Roth v. Farmingdale Pub. Sch. Dist.
| Decision Date | 26 February 2016 |
| Docket Number | No. 14-CV-6668 (JFB)(ARL),14-CV-6668 (JFB)(ARL) |
| Parties | JEFF S. ROTH, Plaintiff, v. FARMINGDALE PUBLIC SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Jeff Roth ("Roth" or "plaintiff"), proceeding pro se and in forma pauperis, filed this action against the Farmingdale Union Free School District1 ("District" or "defendant") on June 20, 2011, alleging that the District violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-34; and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112-12117. Specifically, plaintiff alleges that defendant discriminated and retaliated against him by failing to hire him. Plaintiff also alleges that defendant violated his rights to free speech and due process, and alleges slander by defendant.
Defendant moves to dismiss the complaint, pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that (1) the allegations that defendant discriminated against plaintiff on the basis of gender and disability are barred for failure to exhaust administrative remedies; (2) plaintiff's ADEA claim is barred by the statute of limitations because he failed to file a timely administrative charge with respect to his employment application, and also fails to state a claim; (3) plaintiff fails to state a Title VII retaliation claim; (4) plaintiff fails to state a First Amendment claim; and (5) plaintiff fails to state a due process claim. Defendant also argues that, because the federal claims should be dismissed, theCourt should decline to exercise jurisdiction over the remaining state law claims.
As discussed below, defendant's motion to dismiss is granted in part and denied in part. Plaintiff's Title VII and ADA claims alleging discrimination are barred for failure to exhaust administrative remedies, and plaintiff's ADEA claim is barred by the statute of limitations. Plaintiff also fails to state a cause of action with respect to his Title VII retaliation claim. However, in an abundance of caution, the Court grants plaintiff leave to replead these claims. In so doing, plaintiff must attempt to provide grounds for equitable tolling and must allege how the events and incidents plaintiff describes in his complaint were taken on the basis of plaintiff's protected status under Title VII, the ADEA, or the ADA, such that a plausible discrimination or retaliation claim exists. Plaintiff is also granted leave to replead his state law slander claim so as to give him the opportunity to allege the time, place, and manner of the allegedly false statements, as well as to whom the statements were made. Defendant's motion to dismiss is denied as to plaintiff's First Amendment and Due Process claims.
The following facts are taken from the amended complaint filed on July 8, 2015 ("Am. Compl."),2 as well as the underlying New York State Division of Human Rights complaint ("DHR Compl."), and are not findings of fact by the Court. Instead, the Court will assume the facts in the complaint to be true and, for purposes of the pending 12(b)(6) motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.
Plaintiff has never been employed by the defendant, but rather, alleges that he was "discriminated on a number of employment opportunities." (Am. Compl. at ¶ 8.) Specifically, plaintiff challenges the defendant's decision to provisionally appoint Joseph Hassett to the position of Audiovisual Technician from December 2010 - July 2011. (Id. at 7.) Plaintiff interviewed, but was not selected for, the provisional appointment. (See id.) Plaintiff was told that the District hired a more qualified candidate for the provisional hire position. (Id. at 7, 15.)
Plaintiff alleges that he attended his first Board of Education ("Board") meeting in January 2011, at which he requested that the Board "table the provisional appointment." (Id. at 15.) In July 2011, an eligible list of candidates for the audiovisual technician position was established. (Id. at 7.) The District was required to appoint one of three individuals certified by the civil service commission with the three highest scores on the examination who were willing to accept the appointment. N.Y. Civ. Serv. Law. § 61(1). Plaintiff was not "reachable," or one of the individuals with the highest scores on the list. (Am. Compl. at 7, 15.) Plaintiff contends that the defendant hired Mr. Hasset, even though there was an individual, Carlo Mastrandrea, who had a score above Hasset's on the competitive list. (Id. at 15.)
Plaintiff claims that, on February 20, 2012, he sent three letters to every member of the Board and the Superintendent of Business, Paul Defindini. (Id. at 8.) Plaintiff subsequently spoke on the telephone to Shari Eivers, the Board's president, whichMs. Eivers memorialized in a March 30, 2012 letter. (Id. at 8, 32-34) Plaintiff claims that they discussed "the harassment and intimidation he was receiving." (Id. at 8.) Plaintiff then arranged a meeting with the Board's trustees John Capobianco and Rick Morrison, and Ms. Eivers, at which plaintiff relayed the information in the March 30, 2012 letter, as well as "his advocacy for solar photovoltaic systems and LED stage lighting to be included in the Energy Performance contract." (Id.) Plaintiff also discussed "security technology inadequacies of the district" and "what he felt was a complacent attitude toward security in the budget, and informed them of alternative options to state implementing the security technology." (Id.)
Plaintiff claims that, on May 16, 2013, an "incident occurred in the main lobby of the High School before the Orchestra String concert," at which he was "cornered, baited, taunted, and laughed at." (Id. at 9.) Plaintiff claims that he was removed from the concert, and that he was also removed from an open Board meeting in May 2013, by the Board, whose members claimed that the meeting was "invitation only." (Id. at 18.)
Plaintiff claims that, in September 2013, the Board had the Nassau County police inform him that he was not allowed to attend public events or board meetings. (Id.) Plaintiff alleges that he informed the officers of the Committee on Open Government's Advisory Opinion,3 and explained that he was only interested in attending Board meetings. (Id.)
Plaintiff alleges that, when he went to vote on August 20, 2013, and November 5, 2013, he was "followed, asked what his purpose was for being in the building, verbally and physically intimidated and literally hurried out of the building by a custodian not a security guard." (Id. at 9.)
On October 22, 2013, plaintiff alleges that he attended a PTA meeting "to discuss a security vulnerability resulting from an October 11, 2013 burglary and arrest of two former students." (Id.) Plaintiff claims that "a custodian who was misinformed of Jeffrey Roth's right to be in the building for public events or business was being an instigator even though Jeffrey Roth reported to security when entering the building." (Id.) Plaintiff claims that he inquired about purchasing tickets for the fall musical when he was leaving the building, and subsequently received a letter from Superintendent John Lorentz, which claimed that plaintiff unlawfully entered the building and entered unauthorized areas. (Id.) At a November 8, 2013 football game, plaintiff claims that a custodian "cursed and provoked Jeffrey Roth into a physical altercation while threatening to call the police." (Id.) Plaintiff alleges that, on November 9, 2013, the incident was reported to the "Nassau county ProblemOrientated Policing Unit Officer Lamonaca who had been cc'ed on all correspondence since the May 16, 2013 incident." (Id.) Plaintiff claims that it was determined by his "community advisors to no longer attend public events for fear of his safety, to only attend board of education meetings where his advocacy is recorded within the minutes and to report the matter to the Commission of Human Rights." (Id.)
On December 16, 2013, plaintiff filed a complaint with the New York State Division of Human Rights ("DHR"), alleging that he was discriminated against on the basis of his "age, arrest record, and marital status." (DHR Compl., Ex. C. to Torrey Aff.) Specifically, plaintiff claimed that he was "42 years of age and single" and (Id. at ¶ 1.) Plaintiff further claimed that, although he passed the civil service test and applied for an Audio Technician position in 2011, "a younger and less qualified person was hired." (Id. at ¶ 2.) Plaintiff claimed that in May 2012, at a meeting with members of the Board, he asked why someone with less experience was hired, and Eivers made a comment about his age and marital status. (Id. at ¶ 5.) Plaintiff also alleged that he began attending Board meetings in 2010, at which he advocated for "better security and surveillance systems to be installed at the school" as well as solar panels and energy efficient stage lighting. (Id. at ¶ 3.) Plaintiff also claimed in December 2012, "after Sandy Hook," he "became vocal at the meetings because of various security aspects which the respondent had become complacent with." (Id. at ¶ 4.) Plaintiff further claimed that, in May 2013, Ms. Eivers had him removed from a public concert because he was supporting a different candidate for Board president, and a week later, Superintendent Lorentz had him removed from another Board meeting, claiming it was "invitation only." (Id. at ¶ 6.) Plaintiff alleged that the situation had "escalated" to the point that he was being told that he could not "attend public assemblies such as music or athletic events." (Id. at ¶ 7.)
Plaintiff alleges that, in October 2014, he was issued a...
To continue reading
Request your trial