination with the appropriate agency within these time limits, relief under Title VII is barred. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S. Ct. 2061, 2070 (2002). Torres filed a charge of discrimination with the EEOC on April 8, 2003, which is more than 180 days after his dismissal from the Police Department on August 10, 2000. Accordingly, Torres' charge of discrimination was not filed timely.
Although nothing in the record before the Court suggests that Torres filed a charge of discrimination with with a state or local equal employment or human rights agency, the Court notes that April 8, 2003, is also more than 300 days after Torres' dismissal from the Police Department.
The "filing [of] a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Francis v. City of New York, 235 F.3d 763, 767 (2d Cir. 2000) (quotingZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132).
In the instant case, there is no basis upon which to conclude that the defendants waived their right to assert a defense based on Torres' failure to file his charge of discrimination with the EEOC timely. Accordingly, in order for the plaintiff to avoid a finding that his charge of discrimination is time-barred, he must demonstrate that: (a) there has been conduct by the defendants that estops them from asserting, as a defense, that plaintiff's EEOC charge was not filed timely; or (b) there were circumstances that warrant equitable tolling of the filing period.
The doctrine of equitable estoppel may be invoked "where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay in bringing his lawsuit."Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 50 (2d Cir. 1985). The doctrine of equitable tolling applies to those situations where a plaintiff is unaware of the existence of a viable claim because of a defendant's misleading conduct, or where the plaintiff is "prevented in some extraordinary way" from exercising his rights. See id. at 48-49. Torres has made no allegation — and the record before the Court provides no basis upon which to conclude — that the defendants engaged in misleading conduct that deterred Torres from filing timely a charge of discrimination with the EEOC or with a state or local equal employment or human rights agency. Torres also has not identified any other extraordinary circumstance that might have prevented him from filing such a charge timely. Therefore, the doctrines of equitable estoppel and equitable tolling are not applicable to the case at bar.
Torres' receipt of the EEOC notice does not demonstrate that this action is not time-barred. The EEOC notice simply advised Torres that he had the right to commence the instant action in federal district court within 90 days; the notice did not relieve the plaintiff of the consequences of the untimely filing of his EEOC charge. One of those consequences is that the defendants are entitled to assert, as a defense, that the action is time-barred. As discussed above, the defendants in this action have done so, and the plaintiff has not identified any reason for the untimely filing that would overcome that defense.
In light of the foregoing, Torres' claim of discrimination is time-barred and should be dismissed.
D. Failure to Allege Prima Facie Case
The Supreme Court's holding in Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992 (2002), forecloses the defendants' contention that Torres' complaint must be dismissed because it does not allege a prima facie case of intentional race discrimination. The Second Circuit cases cited by the defendants to support that contention were superceded by Swierkiewicz.
In his amended complaint, Torres alleges that he was subjected to unusually severe discipline because of his race, and he provides detailed information about the circumstances of his dismissal and his reasons for believing that his race motivated it. That is all that is required to give the defendants notice of the nature of and the grounds for Torres' claim for relief. See id. at 514, 999; Fed.R.Civ.P. 8(a).
Failure to meet a heightened pleading standard is not a basis for the dismissal of Torres' complaint.
Rule 11 Sanctions
In its most pertinent parts, Rule 11 of the Federal Rules of Civil Procedures provides the following:
(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
* * *
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
* * *
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1) How Initiated.
* * *
(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
Fed.R.Civ.P. 11(b), (c).
The main objective of Rule 11 sanctions is to deter baseless filings in the district court. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S. Ct. 2447, 2454 (1990). "Under Fed.R.Civ.P. 11, sanctions may be imposed on a person who signs a pleading, motion, or other paper for an improper purpose such as to delay or needlessly increase the cost of litigation, or does so without a belief, formed after reasonable inquiry, that the position espoused is factually supportable and is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law." Caisse Nationale de Credit Agricole-CNCA, New York Branch v. Valcorp, Inc., 28 F.3d 259, 264 (2d Cir. 1994).
As discussed above, relying upon cases decided prior toSwierkiewicz, counsel to the defendants has presented to the Court the contention that Torres' complaint is legally insufficient because it lacks factual allegations of sufficient detail to establish a prima facie case of intentional race discrimination, under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). However, approximately two years before the defendants presented that contention to the Court, the Supreme Court made clear that "an employment discrimination complaint need not include [facts of sufficient particularity to establish a prima facie case] and instead must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz, 534 U.S. at 508, 122 S. Ct. at 995 (quoting Fed.R.Civ.P. 8[a]). A reasonable inquiry into decisional law on the subject of pleading standards for employment discrimination actions would have revealed that the above-noted legal contention is not warranted by existing law. Moreover, the defendants have not articulated any non-frivolous argument for the modification or reversal of the rule announced in Swierkiewicz.
In the case at bar, it appears to the Court that counsel to the defendants did not make a reasonable inquiry into applicable law, as was required by Fed.R.Civ.P. 11(b)(2). Counsel to the defendants should be directed, pursuant to Fed.R.Civ.P. 11(c)(1)(B), to show cause why counsel should not be sanctioned for presenting the above-noted legal contention to the Court.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that: (1) the defendants' motion to dismiss the complaint be granted; and (2) counsel to the defendants be directed to show cause why counsel should not be sanctioned for presenting to the Court a legal contention that is without any basis in existing law.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, 500 Pearl Street, Room 1310, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).