Nuey v. City of Cranston

524 F.Supp.3d 1

Daniel W. NUEY, Sr., Plaintiff

v.The CITY OF CRANSTON, BY AND THROUGH its Mayor, Allan W. FUNG and Finance Director, Robert Strom in their Official Capacities, Defendant

No. 1:19-cv-104-MSM-LDA

United States District Court, D. Rhode Island.

Signed March 8, 2021

Sonja L. Deyoe, Law Offices of Sonja L. Deyoe, Joseph S. Larisa, Jr., Larisa Law, Providence, RI, for Plaintiff.

William K. Wray, Jr., Adler Pollock & Sheehan P.C., Providence, RI, for Defendant.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

Daniel W. Nuey, Sr., was a Cranston police sergeant, having entered the Department in July 2004 and received a promotion to sergeant in August 2011. He is a Cranston resident, an African American, and a member of the Mashpee Wampanoag Indian tribe.¹ (ECF No. 1 ¶ 2,7.) On June 25, 2013, Sgt. Nuey suffered a work-related disability. (Id. ¶8,9). After a period on Injured On Duty ("IOD") status, receiving IOD salary, Sgt. Nuey applied for a disability retirement pension under the Municipal Employees Retirement System ("MERS"), R.I.G.L. § 45-21.2-1 et seq. There are two types of disability retirements related to this case. One is for an ordinary disability retirement ("ODR") and the other is for a disability that is work-related ("ADR"). On December 8, 2014, Sgt. Nuey applied for the latter, whose benefits are higher. (Id. at ¶¶ 18-20.) Two years later, without having received any retirement benefits at all, he applied for an ordinary disability retirement. (Id. at ¶¶20,21.) Six months later, MERS denied the work-related disability retirement but approved the ordinary one. (Id. at ¶22).

To this date, Sgt. Nuey has received no disability retirement pension payments of either type. He failed to process his retirement after the ODR was approved and, on May 12, 2017, the City terminated him. (Id. at ¶¶ 12, 26.)

The parties then commenced litigation in the state superior court, Cranston having filed to enjoin the police union's move to arbitrate the dispute, taking the position that Nuey was a retired employee not eligible to arbitrate. The Rhode Island Supreme Court ultimately ruled that Nuey's "retirement" was not effective, reasoning that his failure to take the final steps to process the retirement deprived it of the mutuality it requires. The Court reasoned that he was not retired, was therefore still a member of the bargaining unit and, as a result, it upheld the superior court's decision compelling arbitration. City of Cranston v. Intern'l Brotherhood of Police Officers, Local 301, et al. , 230 A.3d 564, 571 (R.I. 2020).²

Meanwhile, in March 2019, Sgt. Nuey had filed this action pursuant to 42 U.S.C. § 1983, contending that the City's termination of his employment in May 2014 was motivated by discriminatory intent, violating his right to due process, his rights under the Americans with Disabilities Act ("ADA"), his right to be free from age discrimination under the Age Discrimination in Employment Act ("ADEA"), and Title VII of the Civil Rights Act of 1964 (based on race and national origin). Because the arbitration issue was then pending decision from the Rhode Island Supreme Court, this Court on Dec. 5, 2019, issued an Order temporarily staying further proceedings. The Rhode Island Supreme Court issued its decision as recounted above, the stay was lifted on Sept. 30, 2020, and the Motion to Dismiss is ripe for decision.

I. JURISDICTION AND STANDARD OF REVIEW

Jurisdiction lies as a federal question, 28 U.S.C. § 1331, pursuant to 42 U.S.C. § 1983 and the anti-discrimination statutes cited above. Only Counts I and IV are currently before the Court, as Counts II and III were voluntarily dismissed on Dec. 5, 2019, leaving only the claims for wrongful termination as a matter of due process, and discrimination on the basis of race and national origin.

The Motion to Dismiss is predicated on procedural grounds, involving questions of law not the sufficiency of the Complaint to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When ruling on questions of law that underlie a 12(b)(6) motion to dismiss, "all reasonable inferences" are drawn in favor of the plaintiff. Abdallah v. Bain Capital LLC, 752 F.3d 114, 117 (1st Cir. 2014).

II. QUESTIONS PRESENTED

Cranston has moved to dismiss this action on various grounds which are addressed in turn. Several of them turn on the requirement that a plaintiff bringing a Title VII discrimination action first exhaust the remedies available to him through administrative proceedings.³ That means that the plaintiff must first bring his complaint to, in this case, the Rhode Island Human Rights Commission (ECF No. 8-2), and give that body an opportunity to adjudicate it. The exhaustion requirement does not affect the § 1983 due process claim, but, if not fulfilled, would be a barrier to the Title VII employment discrimination claim. Martinez Rivera v. Commonwealth of P.R., 812 F.3d 69, 74 (1st Cir. 2016) ; Jorge v. Rumsfeld, 404 F.3d 556, 564-65 (1st Cir. 2005).

A. Did Sgt. Nuey exhaust his claim of national origin discrimination?

This contention need not consume our attention, as Sgt. Nuey has conceded he did not.⁴ His administrative complaint did not check off the box for national origin, and he is therefore precluded from pursuing that claim here. Velazquez-Ortis v. Vilsack, 657 F.3d 64, 71-72 (1st Cir. 2011) (where complainant charged only age discrimination, he had not exhausted a claim for discrimination based on gender).

B. Did Sgt. Nuey fail to exhaust by not presenting his claim to the Cranston City Council?

R.I.G.L. § 45-15-5 provides that a claimant for damages against a municipality may pursue an action only if an account has been presented to the municipality and gone unsatisfied for forty (40) days. Perez v. Town of North Providence, 256 F. Supp. 3d 139, 146 (D.R.I. 2017), held that this statute governs only state court actions for damages, not federal court ones. Chief Judge John J. McConnell, Jr. based that conclusion on Felder v. Casey, 487 U.S. 131, 153, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), which held, in the context of a § 1983 action, that failure to comply with Wisconsin's presentment statute did not bar the federal court action. This Court agrees with Perez and declines to grant the Motion to Dismiss on this ground.

C. Does Sgt. Nuey's failure to receive a "right to sue" letter from the United States Department of Justice constitute a failure of exhaustion?

Exhaustion of administrative remedies has two steps. First is the timely filing of a complaint, which Sgt. Nuey satisfied here when he filed a claim with the Rhode Island Commission for Civil Rights ("the agency") within 180 days of the alleged discriminatory action. Jorge, 404 F.3d at 564. The second is that the complainant-plaintiff pursue the administrative action, giving the agency time to investigate and resolve the alleged wrong.

The investigation by the administrative agency can have one of four possible outcomes: three substantive and one procedural. The agency may, after investigation, find "no probable cause" to pursue the complaint. In that event, the agency, through the Equal Employment Occupation Commission ("EEOC"), must issue a "right to sue letter," which becomes the complainant's entrée to federal court, allowing him or her to file a civil action. Second, the agency may find "probable cause" in which case it will issue a formal charge and attempt conciliation of the claim. If it successfully conciliates the complaint, the matter is over, and the parties go home. Third, if the agency has found "probable cause" but cannot successfully reach a conciliation, and if the action is against a government entity, it will refer the matter to the United States Department of Justice ("DOJ") to enable that entity to pursue resolution. The decision by DOJ not to pursue a complaint after referral is the third possible substantive outcome and, if that occurs, it is the DOJ that issues the "right to sue" letter as a condition precedent to the complainant's filing in federal court. Finally, a "procedural" outcome occurs if 180 days pass without the agency taking action. In that case, the claimant can request a "right to sue" letter and the agency must issue it.

What happened here was none of these. Instead, long after the 180 days had passed, the agency was apparently notified by Sgt. Nuey that he intended to pursue redress "in another forum."⁵ The agency then dismissed the complaint, sending notice of the dismissal along with its "right to sue" notice on November 29, 2018. (ECF No. 8-4). Nuey filed this action 90 days later. The City of Cranston argues that this notice was ineffective because it was not issued by the DOJ.

The issue here can be framed as, "where is the default?" The statute delineates the occasions when it is the DOJ that must issue the "right to sue" letter:

In the case of a respondent which is a government, governmental agency, or a political subdivision, ... if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission ... shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. If ... the attorney General has not filed a civil action in a case involving a government, governmental agency, or a political subdivision, the Attorney General ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent ... by the person claiming to be aggrieved.

42 U.S.C. § 2000e-5(f)(1).

It also describes the occasion when it is the agency that must issue it.

If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eight days from the filing of such charge ... the Commission has not filed a civil action ... the Commission ... shall so

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