Ramos v City of New York

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Ramos v City of New York 2017 NY Slip Op 31336(U) May 8, 2017 Supreme Court, Queens County Docket Number: 708792/15 Judge: Kevin J. Kerrigan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 05/11/2017 11:58 AM 1] NYSCEF DOC. NO. 54 INDEX NO. 708792/2015 RECEIVED NYSCEF: 05/11/2017 FIL!O MAY 11 2017 Short Form Order COUN'TY CLERK QUEENS COUN'TY NEW YORK SUPREME COURT - QUEENS COUNTY Present : HONORABLE KEVIN J . KERRIGAN J ustice ----------------------------------------x Eugenio Ramos , Part _!Q_ Index Number: 708792/15 Plaintiff , - against Motion Date : 4 /5/17 City of New York , Commissioner Dora Schriro , Commissioner Joseph Ponte , Warden Dario Hill , Chief of Security Brian Superknot , Assistant Deputy Warden Dario Emans , and Assistant Deputy Warden Edwin Bennett , each being sued in their individual and Professional capacities , Motion Cal . Number : 143 Motion Seq . No .: 4 Defendants . ----------------------------------------x The following papers numbered 1 to 11 read on this motion by defendant , The City of New York , to dismiss ; and cross-motion by plaintiff for leave to amend the complaint . Papers Numbered Notice of Motion-Affirmation- Exhibits . . . . . . . . ........ .... 1 - 3 Memorandum of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Second Notice of Cross-Motion- Affirmation- " Untabbedu Exh . 5- 7 Memorandum of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reply Memorandum of Law(City) .... . . . . ...... .......... ... . 9 Rep ly Memorandum of Law(Plaintiff) . . . . . . . . . . . . . . . .. . ..... 10-11 Upon the foregoing papers it is ordered that the motion and cross - motion are decided as fo llows : That branch of the motion by defendants to dismiss all causes of action based upon occurrences that transpired prior to August 20 , 2012 as barred by the statute of l imitations , pursuant to CPLR 3211 (a) (5) , is granted to the exte n t that plaintiff ' s causes of action for discrimination and retalia t ion based upon the action of defendants on March 19 , 2012 are dismissed as time-barred and 1 of 4 [*FILED: QUEENS COUNTY CLERK 05/11/2017 11:58 AM 2] NYSCEF DOC. NO. 54 INDEX NO. 708792/2015 RECEIVED NYSCEF: 05/11/2017 denied with respect to his cause of action for hostile work environment based upon said action. However , that branch of the motion to dismiss the complaint for failure to state a cause of action , pursuant to CPLR 3211(a) (7) , is granted . Cross- motion by plaintiff to amend the complaint is denied as moot . Plaintiff, an employee of the New York City Department of Corrections , commenced the present action on August 20, 2015 alleging discrimination on the basis of race , national origin and military stat u s , retaliation and hostile work environment in violat i on of the New York State Human Rights Law (Executive Law §290 , te . seq . ) and the New York City Human Ri ghts Law (Admin is trative Code §8 - 101 et . seq . ) alleged to have occurred on March 19 , 2012 , October 10, 2012 , November 2012 , December 2012 , January 2013, August 5 , 2013 , September 2013 , October 30 and 31 , 2013 , November 1, 20 1 3 , December 26 , 2013 and multiple dates in 2014 . Since the alleged act of discrimination and retaliation that transpired on March 19, 2012 when plaintiff was ordered to submit to a drug test , three years and five months prior to commencement of this action , plaintiff's causes of action based upon that alleged occurrence is barred by the applicable three - year statute of limitations . Contrary to plaintiff's counsel ' s argument that it is not time-barred under the so-called "cont i nuing violation" doctrine , there is no allegation or showing that this alleged act was anything but a discrete act ." [D ]i screte d i scriminatory 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 for filing cha rge s alleging the act" (National R.R . Passenger Corp. v Morgan , 536 U. S . 1 01 , 113 - 14 [2002 ] ) . Even if the March 19 , 2012 action to order plaintiff to submit to a drug test constituted an allegation sufficient to constitute a discriminatory adverse employment action, which it does not , it was a discrete and separate action and , thus , plai ntiff ' s cause of action alleging discrimination on the basis of his race , national origin and military status based upon the March 19 , 20 1 2 action is time-barred. With respect to his cause of action alleging that said action was retaliatory, the continuing violation doct r ine also does not apply to claims of retaliation. " Each ... retaliatory adverse employment decision constitutes a separate actionable ' unlawful employment practice '. [Plaintiff] can only file a charge to cover discrete acts that ' occurred ' within the appropriate time period ... only incidents that took place within the timely filing period are actionable " (id . ) . However, the continuing violation doctrine is applicable to hostile work environment claims. " Hostile environment claims are -2- 2 of 4 [*FILED: QUEENS COUNTY CLERK 05/11/2017 11:58 AM 3] NYSCEF DOC. NO. 54 INDEX NO. 708792/2015 RECEIVED NYSCEF: 05/11/2017 different in ki nd from d i screte acts . Their very nature involves repeated conduct " (id . at 101 , 115) . Therefore , plaintiff ' s cause of action for hostile work environment based upon the March 19 , 2012 action is not time-barred since it is a part of the alleged pattern of conduct spanning time periods within the statute of limitations . Nevertheless , the complaint fails to state a cause of action for hostile work environment based upon the March 19 , 2012 action and the subsequent alleged acts , and fails to state a cause of action for discrimination and r etaliation based upon the subsequent acts alleged , which consist of more d r ug testing , denials of leave requests , marking plaintiff as AWOL when he failed to show up to work o n dates that he was denied leave , and assigning him to unwanted overtime duty on several occasions , including Christmas Eve 2013 . Indeed , even if the action had been commenced within three years of March 19 , 2012 , the ordering of plaintiff on that date to submit to a drug test still would not set forth a cause of action for discrimination or retaliation . The complaint con t ains n o factual allegations linking t he actions complained of to p r ej u dice o r a n imus against plaintiff on the basis of his Hispanic race , Puerto Rican origin or his status as a member of the U. S . Army Rese r ves who had served in Iraq . Moreover , these alleged actions are not sufficiently severe or pervasive so as to raise any issue of fact as to whether there was a violation of p l aintiff ' s rights under either the New York State Human Rights Law or the New York City Human Rights Law(see Harris v Forklift Sy s ., Inc ., 510 U. S . 17 [1993) ; Schwapp v Town of Avon , 118 F 3d 106 [2 ~ Cir 1997) ; Hernandez v Kaisman , 103 AD 3d 106 [l 5 t Dept 2012); Barnum v New York Cit y Transit Auth , 62 AD 3d 736 [2 nd Dept 2009)) , a nd no facts are alleged t h at plaintiff suffered any material adverse change in the te r ms or conditions of his employment (see Forrest v Jew i sh Guild for the Blind , 3 NY 3d 295 [2004)) . In this regard , p l aintiff ' s allegation in his proposed amended complaint that he seeks to interpose , that he did suffer an adverse employment action because he resigned on Ju l y 1 8 , 2016 after taking medical leave necessitated by the toll on his health of the acts of defendants , does not state a cause of action for discrimination , since plaintiff resigned from his employment and was not terminated or demoted and , thus , did not suffer an adverse employment action by defendants . In addition , with respect to plaintiff ' s cause of action for retal i ation , his actions that he alleges prompted defendants to retaliate against him , to wit , his service as president of the Department of Corrections Hispanic Society from 2001 - 2007 and his complaints to OSHA regarding unsafe conditions at Rikers Island , are not protected activities sub j ect to a retaliation claim under the State and City Human Rights Laws -3- 3 of 4 [*FILED: QUEENS COUNTY CLERK 05/11/2017 11:58 AM 4] NYSCEF DOC. NO. 54 INDEX NO. 708792/2015 RECEIVED NYSCEF: 05/11/2017 • (see id . at 313 , concur ring opinion at footnote 11). Accordingly , the action is dismissed . Dated : May 8 , 2017 KEVIN J . KERRIGAN , J .S. C . FILED MAY 11 2017 COUNT't' CL!P.K QU!ENS COUNTY -4- 4 of 4

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