1 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 LO CAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D 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 Sq uare, in the City of New York, on the 14 th day of September, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges.

---------------- -------------- -------------- -------------- ------------ 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: W AYNE J. S CHAEFER , 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.2 Appeal from the judgments of th e United States District Cour t 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 (“Domi tz”) worked for the City of Long Beach, New York (“City”) Police Department from Fe bruary 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 an d Local Police and Fire Retirement System. Until Domitz retired, his certi fied collective bargaining repr esentative was the Long Beach Police Benevolent Association (“PBA”). When Domitz retired, the collective bargaini ng 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 ab ide by the terms of the CBA unt il a new agreement was reached. Under the CBA, Domitz was entitled to choose between a lump sum paym ent 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 part ies 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 ex pired) to June 30, 2015. Pu rsuant to the arbitration,3 Domitz received a lump sum payout for backpay. But under the terms of that award, the biweekly separation payout for unused sick leav e, 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 hi s (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 th e 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 cl aim 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 , 5564 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 EEO C charge was not timely filed, see 29 U.S.C. § 626(d)(1)(B), in responding to defendant’s motion to di smiss 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 b ecame effective. Domitz never pleaded such an alternative date, not even in his briefing on the motion to dismiss. We
therefore affirm the district co urt’s decision to dismiss Domitz ’s claims as time-barred. The district court did not abuse its discretion by dec lining to exercise jurisd iction 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 juri sdiction 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 reconsider ation 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 di d 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 denyin g Domitz’s motion for reconsideration.5 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