Opinion
03 Civ. 5411 (RCC)(FM).
June 14, 2004
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD C. CASEY
This Report and Recommendation was prepared with the assistance of Laureve Blackstone, a first-year student at Brooklyn Law School.
I. Introduction
This employment discrimination action is brought pro se by plaintiff Walter Louis Allen ("Allen") against the New York City Department of Correction ("DOC"), by which he formerly was employed as a Correction Officer. Allen alleges in his complaint that the DOC denied him certain benefits after he became disabled on October 11, 2001. (Compl. ¶ 8 Attach.). Although he checked boxes on the cover sheet of the form complaint indicating that DOC's conduct violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), the actual gravamen of his complaint appears to be that DOC violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. ("ADA"), by failing to grant him a disability retirement pension. (Compl. ¶ 8 Attach.).
DOC is mistakenly identified in the complaint as the New York City Department of Corrections.
DOC has now moved to dismiss the complaint, pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that Allen has failed to (a) set forth a short and plain statement of his claim or (b) state a claim upon which relief can be granted. For the reasons that follow, I recommend that DOC's motion be granted, and that the complaint be dismissed with prejudice.
II. Factual Background
Allen alleges that he has been diagnosed as suffering from "Major Depression/Recurrent and General Anxiety Syndrome." (Id.). Allen does not explain why these conditions allegedly resulted in his becoming disabled on October 11, 2001, rather than some other date, but he does state that he began psychotherapy on October 22, 2001.
The complaint states that Allen's psychotherapy commenced on October 22, 2002, but it is clear that this is a typographical error. (Compare id. with Decl. of Donald C. Sullivan, dated Nov. 10, 2003 ("Sullivan Decl."), Ex. F (setting forth the correct date)).
On or about December 4, 2001, Allen submitted an application to the New York City Employees' Retirement System ("NYCERS") seeking a disability retirement on the basis of his mental state. (Id. ¶ 8 Attach. at 2; Sullivan Decl. Ex. B). After the NYCERS trustees denied his request on October 18, 2002, (Sullivan Decl. Ex. C), DOC sent Allen a "Notice of Proposed Medical Separation/Termination under Civil Service Law Section 73," dated October 2, 2002, which indicated that DOC proposed to terminate his employment as of December 3, 2002 (Id. Ex. I). The Notice observed that Allen had not been at work "since on or about October 2, 2001." (Id.). Although the Notice indicated that Allen could object to DOC's proposed action, (Id.), and Allen alleges that he did so, (Compl. ¶ 8 Attach. at 2), DOC nevertheless terminated his employment on December 3, 2002. (Id.; see also Sullivan Decl. Ex. J).
Allen alleges that he filed charges of employment discrimination with the New York State Division of Human Rights ("NYSDHR") on December 13, and with the Equal Employment Opportunity Commission ("EEOC") on December 16, 2002. (Compl. ¶¶ 9-10). Allen also alleges that he received a Right to Sue letter from the EEOC on December 16, 2002 — the very date that he filed his EEOC charge. (Id. ¶ 12). The form complaint that Allen completed to commence this action contains a direction that the plaintiff annex a copy of that Right to Sue letter to the complaint. (Id. ¶ 5). The document annexed to Allen's complaint, however, is plainly not a Right to Sue letter. It is instead a notice, dated December 16, 2002, which confirmed that Allen had filed complaints with both the EEOC and the NYSDHR, and advised him that his allegations would be investigated by the NYSDHR, not the EEOC. (See Compl. Attach.). The notice further indicated that Allen's federal administrative complaint against DOC arose under the ADA. (Id.). DOC has annexed to its motion papers a copy of an EEOC Right to Sue Letter addressed to Allen, which is dated August 8, 2003. (Sullivan Decl. Ex. G). The file number set forth on that Right to Sue Letter confirms that it relates to the same ADA complaint that was the subject of the EEOC's December 16, 2002 notice to Allen.
Allen's pro se complaint is dated July 22, 2003, and was filed with the Clerk of the Court that same day. (See Docket No. 1). Allen therefore commenced this suit two weeks before the EEOC issued its Right to Sue Letter.
III. Discussion
A. Standard of Review
1. Rule 8(a)
Rule 8(a) of the Federal Rules of Civil Procedure requires that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief." When a complaint gives the defendant fair notice of what the plaintiff's claims are, and the grounds upon which they rest, it is sufficient to withstand a motion to dismiss for violation of this rule. See Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002).
2. Rule 12(b)(6)
On a Rule 12(b)(6) motion to dismiss, the facts as stated in plaintiff's complaint are presumed to be true, and all reasonable inferences are drawn in plaintiff's favor. EEOC v. Staten Island Savings Bank, 207 F.3d 144, 148 (2d Cir. 2000). A district court therefore may dismiss a complaint pursuant to Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. This standard is, if anything, heightened here because the plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (allegations of pro se complaint "however inartfully pleaded" must be held to "less stringent standards" than a complaint filed by parties represented by counsel); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest"); Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992) (noting that district courts are ordinarily required to give "substantial leeway" to pro se litigants in determining whether they should be given leave to amend).
Although courts typically may not look beyond the face of the complaint in deciding a motion under Rule 12(b)(6), it is permissible to consider any "documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiff['s] possession or of which plaintiff had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
In this case, it is not necessary to address DOC's contentions under Rule 8(a) because the complaint and relevant documents establish that Allen is not entitled to any relief.
B. Failure to Exhaust Administrative Remedies
Although Allen purports to bring this action under the ADA, the ADEA and Title VII, his complaint does not contain so much as a syllable suggesting that his termination was the result of discrimination based on his age, religion, racial or ethnic background, color or national origin. Accordingly, even though he checked boxes on the first page of the form complaint indicating that he was asserting claims under Title VII and the ADEA, it is clear that the only statute under which he conceivably might state a claim is the ADA.
The ADA incorporates by reference the procedures applicable to Title VII discrimination suits set forth in 42 U.S.C. § 2000e-5.See 42 U.S.C. § 12117(a); Douglas v. Victor Capital Group, 21 F. Supp.2d 379 (S.D.N.Y. 1998). An employee claiming discrimination on the basis of a disability consequently must exhaust his administrative remedies by filing an EEOC charge and receiving a Right to Sue Letter before commencing suit. 42 U.S.C. § 2000e-5, 12117(a). In this case, it is clear that Allen first received a Right to Sue Letter from the EEOC on August 8, 2003, (Sullivan Decl. Ex. G), after he filed his complaint in this action. His ADA claim therefore must be dismissed due to his failure to exhaust his remedies. See Sommer v. Wood Dining Servs., No. 02 CV 4967 (FB), 2002 WL 31495969, at *1 (E.D.N.Y. Nov. 5, 2002).
C. Timeliness of Complaint
Although the dismissal of an ADA claim for failure to exhaust administrative remedies would ordinarily be without prejudice, Allen faces two additional insurmountable hurdles in this case. First, pursuant to 42 U.S.C. § 2000e-5(f)(1), Allen had only 90 days from the date that he received the EEOC Right to Sue Letter to commence this action. Consequently, if Allen attempted to institute a new action based on the EEOC's Right to Sue Letter following the dismissal of this action, his suit would plainly be time barred for failure to comply with the 90-day period.
Second, if Allen sought to file a new administrative complaint in an effort to secure a new Right to Sue Letter, he would also run afoul of another ADA time limitation. Under 42 U.S.C. § 2000e-5(e)(1), because his complaint was initially filed with the NYSDHR, Allen was required to file his charge with the EEOC within 300 days of the alleged discriminatory act. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999). Here, the last conceivable act of discrimination against Allen occurred on December 3, 2002, when he was terminated. As a consequence, any charge of disability discrimination that Allen might now seek to file against the DOC would be untimely.
Although the failure to file a timely charge of discrimination with the EEOC does not rise to the level of a jurisdictional defect, Downey v. Runyon, 160 F.3d 139, 145-46 (2d Cir. 1999), Allen's opposition papers do not set forth any reason why the 300-day time period should be deemed waived or equitably tolled. Accordingly, because any subsequent complaint of disability discrimination that Allen might file arising out of his DOC employment would be time barred, the dismissal of the complaint in this action should be with prejudice.
D. Title VII and the ADEA
As noted earlier, because the same procedures are applicable, any Title VII claim that Allen might seek to bring would be governed by the time periods previously discussed with respect to the ADA. Similarly, under the ADEA, no action may be brought unless a charge has been filed with the EEOC "within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State Law, whichever is earlier." 29 U.S.C. § 626(d)(2). As a consequence, even if Allen were to bring an administrative claim or lawsuit under Title VII or the ADEA, it would have to be dismissed as untimely.
IV. Conclusion
For the foregoing reasons, the complaint in this action should be dismissed with prejudice.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard C. Casey and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Casey. The failure to file timely objections will result in a waiver of those objections for purposes of appeal.See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).