Harris v. City of NY

Decision Date01 August 1998
Docket NumberDocket No. 98-7614
Citation186 F.3d 243
Parties(2nd Cir. 1999) Gerard F. Harris, Plaintiff-Appellant, v. City of New York, New York City Police Department, Howard Safir, Police Commissioner, NYCPD and William Bratton, former Police Commissioner, NYCPD, Defendants-Appellees
CourtU.S. Court of Appeals — Second Circuit

Appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) dismissing plaintiff's discrimination claims on statute-of-limitations grounds. On appeal plaintiff principally claims that the district court erred in dismissing his claims under Rule 12(b)(6) because it used an incorrect accrual date and because plaintiff alleges a continuing violation. We disagree that the district court relied on an incorrect accrual date, but we agree that some of plaintiff's claims constitute viable continuing violation claims.

Judgment AFFIRMED as to the dismissal of plaintiff's claims (1)that he was wrongfully denied promotion to sergeant and (2)that he was wrongfully denied access to the police gymnasium, to the extent that claim was advanced under Title VII or the ADA. Judgment REVERSED and REMANDED as to the dismissal of (1) plaintiff's federal claims (a)that he was wrongfully denied promotion to detective second grade, (b)that he was wrongfully denied access to the police gymnasium, to the extent that claim was advanced under the Rehabilitation Act, and (c)that he was wrongfully denied the opportunity to earn additional vacation days and (2)plaintiff's state law claim. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] ROSEMARY CARROLL, Carroll & Friess, New York, NY for Plaintiff-Appellant.

A. ORLI SPANIER, Assistant Corporation Counsel, New York, NY for Defendants-Appellees.

Before: CABRANES and SACK, Circuit Judges, and SHADUR,* District Judge.

SHADUR, District Judge:

This appeal addresses whether plaintiff-appellant Gerard F. Harris ("Harris") was too late in filing his discrimination claims against his former employer, the New York City Police Department ("Police Department"). Harris sued the City of New York, the Police Department and the current and a former police commissioner (as a matter of convenient usage, all defendants will be referred to here as "City," treated as a singular noun), charging violations of his rights under the Americans with Disabilities Act ("ADA," 42 U.S.C. §12101-12213), the Rehabilitation Act of 1973 ("Rehabilitation Act," 29 U.S.C. §701-796l), Title VII of the Civil Rights Act of 1964 as amended ("Title VII," 42 U.S.C. §2000e to 2000e-17), 42 U.S.C. §1983 ("Section 1983"), the Fourteenth Amendment to the United States Constitution and N.Y. Exec. Law §296 (Consol. 1999).

Holding that Harris' federal claims were untimely filed, the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) granted City's Fed. R. Civ. P. ("Rule") 12(b)(6) motion for dismissal on statute of limitations grounds. Harris' state law claim was dismissed as well, because it was then no longer supplemental to a subsisting federal claim. Harris appeals. We affirm in part and reverse and remand in part.


Harris began working as a City police officer in January 1981. In April 1987 he was designated a detective third grade. Harris later took and passed Civil Service Examination No. 6681 for promotion to sergeant. Those examination results placed him at number 1,810 on the eligibility list for sergeant, which was promulgated on April 7, 1989, so that its normal latest possible expiration date was four years later April 7, 1993.

Harris suffered a back injury in the line of duty in August 1991. After the injury he was placed on "restricted duty" status. Several months later, in February 1992, Harris submitted an application for accident disability retirement benefits, stating that his back injury left him no longer able to perform the duties of a police officer. Those benefits were awarded on April30, 1994 and Harris retired from the police force without having been promoted to either sergeant or detective second grade.

On August 31, 1994 Harris filed his first discrimination complaint against City with the Equal Employment Opportunity Commission ("EEOC"). Thereafter Harris filed several supplemental charges with EEOC, assertedly because of mistakes made by EEOC regarding his original filing. Ultimately EEOC issued a right-to-sue letter in August 1996.

Harris filed suit in the Southern District of New York several months later, alleging that his rights had been violated by City in several respects: (1) It did not consider him for promotion to sergeant; (2) it did not advance him to detective second grade; (3) it prevented him from working more than 8 hours a day, even though an 8 hour and 10 minute workday could earn him 6 additional vacation days per year; and (4) it prevented him from using the police gymnasium. In response City filed a Rule 12(b)(6) motion to dismiss all claims as time-barred, which motion the district court granted in its entirety. This is the appeal from that dismissal.

Rule 12(b)(6)

Any Rule 12(b)(6) movant for dismissal faces a difficult (though not insurmountable) hurdle (Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995)(citations and internal quotation marks omitted)):

On a motion to dismiss under Rule 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff. The district court should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Here the inquiry centers around whether Harris has alleged facts that could bring his claims within the applicable statutes of limitations.

Denial of Promotion to Sergeant

Harris' first claim is that City denied him a promotion to sergeant in violation of the ADA, the Rehabilitation Act and the Fourteenth Amendment (the latter via Section 1983).1 Although those statutory bases for that injury have different statutes of limitations, each would accrue at the same time: when Harris knew or had reason to know of the injury serving as the basis for his claim (see, among the numerous cases so holding, Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994); Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992)).

Accordingly we must determine when Harris knew or should have known that he had been passed over for promotion to sergeant. From that date he had 300 days 2 to file his ADA complaint with EEOC (42 U.S.C. §2000e-5(e), incorporated into ADA by reference in 42 U.S.C. §12117(a)), and he had three years to file his Rehabilitation Act and Section 1983 claims in federal court (Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987)(holding that three years is the appropriate statute of limitations for New-York-based Section 1983 claims), aff'd, 488 U.S. 235 (1989)); Morse, 973 F.2d at 127 (holding that Rehabilitation Act claims are subject to the same statute of limitations as Section 1983 claims)).

In this instance the district court held that Harris knew or should have known of his injury by April 7, 1993. Under New York law civil service lists are ordinarily in effect for no more than four years (N.Y. Civ. Serv. Law §56(McKinney 1999)), and Harris' eligibility list was promulgated on April 7, 1989. Accordingly, the district court reasoned, he should have been aware four years later that he was not going to be promoted. Harris, on the other hand, argues that New York law allows the expiration date for civil service lists to be extended in some circumstances (id.; see, e.g., Petitto v. Barrios-Paoli, 664 N.Y.S.2d 33, 34 (N.Y. App. Div. 1997)), so that the district court should not have treated him as having knowledge of his injury by April 7, 1993.

But such a list extension would certainly be the exception, not the rule. Furthermore, a Personnel Bureau Memo dated February 1, 1990 stated that the Police Department's policy was that it would not promote any officer on less than full duty. That policy statement, coupled with the normal expiration date of the sergeant eligibility list, should at least have triggered Harris's inquiry about his status by or immediately after April 7, 1993. Under cases such as Cornwell, 23 F.3d at 703, we look not only at what Harris actually knew but also at what he had reason to know. In that respect we hold that once the eligibility list expired, Harris should have known he was not going to be promoted to sergeant.

Because Harris did not file his first EEOC charge until August 31, 1994,3 which was more than 300 days after he should have known he was passed over for promotion to sergeant, his ADA claim based on that injury is time-barred. In addition, his Rehabilitation Act and Section 1983 claims based on his non-promotion to sergeant are time-barred because more than three years passed between the accrual date of April 7, 1993 and his October 4, 1996 court filing date.

Harris argues, however, that he was subject to a continuing violation of his rights and he should therefore still be permitted to bring his claim. There is indeed a "continuing violation" exception to the normal knew-or-should-have-known accrual date of a discrimination claim when "there is evidence of an ongoing discriminatory policy or practice, such as use of discriminatory seniority lists or employment tests" (Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)). In that situation the existence of such a continuing discriminatory practice or policy may delay the commencement of the statute of limitations period "until the last discriminatory act in furtherance of it" (Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992)(internal quotation marks and...

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