Tully v. Cnty. of Nassau

MATHEW B. TULLY, Plaintiff,

v.COUNTY OF NASSAU, Defendant.

11-CV-2633 (ADS)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 14, 2012

MEMORANDUM OF

DECISION AND ORDER

APPEARANCES:

Tully Rinckey PLLC

Attorneys for the plaintiff

By: Steven L. Herrick, Esq., Of Counsel

John Ciampoli, Nassau County Attorney

Attorneys for the defendant

By: Assistant Nassau County Attorney Barbara E. Van Riper

SPATT, District Judge.

The plaintiff, Mathew B. Tully ("Tully" or "the Plaintiff"), commenced this action against the defendant, County of Nassau ("Nassau County" or "the Defendant"), alleging that the Defendant discriminated against him and engaged in prohibited employment actions based on his military service in violation the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301 et seq., and New York Military Law §§ 242 and 243. Presently before the Court is the Defendant's motion to dismiss the Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") for failure to state a claim upon which relief can be granted. In addition, the Plaintiff has filed a cross-motion to strike theDefendant's motion to dismiss as untimely and improper. For the reasons set forth below, the Court denies the Plaintiff's cross-motion to strike and grants the Defendant's motion to dismiss.

I. BACKGROUND

Unless otherwise stated, the following facts are drawn from the Plaintiff's complaint and are construed in the light most favorable to the Plaintiff.

On or about June 1, 1993, the Nassau County Department of Parks, Recreation and Museums ("the Parks Department") hired Tully as a park ranger on a seasonal basis. Soon thereafter, on or about September 17, 1993, Tully was promoted to a part-time park ranger position on a year-round basis. Throughout the course of his employment with the Parks Department, Tully was enlisted in the United States Army National Guard, and remains in that service to this day. In October of 1995, Tully was called into active service while in the employ of the Parks Department. Before he entered active duty, Tully informed Nassau County of his military commitment. After Tully left to fulfill his military obligations, Nassau County informed the New York State and Local Retirement System that Tully was no longer a county employee. Subsequently, on or about November 9, 1995, Nassau County terminated Tully's employment.

Tully fulfilled his military commitment by serving on active duty beginning in October of 1995 and concluding in April of 1998, whereupon he was honorably discharged. Upon his return to civilian life, Tully informed Nassau County that he intended to return to his position with the Parks Department. On or about March 13, 1998, Tully spoke with the Director of Safety and Security for the Parks Department, Russell Furchak ("Furchak"), about returning to work at the Parks Department. According to Tully, following his conversation with Furchak, Nassau County agreed to reinstate Tully in his former position and provided that his reinstatement was to be effective retroactively to the date of his termination, which was either October or November of1995. However, Tully alleges that Nassau County never recalculated the pension credits or accumulated leave time, and failed to determine whether Tully would have been in line for promotional opportunities.

On March 26, 1998, Tully received a work schedule from the Parks Department that was effective April 3, 1998. He was also issued park ranger uniforms. In addition, on March 31, 1998, Tully was issued a gas card. However, before he could commence working at the Parks Department, on April 1, 1998, Furchak informed Tully that he was not qualified to return to work as a park ranger for Nassau County without first qualifying as a New York State Security Officer. Tully contends that he attempted to contact Furchak on several occasions from April through July of 1998 regarding this qualification, but that Furchak failed to respond. As a result, on or about July 17, 1998, independently and without instruction from Nassau County or the Parks Department, Tully applied for a New York State Security Officer License. Tully asserts that his pending application for the requisite license rendered him eligible to return to work as a park ranger.

That same day, July 17, 1998, Tully informed Furchak of his pending application and "his eagerness to return to work". (Compl., ¶ 21.) Nevertheless, Tully states that on July 31, 1998, Nassau County terminated his employment. On behalf of Nassau County, Furchak attempted to inform Tully of his termination by a letter dated July 27, 1998. However, this letter was returned unopened. Furchak, acting on behalf of Nassau County, sent another letter to Tully on August 4, 1998, notifying him that he was no longer on the payroll as of July 31, 1998. This letter was also returned unopened.

On August 7, 1998, Tully sent a letter to Furchak inquiring about when he could return to work. Subsequently, on or about August 19, 1998, Furchak sought the assistance of the NassauCounty District Attorney to compel Tully to return the uniforms and equipment he was issued. On September 28,1998, Tully sent a letter to Furchak and Furchak's superior seeking to enforce his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994.

According to Tully, who had not read the letters from Furchak dated July 27, 1998 or August 4, 1998, he learned of his termination from a prospective employer, who informed him that when he contacted Nassau County, an unknown Nassau County employee stated that Tully had been "dismissed with cause and a referral was made for criminal prosecution". (Compl., ¶ 28.) In the complaint, Tully cites to two memoranda supporting his position that he was terminated following his return from active duty. The first is a memorandum from the Parks Department Captain Richard George Breusch ("Breusch") to Furchak dated September 30, 1998, in which Breusch "acknowledged that Tully had numerous contacts with Nassau County in an effort to return to employment with the Parks [Department]". (Compl., ¶ 29.) The second, is a memorandum written by Furchak on October 2, 1998, in which Furchak "admitted" that "Tully's employment was terminated by [Nassau County] (he was tying up a budget slot)". (Compl., ¶ 30 (alteration in original).)

On June 1, 2011, Tully filed the instant complaint against Nassau County asserting twelve causes of action for alleged violations of USERRA and the New York Military Law. Specifically, in the first through seventh causes of action, Tully asserts claims under USERRA (the "USERRA claims"), alleging that: (1) Nassau County discriminated against him in violation of 38 U.S.C. § 4311(a) by terminating his employment based on his military service in 1995 and failing to pay or reimburse him for the fees associated with becoming a Park Ranger and Security Officer in 1995 and 1998; (2) Nassau County violated 38 U.S.C. §§ 4312 and 4313 by failing to restore his employment, to restore him to his previous position, or to make reasonable efforts toqualify him for his former position upon his return from service in April 1998; (3) assuming his employment was restored in April 1998, Nassau County violated 38 U.S.C. § 4316 by failing to retain him in its employ for a year following his reinstatement; and (4) Nassau County violated 38 U.S.C. § 4318 by denying him the benefit of continued participation in the New York State Retirement System, a pension benefit plan, upon his reemployment in April 1998.

In causes of actions eight through twelve, Tully asserts claims under the New York Military Law (the "New York Military Law claims"), alleging that: (1) Nassau County discriminated against him in violation of New York Military Law § 242 by denying to him a leave of absence while he was on active duty; denying reemployment, retention in employment, promotion, and benefits of employment upon his return; and denying paid time off while he was on active duty; and (2) Nassau County discriminated against him in violation of New York Military Law § 243 because his November 1995 termination denied to him the opportunity to make contributions to his pension and other rights and privileges.

On August 3, 2011, pursuant to Rule 12(b)(6), the Defendant filed the instant motion to dismiss the complaint in its entirety for failure to state a claim. The Defendant contends that all of the Plaintiff's claims are barred by the statute of limitations, or, in the alternative, under the doctrine of laches. In addition, to the extent the Court dismisses the Plaintiff's USERRA claims, the Defendant seeks the dismissal of the New York Military Law claims for lack of subject matter jurisdiction. In response, the Plaintiff filed a cross-motion to strike the Defendant's motion to dismiss on the ground that it was filed one day late. Furthermore, the Plaintiff denies that any of his claims are time-barred, and asserts that whether a claim is time-barred by the statute of limitations or the doctrine of laches are inappropriate issues for resolution on a motion to dismiss.

The Court first addresses the Plaintiff's cross-motion to strike, and then addresses the Defendant's motion with respect to the USERRA claims and the New York Military Law claims separately.

II. MOTION TO STRIKE

The Plaintiff filed the complaint in this action on June 6, 2011, and effectuated service on the Defendant on July 11, 2011. Pursuant to Federal Rule of Civil Procedure 12(a) ("Rule 12(a)"), the Defendant was required to serve a responsive pleading or file the instant motion to dismiss "within 21 days after being served with the summons and complaint". Fed. R. Civ. P. 12(a)(1)(A). Thus, pursuant to Rule 12(a), the Defendant's motion was due on August 1, 2011. However, due to a purported miscalculation error by counsel, the Defendant filed the instant motion on August 2, 2011, one day late.

Based on this...