Opinion
Civil Action No. 98-2753 (NHP).
November 29, 1999
Ivan H. Sutherland, Esq., Union City, N.J., Attorney for Plaintiff.
Daniel W. Sexton, Assistant Corporation Counsel, SEAN M. CONNELLY, CORPORATION COUNSEL, Jersey City Law Department Jersey City, N.J., Attorneys for Defendants, City of Jersey City, Jersey City Police Academy.
Kraig M. Dowd, Assistant County Counsel, FRANCIS DE LEONARDIS, HUDSON COUNTY COUNSEL, Jersey City, N.J., Attorneys for County Defendants.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on defendants City of Jersey City, Jersey City Police Academy, Hudson County Sheriff's Department, the County of Hudson, Joseph T. Cassidy, Edward J. Webster, Anthony Staltari, and Lawrence Hendersons' motions to dismiss for failure to state a claim pursuant to F.R.C.P. 12(b)(6). This Court heard oral argument on September 13, 1999. The parties thereafter submitted supplemental briefs addressing the issue of whether plaintiff's complaint is barred by the applicable statute of limitations. Because the parties submitted exhibits, the motions were converted to motions for summary judgment under F.R.C.P. 56. For the following reasons, defendants County of Hudson, Hudson County Sheriff's Department, Joseph T. Cassidy, Edward Webster, Anthony Staltari, and Lawrence Hendersons' motions for judgment as a matter of law are hereby GRANTED. Defendants City of Jersey City and Jersey City Police Academys' motions for judgment as a matter of law are hereby GRANTED.
STATEMENT OF FACTS
Plaintiff, Glen J. Flora (hereinafter "Flora"), served as a Hudson County Sheriff's Officer for over six years until his termination on June 12, 1996. Second Amended Complaint at ¶ 18. Flora alleges that he suffers from the disability of dyslexia. Id. at ¶ 3. He contends that the Jersey City Police Academy (hereinafter "Academy") refused to provide him special accommodations for his disability, thereby causing his dismissal from the Academy. Id. at ¶¶ 17-4; 24. Flora also avers that the Hudson County Sheriff's Department (hereinafter "Sheriff's Dep't"), the County of Hudson (hereinafter "Hudson County"), and certain individually named employees of the Sheriff's Dep't and Hudson County discriminated against him and, ultimately, unlawfully terminated him because of his disability.Flora originally filed an Order to Show Cause and a Verified Complaint in New Jersey Superior Court on October 10, 1995 in order to enjoin any disciplinary action taken by the Sheriff's Dep't against him. The Superior Court issued temporary restraints against the Sheriff's Dep't enjoining the Sheriff's Dep't from disciplining Flora. On October 27, 1995, the Sheriff's Dep't and the individual defendants removed the case to the United States District Court for the District of New Jersey.
Flora filed a discrimination charge with the Equal Employment Opportunity Commission (hereinafter "EEOC") on April 18, 1996, alleging that the Sheriff's Dep't discriminated against him based on his disability. On May 14, 1996, this Court dissolved the temporary restraints previously issued by the New Jersey Superior Court against the Sheriff's Dep't. Flora was terminated from his position on June 12, 1996. The EEOC issued a right to sue letter to Flora on June 19, 1996. On June 20, 1996, Flora filed a retaliation charge with the EEOC, claiming that the Sheriff's Dep't terminated him in retaliation for the EEOC charges previously filed by him. This Court then dismissed Flora's complaint on September 11, 1996.
Because the record for the original case is no longer in the Clerk's office, it is unclear whether this dismissal was with prejudice or without prejudice. In light of Flora's subsequent filing of another complaint, it is likely that the original action was dismissed without prejudice.
The EEOC issued a right to sue letter to Flora on March 13, 1997. Flora then filed another complaint in the United States District Court for the District of New Jersey on June 20, 1997. On April, 1, 1998, the Honorable William H. Walls dismissed this complaint without prejudice for failure to serve the summons and complaint upon the defendants within the 120 days prescribed by Federal Rule of Civil Procedure 4(m).
On June 11, 1998, Flora again refiled the complaint pro se with this Court on June 11, 1998, naming numerous defendants and alleging various violations of the Americans with Disabilities Act, 424 U.S.C. § 12101et. seq. (hereinafter "ADA"). Flora later obtained counsel and filed an Amended Complaint on January 19, 1999. Flora then added violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., (hereinafter "NJLAD"), in his Second Amended Complaint filed on May 21, 1999. In his Second Amended Complaint, Flora alleges that Hudson County and the Sheriff's Dep't discriminated against him because of his disability, in violation of Title I of the ADA, 42 U.S.C. § 12113(b) and the NJLAD. Id. at ¶¶ 1; 16-17; 17-1; 17-2; 17-3; 17-5; 23. Specifically, Flora avers that the Sheriff's Dep't and Hudson County discriminated against him by placing him on prisoner elevator duty, giving him otherwise inferior work assignments, failing to provide sensitivity training to the Department and its Officers, and ultimately terminating his employment. Id. at ¶¶ 17-3; 17-5; 19; 23.
Flora also contends that certain agents of the Sheriff's Dep't and Hudson County discriminated against him based on his disability. The Second Amended Complaint alleges that Sheriff Joseph T. Cassidy (hereinafter "Cassidy") unlawfully discriminated against Flora based on his disability by terminating his employment, giving him inferior work assignments, and failing to provide sensitivity training. Id. at ¶ 19. Flora also contends that Hudson County Management Specialist Anthony Staltari (hereinafter "Staltari") was involved in his unlawful termination. Id. at ¶ 20. The Second Amended Complaint further alleges that former Sheriff Edward Webster (hereinafter "Webster") intentionally prevented Flora from obtaining accommodations at the Academy and that Webster failed to provide sensitivity training at the Sheriff's Dep't. Id. at ¶ 21. In addition, Flora avers that Hudson County Personnel Director Lawrence Henderson (hereinafter "Henderson") also unlawfully terminated him based on his disability, failed to enforce the provisions of the ADA, and failed to provide sensitivity training.Id. at ¶ 22.
Lastly, Flora alleges that the City of Jersey City (hereinafter "Jersey City"), through the actions of the Academy, retaliated, coerced, or interfered with Flora's rights. Id. at ¶ 17-2. Flora further contends that Jersey City and the Academy violated Title III of the ADA, 42 U.S.C. § 12189, and the NJLAD by failing to provide reasonable accommodations for his disability so that he could attend the Academy.Id. at ¶¶ 17-4; 24.
To the extent that Flora alleges a 1983 claim against the defendants in his moving papers, such claims are dismissed because no 1983 claims were averred in the Second Amended Complaint.
DISCUSSION
If on consideration of a motion under Rule 12(b)(6) "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Fed.R.Civ.P. 12(b). The parties here have attached exhibits to their motion papers, and thus the Court shall treat the motions as motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be granted only if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Moreover, the moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. See id. at 323; Chipollini, 814 F.2d at 896. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. To defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). If the record, as a whole, cannot "lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587. In this case, the Court will liberally construe the Second Amended Complaint in light of the fact that the pleadings are poorly drafted.
I. Statute of Limitations: Timeliness of the ADA, Title I Claims
Flora alleges that the Sheriff's Dep't, Hudson County, Cassidy, Webster, Staltari, and Henderson discriminated against him in violation of Title I of the ADA. Title I of the ADA prohibits a "covered entity [from] discriminat[ing] against a qualified individual with a disability because of the disability of such individual" in the employment context. 42 U.S.C. § 12112(a). Several administrative steps must be taken before a plaintiff may file a federal civil rights action under Title I of the ADA in federal court. The enforcement provisions of Title VII of the Civil Rights Act of 1964, as amended, are applicable to actions brought under the ADA. See 42 U.S.C. § 12117(a).
Under Title I of the ADA, a plaintiff must first file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). Section 2000e-5(f)(1) then requires claims to be filed within 90 days of the claimant's receipt of an EEOC right to sue letter. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999). The 90-day requirement is treated as a statute of limitations rather than a jurisdictional requirement. See id. (citing Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 394 (1982)). The question of whether the statute of limitations bars a claim is a legal issue to be determined by the court. See RTC Mortgage Trust 1994 N-1, v. Fidelity Nat'l Title Ins. Co., 58 F. Supp.2d 503, 544 (D.N.J. 1999).
In this case, there is no genuine dispute as to the following facts. Flora was terminated on June 12, 1996. He filed a discrimination charge with the EEOC on June 20, 1996, naming the Sheriff's Dep't as the party who discriminated against him, and naming the individual defendants in the body of the charge. The right to sue letter issued to Flora by the EEOC was dated March 13, 1997. In order to be timely, Flora must have filed his complaint within 90 days of receipt of the right to sue letter. It is presumed that a letter mailed by a governmental agency was mailed on the date indicated on the letter and that an EEOC letter is received three days after its mailing. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1 (1984) (citing Federal Rule of Civil Procedure 6(e)).
The Court presumes that the EEOC mailed the right to sue letter on March 13, 1997, and that Flora received the letter on March 16, 1997. Flora therefore had 90 days — or until June 16, 1997 — to file a complaint. Flora filed the complaint on June 20, 1997, past the 90-day period. That case, however, was before Judge Walls. Although it is likely that Flora's June 20, 1997 complaint was untimely, Judge Walls dismissed Flora's complaint without prejudice on April 1, 1998 for failure to serve the summons and complaint upon the defendants within the 120 days prescribed by Federal Rule of Civil Procedure 4(m).
The dismissal without prejudice of a timely filed action does not toll the 90-day statute of limitations. See Chico Velez v. Roche Products, Inc., 139 F.3d 56, 59 (1st Cir. 1998); Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 666 (8th Cir.), cert. denied, 516 U.S. 944 (1995);Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1030 (10th Cir. 1994); Brown v. Hartshorne Sch. Dist. # 1, 926 F.2d 959, 961 (10th Cir. 1991); Robinson v. Willow Glen Academy, 895 F.2d 1168, 1169 (7th Cir. 1990); Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (per curiam); Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985);Cardio-Medical Assoc. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983); Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
Flora did not refile another complaint until June 11, 1998, approximately 450 days after he received the EEOC right to sue letter. Flora's action, then, is untimely. Therefore, because the dismissal without prejudice of an action does not toll the statute of limitations, Flora's ADA claims against the Sheriff's Dep't, Hudson County, Cassidy, Webster, Staltari, and Henderson are time-barred.
In his moving papers Flora argues that he alleged Title VII claims against all the defendants. However, the Second Amended Complaint is bereft of any allegations that the defendants violated Title VII. Indeed, even if Flora did properly allege Title VII claims against the defendants, these claims must be dismissed because Flora has failed to exhaust administrative remedies. The record reveals that Flora's complaint filed with the EEOC only invoked the ADA (and ADEA), but not Title VII. A charge must be filed with the EEOC before the jurisdictional prerequisites of a Title VII suit are satisfied. See , e.g . , Dickey v. Greene , 710 F.2d 1003, 1005 (4th Cir. 1983), rev'd on other grounds , 729 F.2d 957 (4th Cir. 1984); Mickel v. South Carolina State Employment Serv . , 377 F.2d 239 (4th Cir.), cert . denied , 389 U.S. 877 (1967); Williams v. General Foods Corp . , 492 F.2d 399 (7th Cir. 1974); Bowe v. Colgate-Palmolive Co . , 416 F.2d 711 (7th Cir. 1969).
II. Title III of the ADA : Jersey City and the Academy
Flora next contends that Jersey City and the Academy violated Title III of the ADA by failing to provide him with accommodations for his disability so that he could attend the Academy. Simply put, Jersey City and the Academy cannot be sued under Title III of the ADA because they are "public" entities rather than "private" entities.Title III of the ADA, 42 U.S.C. § 12182-12189, prohibits discrimination on the basis of disability in the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. . . ." 42 U.S.C. § 12182(a). The Second Amended Complaint alleges that Jersey City and the Academy violated Section 12189, which requires that:
Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.42 U.S.C. § 12189.
Jersey City and the Academy cannot be held liable under Title III of the ADA because they are "public" entities. By its plain language, Title III of the ADA applies only to "private entities." In defining "public accommodations," Section 12181(7) states that "[t]he following private entities are considered public accommodations," and then continues to list a number of places that are considered public accommodations. Section 12181(6) defines a "private entity" as "any entity other than a public entity." Title II of the ADA defines a "public entity" as "any State or local government" or "any department, agency, special purpose district, or other instrumentality of a State or States or local government. . . ." 42 U.S.C. § 12131(1). Jersey City and the Academy are "public entities" because Jersey City is a "local government" under Section 12131(1), and therefore cannot be sued under Title III.
For example, the following is merely a portion of the list Section 12181(7) sets forth as private entities that are considered public accommodations: an inn, hotel, motel, or other place of lodging; a restaurant, bar, or other establishment serving food or drink; a motion picture house, theater, concert hall, stadium; an auditorium, convention center, lecture hall; a bakery, grocery store, clothing store, hardware store, shopping center; a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
Several courts have held that Title III applies only to private entities. See Bloom v. Bexar County, Texas, 130 F.3d 722, 726 (5th Cir. 1997) (holding that Title III of the ADA does not apply to public entities, including local governments); DeBord v. Bd. of Educ., 126 F.3d 1102, 1106 (8th Cir. 1997) (noting that Title III of the ADA applies to private entities providing public accommodations, not to public entities), cert. denied, 118 U.S. 1514 (1998); Gonzalez v. Nat'l Bd. of Med. Examiners, 60 F. Supp.2d 703, 707-08 (E.D.Mich. 1999); James v. Peter Pan Transit Management, Inc., 1999 WL 735173, *8 (E.D.N.C. Jan. 20, 1999); Ware v. Wyoming Bd. of Law Examiners, 973 F. Supp. 1339, 1356 (D. Wyoming 1997), aff'd, 161 F.3d 19 (10th Cir. 1998); Delil v. El Torito Restaurants, Inc., 1996 WL 807395, *3 (N.D.Cal. Dec. 2, 1996);Boyle v. Brown Univ., 881 F. Supp. 747, 751 (D.R.I.), aff'd, 70 F.3d 110 (1st Cir. 1995); Kessler Inst. for Rehabilitation, Inc. v. Mayor and Council of Essex Fells, 876 F. Supp. 641, 652 (D.N.J. 1995) ("Municipalities, as well as municipal departments, instrumentalities, and agencies, are specifically excluded from the definition of 'private entities' subject to [Title] III."); see also 28 C.F.R. § 36.104 (defining "place of public accommodation" as "a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories").
Therefore, because public entities like Jersey City and the Academy do not fall under the purview of Title III, defendants Jersey City and the Academy are entitled to judgment as a matter of law. Accordingly, Flora's Title III claims against Jersey City and the Academy are hereby dismissed.
In his moving papers Flora argues that he alleged a Title I claim against Jersey City and the Academy, contending that they were his "employers" for purposes of Title I of the ADA. However, nowhere in the Second Amended Complaint does Flora allege that Jersey City and the Academy were his employers, and nowhere in the Second Amended Complaint does Flora claim that Jersey City and the Academy violated Title I.
III. NJLAD Claims: Subject Matter Jurisdiction
The defendants also move to dismiss the state discrimination law claims brought under the NJLAD. This Court possesses supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). However, supplemental jurisdiction "need not be exercised in every case in which it is found to exist." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). In fact, "[i]t has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. Thus, where the "federal claims are dismissed before trial . . . the state claims should be dismissed as well." Id.The ruling in Gibbs was later codified in 28 U.S.C. § 1367(c)(3), which permits a district court to decline to exercise supplemental jurisdiction where the court has dismissed all claims over which it has original jurisdiction. See Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995). Although the defendants have not advanced this argument, the Court may sua sponte dismiss claims where subject matter jurisdiction is absent. See Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1100 (D.N.J. 1988).
Concerning the effect of 28 U.S.C. § 1367 on Gibbs , the Third Circuit has surmised that § 1367 merely modified the discretionary power of the district courts by allowing district courts to refuse to retain supplemental jurisdiction over state law claims even though the district courts have the constitutional power to entertain such claims. See Lyon v. Whisman , 45 F.3d 758, 760 n. 4 (3d Cir. 1995). However, the Gibbs holding remains intact as to the district court's power to hear state law claims under § 1367(a) . See id .
As delineated above, all of Flora's federal claims against the Sheriff's Dep't, Hudson County, Cassidy, Webster, Staltari, Henderson, Jersey City and the Academy are dismissed. All that remain are the NJLAD claims against the defendants. The Second Amended Complaint demonstrates that Flora and the Sheriff's Dep't, Hudson County, the individual defendants, Jersey City, and the Academy all reside in New Jersey, thereby precluding diversity jurisdiction. Therefore, as a result of the dismissal of all of Flora's federal claims, this Court lacks subject matter jurisdiction over the NJLAD claims alleged against all the defendants. As a result, the NJLAD claims against the Sheriff's Dep't, Hudson County, Cassidy, Webster, Staltari, Henderson, Jersey City, and the Academy are hereby dismissed without prejudice.
CONCLUSION
For the foregoing reasons, defendants Hudson County, Hudson County Sheriff's Department, Joseph T. Cassidy, Edward Webster, Anthony Staltari, and Lawrence Henderson's motions for judgment as a matter of law are hereby GRANTED. Defendants City of Jersey City and Jersey City Police Academy's motions for judgment as a matter of law are hereby GRANTED. Therefore, plaintiff, Glen J. Flora's Second Amended Complaint is hereby DISMISSED and this case is hereby CLOSED.