Gertskis v. U.S. Equal Emp't Opportunity Comm'n
| Decision Date | 20 March 2013 |
| Docket Number | 11 Civ. 5830 (JMF) |
| Parties | POLINA GERTSKIS, Plaintiff, v. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Polina Gerskis, proceeding pro se, sues her former employer, the New York City Department of Health and Mental Hygiene (the "DOHMH"); two federal agencies; several city and federal employees; and her Unions,1 alleging — against various combinations of Defendants — sexual harassment, deprivation of her constitutional rights, breach of contract, "internet harassment," and several forms of employment discrimination, in violation of a veritable potpourri of statutes.2 Defendants and Plaintiff have all filed motions. First, all Defendantsmove to dismiss the operative complaint — that is, the Amended Complaint (Docket No. 4) ("Compl.") — or, in the alternative, for summary judgment, pursuant to Rules 12(b)(1) and 12(b)(6), and 56 of the Federal Rules of Civil Procedure. Defendants invoke sovereign immunity, res judicata and collateral estoppel, statutes of limitations, failure to exhaust administrative remedies, and failure to state a claim, just to name a few arguments. Second, the Federal Defendants move for summary judgment with respect to some of Plaintiffs' claims under FOIA. Third, the Union Defendants move for an order declaring Plaintiff a vexatious litigant and barring her from filing further litigation without leave from the Court. And finally, Plaintiff has filed two motions for leave to supplement her pleadings and to substitute the United States as a party, along with several letters seeking similar relief.
For the reasons discussed below, Defendants' motions to dismiss and for summary judgment are granted, the Union Defendants' motion for an order barring Plaintiff from filing further lawsuits is denied, and Plaintiff's motions to supplement the pleadings and to substitute the United States as a party are denied.3 Accordingly, the Amended Complaint is dismissed.
In reviewing a motion to dismiss pursuant to Rule 12(b)(1) or Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (Rule 12(b)(6)); Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004) (Rule 12(b)(1)).Although a court generally may not look outside the pleadings when reviewing a motion to dismiss, because a pro se plaintiff's allegations must be construed liberally, it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition memoranda, as long as the allegations are consistent with the complaint. See, e.g., Braxton v. Nichols, No. 08 Civ. 8568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); cf. Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (). A district court reviewing a motion to dismiss may also consider documents of which it may take judicial notice, including pleadings and prior decisions in related lawsuits. See Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003) (); see also Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 157 (1969) (). The present case is not the first round of litigation between Plaintiffs and Defendants. Accordingly, the following facts are drawn from Gertskis's various complaints, prior judicial opinions, as well as Plaintiff's opposition memoranda to the extent they are consistent with the Amended Complaint, and are accepted as true for the purposes of this motion.4
This case arises from Plaintiff's employment as an Assistant Chemist by the DOHMH from the early 1990s until August 23, 2010, when she was terminated. (Compl. ¶¶ 27, 42). Beginning in 2003, Gertskis filed numerous grievances and complaints of discrimination with the Union and the DOHMH Equal Employment Opportunity office. See Gertskis v. N.Y.C. Dep'tof Health & Mental Hygiene, No. 07 Civ. 2235 (TPG), 2009 WL 812263, at *1-3 (S.D.N.Y. Mar. 26, 2009) ("Gertskis I"), aff'd, 375 F. App'x 138 (2d Cir. 2010) (summary order). In the period thereafter, she also began applying for senior chemist positions; despite strong performance evaluations through 2005, she was regularly denied these promotions. (Compl. ¶¶ 25-27). See Gertskis I, 2009 WL 812263, at *1-2. After 2005, Gertskis's evaluations declined significantly. (Compl. ¶ 28).
In June 2006, Plaintiff sought a one-year leave of absence, from July 2006 to July 2007, allegedly because she was sexually harassed by Defendant Peter Backman, the former Deputy Assistant Commissioner of the DOHMH . (Compl. 4; id ¶ 3). See also Gertskis I, 2009 WL 812263, at *3. The DOHMH granted her request. Id. During her leave, Plaintiff requested a transfer to another position with the City, but that request was denied. (See Compl. ¶¶ 10, 12). Plaintiff filed an administrative charge of discrimination with the EEOC in December 2006, and amended the charge in January 2007. See Gertskis I, 2009 WL 812263, at *3. In March 2007, shortly before the end of her leave, Plaintiff brought a lawsuit against many of the Defendants in the present action for employment discrimination. See Complaint, Gertskis v. N.Y.C. Dep't of Health & Mental Hygiene, No. 07 Civ. 2235 (TPG) (S.D.N.Y. Mar. 15, 2007) (Docket No. 1). Plaintiff subsequently amended that complaint, bringing various claims of harassment and discrimination against the DOHMH, Backman, and the Union Defendants. See Amended Complaint, Gertskis v. N.Y.C. Dep't of Health & Mental Hygiene, No. 07 Civ. 2235 (S.D.N.Y. Aug. 14, 2007) (Docket No. 14). Gertskis's leave of absence expired shortly after bringing her lawsuit, but she did not return to work because her request for a transfer had been denied. (Compl. ¶ 43). She maintains that she was willing to work at all times, but insisted on working at a different location. (Id.).
After discovery in Gertskis I, Plaintiff sought leave to file a second amended complaint. (Compl. ¶¶ 5-6). By opinion dated September 29, 2008, the Honorable Thomas P. Griesa, United States District Judge in this District, denied the motion to amend on the ground of futility. See Gertskis v. N.Y.C. Dep't of Health & Mental Hygiene, No. 07 Civ. 2235 (TPG), 2008 WL 4449285 (S.D.N.Y. Sept. 29, 2008). Approximately six months later, on March 26, 2009, the Court granted the Defendants' motions for summary judgment and terminated the case. See Gertskis I, 2009 WL 812263. Judge Griesa concluded that some of Plaintiff's claims were time-barred and that, for those claims that were timely, there was no evidence to support Plaintiff's claims. See id. at *4-8. By summary order dated April 30, 2010, the Second Circuit affirmed. See 375 F. App'x 138 (2d Cir. 2010). On May 31, 2011, the Supreme Court denied Gertskis's petition for the writ of certiorari. See 131 S. Ct. 2932 (2011).
Even after dismissal of Gertskis I, Plaintiff remained absent without leave from her job. (Compl. ¶ 43). In 2010, after Plaintiff had been absent without leave for almost three years, the DOHMH took steps to terminate her. Following a hearing conducted by the New York City Office of Administrative Trials and Hearings ("OATH"), pursuant to Section 75 of the Civil Service Law, an Administrative Law Judge ("ALJ") found that Plaintiff had been absent without leave from her job for over three years and that this misconduct justified termination. (Kessler Decl. Ex. 2, at 15-16 (Docket No. 40)). Accordingly, Plaintiff was terminated on August 23, 2010. (Compl. ¶ 42). Plaintiff contends that she was not allowed to present, examine, or cross-examine witnesses, and that she was therefore denied a fair hearing. (Id. ¶ 36). As the ALJ's Report and Recommendation makes clear, however, the ALJ adjourned the hearing several times to give Plaintiff an opportunity to retain counsel, engaged in extensive e-mail correspondence with her and issued explanatory rulings to guide her through the process, and held a pre-trialconference for the express purpose of allowing her to make an offer of proof with respect to the witnesses she intended to call. (See Kessler Decl. Ex. 2 at 2-10).
On June 8, 2011, Plaintiff filed two administrative charges of discrimination with the EEOC, alleging discriminatory and retaliatory termination in violation of Title VII as well as a "conspiracy" between the DOHMH and the Union. (Compl. ¶ 45). Plaintiff received Notice of Right to Sue ("NRTS") letters, thus closing those charges, on June 24, 2011. (Id.). Plaintiff claims she discovered new evidence of race and age discrimination on July 20, 2011, and that she attempted to amend her June 8, 2011 charges with the new information on July 26, 2011. (Id. ¶ 46). Defendant Douglass, a Supervisory Investigator at the EEOC, refused to allow Plaintiff to amend her charges, however, on the ground that they were closed and, instead, opened a new set of charges. (Id. ¶¶ 47-48, 50; see Garner Decl. Ex. 23). Plaintiff repeatedly requested that her July 26, 2011 charges be treated as amendments to the June 8, 2011 charges, and related back to them, as she claims had happened with her prior EEOC submissions. (Compl. ¶¶ 49-53). But Plaintiff ultimately received separate NRTS letters for the July 26, 2011 charges. (Id. ¶ 54).
In addition to these administrative charges of discrimination, Plaintiff filed several FOIA requests, seeking information from the EEOC about her various administrative charges, the EEOC's procedures, and the EEOC's actions on her charges. (Id. ¶¶ 54, 69). Plaintiff claims that several FOIA charges were...
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