Summary
applying Title VII case law to Americans with Disabilities Act ("ADA")
Summary of this case from Equal Emp't Opportunity Comm'n v. Bay Ridge ToyotaOpinion
01 Civ. 6336 (JSM).
January 29, 2002
OPINION AND ORDER
Pro se Plaintiff Bernadino De La Cruz purports to bring this action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12112-12117 ("ADA"). Defendants are officers of the American Federation of State County and Municipal Employees ("A.F.S.C.M.E."), an international labor union headquartered in Washington, D.C., District Council 37 ("D.C. 37"), a confederation of 56 local unions representing employees of the City of New York and related public employers, and Local 768, which represents New York City employees in health-related titles. Plaintiff is an employee of the New York City Health and Hospitals Corporation, a member of D.C. 37, and a wheel chair bound paraplegic. In his Complaint, Plaintiff alleges that Defendants, acting in their official capacities as, respectively, officers of A.F.S.C.M.E., D.C. 37, and Local 768, violated the ADA by (1) failing to cause renovations to be made at the D.C. 37 building at 125 Barclay Street in order to make all bathrooms accessible to wheel chair bound union members, (2) failing to install a safe, permanent ramp with hand rails on the Murray Street side of the building, (3) holding special events in a restaurant that is not wheel chair accessible, and (4) terminating Plaintiff from his position as Chairman of the Disability Advisory Committee in retaliation for his filing charges with the Equal Employment Opportunity Commission ("EEOC") regarding the previous three matters. Plaintiff filed all of these claims, including the retaliation charge, with the EEOC in Charge # 16-A1-0505, on December 4, 2000, and January 31, 2001.
On February 13, 2001, after participating in the EEOC's Alternative Dispute Resolution ("ADR") program, Plaintiff entered into a Settlement Agreement with D.C. 37, which provided, inter alia, that:
1. In exchange for satisfactory fulfillment by DC-37 [Respondent] of the promises in this agreement, and in the parties General Release, Bernadino De La Cruz [Charging Party] agrees not to institute a lawsuit under the Americans with Disabilities Act, based on EEOC Charge Number 160-A1-0505.
2. Further, the parties agree that submission of this agreement to the EEOC will constitute a request for closure of EEOC Charge Number 160-A1-0505. . . . .
5. The parties agree that the EEOC is authorized to investigate compliance with this agreement, and to bring a legal action to enforce the settlement.
6. The parties agree that this agreement may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of this agreement.
7. This document, constitutes a final and complete statement of the entire agreement between the parties.
8. In exchange for satisfactory fulfillment by the charging party of the promises made in this agreement, Respondent agrees to:
A. Respondent has agreed to implement architectural plans and construction relative to its facilities bathrooms. Both parties agree that such actions will require presentation to, and approval by, the Respondent's Board.
B. Respondent agrees to expedite Charging Party's previously filed grievance concerning out of title work by Senior Health Advisors.
C. Respondent and Charging Party agree to meet and further discuss the possibility of Charging Party's reinstatement to the position of Chairperson of the DC-37 Disability Advisory Committee.
D. Respondent will install asphalt at the base of the loading dock's ramp to facilitate access to the facility by a wheelchair.
This issue was included in E.E.O.C. Charge # 160-A1-0505. Although it is not specifically mentioned in the Complaint, both Plaintiff and Defendants refer to it in their papers in connection with this motion.
(Defendants' Notice of Motion, Ex. 4.) On February 26, 2001, the EEOC sent an Acknowledgement of Settlement to the parties, which stated that in view of the settlement, the EEOC would discontinue processing Plaintiff's charge.
Subsequently, Plaintiff became convinced that D.C. 37 was in breach of the settlement agreement, and asked the EEOC to take action to enforce it. In response, on March 14, 2001, Michael Bertty, the ADR Program Coordinator, wrote to Plaintiff and informed him that, in his judgment, there had been no breach of the agreement, and that the EEOC would take no further action with regard to the matter. Plaintiff wrote several letters protesting this decision, and refiled his charges with the EEOC as Charges ## 160-A1-1501 and 160-A1-1502. Notices of Dismissal and Right to Sue were sent with respect to these charges on May 31, 2001. This action followed on July 13, 2001.
Defendants move to dismiss this action pursuant to Rules 12(b)(1), 12(b)(5) and 12(b)(6), Fed.R.Civ.Proc.
First, Defendant McEntee contends that this Court lacks jurisdiction over his person because he is a resident of Washington, D.C., and neither lives nor works in New York. In addition, both he and Defendant Greene contend that service upon them was improper because they had not authorized the D.C. 37 Legal Department, upon whom Plaintiff served the Summons and Complaint, to accept service of process on their behalf. Moreover, all Defendants argue that Plaintiff's suit under the ADA is barred by the settlement agreement reached in the EEOC ADR process, and that this Court lacks subject matter jurisdiction over an action to enforce that settlement agreement. Finally, Defendants argue that, as a matter of law, Plaintiff's claim of employment discrimination cannot stand because Plaintiff is not an employee of D.C. 37.
SUBJECT MATTER JURISDICTION
The February 13, 2001 settlement agreement, to which Plaintiff, D.C. 37 and the EEOC were parties, constituted a complete resolution of all of the issues raised in Charge # 16-A1-0505, and in the subsequent Charges (## 160-A1-1501 and 160-A1-1502). In that agreement, Plaintiff agreed not to file a lawsuit based upon the facts alleged in that Charge (Notice of Mot., Ex. 4, Settlement Agreement, ¶ 1), and that the EEOC would discontinue its processing of the Charge (Notice of Motion, Ex. 4, Settlement Agreement, ¶ 2), and all parties agreed that the agreement could be enforced in the courts. (Notice of Mot., Ex. 4, Settlement Agreement, ¶¶ 5, 6). Thus, Plaintiff's action must be viewed as seeking interpretation and enforcement of the settlement agreement.
EEOC agreements are enforceable if entered into voluntarily.Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 1021 n. 15 (1974). Here the pro se plaintiff does state that his acceptance of the settlement agreement was based on mistake. However, that mistake apparently was that he did not know that D.C. 37 would breach the agreement, and that he would be placed in a position in which he, as an individual, would not have standing to pursue enforcement. In light of the Court's disposition of this motion — finding that Plaintiff may seek to enforce the agreement in this action — the "mistake" of which Plaintiff complains does not exist.
Defendants argue that this claim of breach of contract raises questions of state law only, even though Plaintiff's underlying grievance is for alleged violations of a federal statute, and the agreement was reached under the auspices of the EEOC's ADR program. Thus, Defendants argue, absent an independent basis for federal jurisdiction, this Court does not have subject matter jurisdiction over this action.
In support of their position, Defendants cite Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673 (1994). In that case, which involved a claim that the federal district court had jurisdiction to interpret and enforce a settlement agreement entered in a case previously before that court, the Supreme Court stated that the suit involved only a claim for breach of a contract, "part of the consideration for which was dismissal of an earlier federal suit." Id. at 1677. It continued to state that since "[t]he facts to be determined with regard to such alleged breaches of contract are quite separate from the facts to be determined in the principal suit, . . . automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business." Id. The Second Circuit also followed this rule in Scelsa v. City University of New York, 76 F.3d 37, 41 (2d Cir. 1996), a case that involved claims originally brought under the Civil Rights statutes, 42 U.S.C. § 1983, 2000d and 2000e.
However, Kokkonen and Scelsa are not controlling in the situation presented here. Nearly every court that has considered whether enforcement of a settlement agreement entered into to resolve a charge of employment discrimination that has been filed with the EEOC is within the subject matter jurisdiction of the federal courts has concluded that such an action is brought directly under Title VII and that consequently the federal courts have jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3) (§ 706(f)(3) of Title VII). See, e.g., Snider v. Circle K Corp., 923 F.2d 1404, 1407-08 (10th Cir. 1991); Eatmon v. Bristol Steel Iron Works, Inc., 769 F.2d 1503, 1513 (11th Cir. 1985); EEOC v. The Henry Beck Co., 729 F.2d 301, 305-06 (4th Cir. 1984); EEOC v. Safeway Stores, Inc., 714 F.2d 567, 571-72 (5th Cir. 1983), cert. denied, 467 U.S. 1204 (1984); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1040 (7th Cir. 1982); Montalvo v. U.S.P.S., 887 F. Supp. 63, 65 (E.D.N.Y. 1995), aff'd without op., 1996 U.S. App. Lexis 12262 (2d Cir. April 19, 1996); Evans v. Waldorf-Astoria Corp., 827 F. Supp. 911, 914 n. 1 (E.D.N.Y. 1993),aff'd, 33 F.3d 49 (2d Cir. 1994).
These courts consistently state that the most important reason for finding federal jurisdiction to interpret and enforce EEOC settlement agreements is that "resolution of complaints of employment discrimination through conciliation agreements and avoiding resort to litigation has consistently been the primary means through which the EEOC vindicates rights secured by Title VII." EEOC v. Liberty Trucking, 695 F.2d at 1042. Thus, as the Fifth Circuit stated in EEOC v. Safeway Stores, 714 F.2d at 573, "it would be illogical to conclude that Congress intended exclusive state jurisdiction, that there be no federal jurisdiction to consider or enforce the voluntary agreements it designated as the primary means of accomplishing its goal of eliminating employment discrimination," and further, "Were we to rule that the federal courts were unable to enforce these agreements, we would undermine the very foundation upon which the conciliation process, the `most important function of the EEOC,' rests."Id. at 574.
Moreover, no court has held that this principle applies only when the EEOC initiates or joins in an enforcement action. See Snider v. Circle K Corp., 923 F.2d 1404, 1408 (10th Cir. 1991) ("Upon breach of a Title VII settlement agreement, an employee undoubtedly may bring an action for breach of that agreement."); Kirby v. Dole, 736 F.2d 661, 664 (11th Cir. 1984); Fulgence v. J. Ray McDermott, 662 F.2d 1207 (5th Cir. 1981);Montalvo v. U.S.P.S., 887 F. Supp. 63 (E.D.N.Y. 1995); Kiper v. Louisiana State Bd. of Elementary and Secondary Education, 592 F. Supp. 1343, 1359 (M.D.La. 1984), aff'd, 778 F.2d 789 (5th Cir. 1985).("All of the reasons cited in support of jurisdiction over such actions brought by the Commission apply with equal force to actions brought by the aggrieved employee."). In fact, one court has held that this principle applies even if the EEOC was not involved in the settlement agreement, as long as the settlement agreement furthered the preeminent aim of the statutory scheme — to exact voluntary compliance with the laws against discrimination in employment. Eatmon v. Bristol Steel Iron Works, Inc., 769 F.2d at 1512. ("[T]he crucial factor to Title VII jurisdiction over these types of cases is not EEOC participation. It is furtherance of the congressional goal of conciliation and voluntary compliance with Title VII. The releases entered into here, even absent EEOC participation, certainly serve and further this goal.").
Although all of the case law cited above deals specifically with Title VII, rather than the ADA, 28 U.S.C. § 12117(a) makes it equally applicable to cases brought pursuant to the ADA. That section provides that:
The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8 and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
The settlement agreement at issue here does not limit the right to enforce it to the EEOC, or to a particular court. As set out above, paragraph 6 of the agreement stated, "The parties agree that this agreement may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of this agreement." Thus, the fact that the agreement also authorized the EEOC to investigate compliance and bring a legal action to enforce the agreement (Settlement Agreement, ¶ 5), does not negate in any way the right of any party who alleges a breach to bring such an action in any court that has jurisdiction over the matter.
Finally, while it is true that Plaintiff agreed in paragraph 1 of the agreement that he would not initiate a lawsuit "under the ADA, based on EEOC Charge Number 160-A1-0505," an action to construe and enforce an agreement reached to resolve that charge is not a lawsuit based on the underlying charge, and will not involve the court's determining whether the underlying charge was legally sufficient. See Eatmon v. Bristol Steel Iron Works, 769 F.2d at 510 n. 7; EEOC v. Safeway, 714 F.2d at 575 ("We find that a district court can order that a party perform the promises it made in a conciliation agreement without an independent determination that discriminatory practices have, in fact, occurred. . . . If a trial de novo or a finding on the merits were required before any voluntary agreement to resolve discrimination claims could be enforced, conciliation agreements would be rendered worthless as a means of securing compliance with Title VII."). It follows that it is not necessary to consider whether Plaintiff is an employee of D.C. 37.
PERSONAL JURISDICTION
Defendant Gerald McEntee contends that this Court lacks jurisdiction over his person because he is a resident of Washington, D.C., with insufficient contacts with New York to support the personal jurisdiction of this Court. He and Defendant Helen Greene also claim that service of process was defective as to them. It is not necessary for the Court to consider these claims because there is no question that the Court does have jurisdiction over Defendant Lee Saunders, and that service was proper as to him. Since the settlement agreement at issue was between D.C. 37 and Plaintiff, and it is the actions of D.C. 37 and the condition of D.C. 37's building that are at issue in this case, neither Defendant McEntee nor Defendant Greene are necessary to the Plaintiff's receiving any relief to which he may be entitled. Apparently these two Defendants were named only because Plaintiff complained to them about D.C. 37's alleged breach of the settlement agreement, and/or about his underlying charges, and they failed to intercede and cause D.C. 37 to accede to his demands. Neither these Defendants nor their organizations — A.F.S.C.M.E. and Local 768 — were parties to the settlement agreement at issue here. Thus, these two Defendants are not proper parties to this litigation, and Plaintiff is in no way prejudiced by their dismissal as Defendants in this action.
Although Defendants do not raise the issue, it should be noted that Defendant Saunders is clearly sued in his official, and not his individual capacity. That D.C. 37, the actual signatory to the agreement, is not a defendant, is not significant. As the Supreme Court stated in Kentucky v. Graham, 473 U.S. 167, [ 473 U.S. 159] 105 S.Ct. 3099, 3105 (1985), "Official-capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent.' . . . As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." (citations omitted). See also Hamlin v. Charter Twp. of Flint, 942 F. Supp. 1129, 1140 (E.D.Mich. 1996),aff'd in part, rev'd in part on other grounds, 165 F.3d 426 (6th Cir. 1999) ("Consistent with the other workplace discrimination statutes, Defendants . . . may be sued individually in their official capacity under both the ADA and the MHCRA."). While these cases deal with actions against governmental entities, the same principle has been applied to non-governmental defendants. See York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir. 1982). In any event, even if this were not the case, it would make no substantive difference because the Court would grant this pro se Plaintiff leave to amend his Complaint to assert his claims directly against D.C. 37.
CONCLUSION
For the foregoing reasons, the motion to dismiss as against Defendants McEntee and Greene is granted. The motion to dismiss this action against Defendant Saunders, in his official capacity as Administrator of D.C. 37, is denied. Accordingly, the Court will hold a conference with the remaining parties in this matter on Thursday, March 14 at 3:15 p.m., at the U.S. Courthouse, 500 Pearl Street, in Courtroom 15C.
SO ORDERED.
Dated: New York, New York January 29, 2002
JOHN S. MARTIN, JR. U.S.D. J.
Copies to:
Plaintiff:
Bernadino De la Cruz 49 Fulton Street Apt. 19-O New York, N.Y. 10038
For Defendants:
Mary J. O'Connell Sr. Assistant General Counsel District Council 37, AFSCME, AFL-CIO 125 Barclay Street New York, N.Y. 10007