17-2241-cv(L)
Domitz v. City of Long Beach

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
14th day of September, two thousand eighteen.

PRESENT:           BARRINGTON D. PARKER,
                   PETER W. HALL,
                   RAYMOND J. LOHIER, JR.,

                                      Circuit Judges.


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HOWARD A. DOMITZ,

                                      Plaintiff-Appellant,

                            v.                                                        No. 17-2241-cv(L),
                                                                                      No. 18-127-cv(CON)

THE CITY OF LONG BEACH,

                                      Defendant-Appellee.

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FOR APPELLANT:                                            WAYNE J. SCHAEFER, Schaefer Law Group, P.C.,
                                                          Smithtown, New York.

FOR APPELLEE:                                            Richard Berrios, Assistant Corporation Counsel, for
                                                         Robert M. Agostisi, Corporation Counsel for the City
                                                         of Long Beach, Long Beach, New York.

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   Appeal from the judgments of the United States District Court for the Eastern District of

New York (Wexler, J.).

   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

   Plaintiff-Appellant Howard A. Domitz (“Domitz”) worked for the City of Long Beach,

New York (“City”) Police Department from February 27, 1978, until he retired on April 27,

2012 at the age of 59. Upon his retirement, Domitz began receiving a service retirement

benefit as a member of the New York State and Local Police and Fire Retirement System.

Until Domitz retired, his certified collective bargaining representative was the Long Beach

Police Benevolent Association (“PBA”).

   When Domitz retired, the collective bargaining agreement in place between the City and

the PBA was for the term July 1, 2003 to June 30, 2008 (“CBA”).         But, pursuant to state

law, the City was required to abide by the terms of the CBA until a new agreement was reached.

Under the CBA, Domitz was entitled to choose between a lump sum payment for unused sick

leave, termination pay, and personal leave, or to receive the separation payout in installments

to be paid within five years of his retirement. He chose the latter. At the time he retired,

Domitz was also reimbursed by the City for out-of-pocket medical expenses that exceeded a

certain level, pursuant to a schedule set forth in the CBA.

   On May 29, 2013, the City and the PBA were parties to an arbitration award that essentially

imposed a new collective bargaining agreement.        Under the terms of that award, police

officers were entitled to a base salary increase that ranged from 2.75% to 3.75% from July 1,

2008 (the day after the old CBA expired) to June 30, 2015.        Pursuant to the arbitration,
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Domitz received a lump sum payout for backpay. But under the terms of that award, the bi-

weekly separation payout for unused sick leave, termination pay, and personal leave was not

recalculated or supplemented. In August 2013, the City informed Domitz that under the

terms of the arbitration award it would no longer pay for his (or any other retired police

officer’s) out-of-pocket medical expenses.

   On April 16, 2014, Domitz filed a charge of age discrimination in violation of the Age

Discrimination Employment Act and the New York State Human Rights Law with the EEOC,

alleging that he was the subject of age-based employment discrimination. On January 11,

2016, the EEOC dismissed the charge and notified Domitz that, following its investigation, it

was unable to conclude that the City had discriminated against Domitz.                   This lawsuit

followed.

   We assume the parties’ familiarity with the facts, record of prior proceedings, and

arguments on appeal, which we reference only as necessary to explain our decision to affirm.

   “We review de novo a ‘district court’s grant of a motion to dismiss under Rule 12(b)(6).’”

Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016) (quoting Littlejohn v. City of

New York, 795 F.3d 297, 306 (2d Cir. 2015)). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). We find sufficient “facial plausibility” when the “the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 556). We accept as true all the allegations contained in the complaint. See Iqbal, 556

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U.S. at 678; Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007).

    A complaint may be dismissed on the basis of an affirmative defense if, as here, “the facts

supporting the defense appear on the face of the complaint.” McKenna v. Wright, 386 F.3d

432, 436 (2d Cir. 2004); see also Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018); Ghartey v. St.

John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).           Because the complaint contained

information that suggested the EEOC charge was not timely filed, see 29 U.S.C. § 626(d)(1)(B),

in responding to defendant’s motion to dismiss based on the affirmative defense of

untimeliness, it was incumbent on Domitz at least to plead when he learned, or should have

learned, of the arbitration award if it was not on the day it became effective. Domitz never

pleaded such an alternative date, not even in his briefing on the motion to dismiss.                We

therefore affirm the district court’s decision to dismiss Domitz’s claims as time-barred. The

district court did not abuse its discretion by declining to exercise jurisdiction over Domitz’s

remaining state law claims. See 28 U.S.C. § 1367(c)(3) (explaining that a “district court[] may

decline to exercise supplemental jurisdiction over a [state law] claim . . . if . . . the district court

has dismissed all claims over which it has original jurisdiction.”).

    “We review the denial of a . . . Rule 60 motion for abuse of discretion.” Legg v. Ulster Cty.,

820 F.3d 67, 78 (2d Cir. 2016). Domitz moved for reconsideration of the judgment granting

the City’s motion to dismiss by presenting to the district court, in substance, caselaw it had

relied on in opposing the City’s motion to dismiss. Domitz did not point to any mistake or

other sound “reason that justifie[d] relief.”          Fed. R. Civ. P. 60(b).      The district court

properly exercised its discretion in denying Domitz’s motion for reconsideration.



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   We have considered all Domitz’s remaining arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgments of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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