Opinion
03 Civ. 6624.
July 1, 2004
Ruben Vargas, pro se, New York for the Plaintiff.
Keith J. Frank, Esq., Perez, Furey Varvaro, Uniondale, for the Defendant.
OPINION AND ORDER
Pro se plaintiff Ruben Vargas ("Vargas") filed this action against Buchbinder Warren LLC ("the defendant") pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. On January 15, 2004, the defendant's motion to dismiss was granted in part on the ground that Vargas had not filed an administrative complaint with the Equal Employment Opportunity Commission ("EEOC") within the 300 days required by law. See Vargas v. Buchbinder Warren LLC, No. 03 Civ. 6624 (DLC), 2004 WL 63557, at *2 (S.D.N.Y. Jan. 15, 2004) (the "January 15 Opinion"). The defendant now moves to dismiss on the same ground the remaining claim in this lawsuit, to wit, a post-employment retaliation claim seeking lunch break money owed to Vargas pursuant to a December 11, 2000 arbitration decision. For the following reasons, the motion is granted.
Background
Familiarity with the facts as described in the January 15 Opinion is assumed. Only the facts relevant to this motion will be restated here. Vargas began his employment with the defendant on April 16, 1990, working as a doorman on the night shift. In September 1999, Vargas complained to his union delegate regarding the defendant's failure to provide him with a lunch break. On November 23, Vargas was fired; he was 48 years old. On the same day, Vargas filed a complaint with the National Labor Relations Board ("NLRB"), alleging that his employment was terminated in retaliation for his complaint to his union delegate regarding lunch breaks. The NLRB apparently denied his claim.
On January 14, 2000, Vargas filed a complaint with the Office of the Contract Arbitrator ("Arbitrator") pursuant to the Collective Bargaining Agreement ("CBA") entered into by his union. In the complaint, Vargas alleged that his employer had failed to compensate him for lunch breaks, and that he had been fired because of his age. In a December 11, 2000 ruling, the Arbitrator found for Vargas' employer on the age discrimination claim, and for Vargas on the issue of the uncompensated lunch breaks. The Arbitrator ordered that the defendant pay Vargas "for all days in which he did not receive a meal allowance" pursuant to an agreement between Vargas' union and the defendant.
At all times relevant to this motion, Vargas was a member of Local 32B-32J, and subject to the CBA negotiated between his union and the Realty Advisory Board on Labor Relations Incorporated.
Over eighteen months later, on June 26, 2001, Vargas filed a complaint with the New York State Division of Human Rights ("DHR") (the "Retaliation Complaint"), alleging that his employer had failed to comply with the Arbitrator's decision in retaliation for Vargas' filing of an age discrimination complaint with the DHR. On February 25, 2003, the DHR denied the Retaliation Complaint, finding no evidence of discrimination. The DHR reported that the defendant had computed that Vargas was owed $775.00, and had offered to pay that amount if Vargas signed a release. Vargas refused to sign a release, requesting instead that the DHR order the defendant to pay him the money. The DHR advised Vargas that his charge was filed under federal law, and that he had the right to request EEOC review by writing the EEOC within 15 days of his receipt of the February 25 ruling. On April 29, the EEOC adopted the DHR finding and issued a right to sue letter.
On November 21, 2000, before the Arbitrator's decision, Vargas filed an age discrimination claim based on state law with the DHR in connection with his firing. On March 23, 2001, Vargas sent an eight-page letter to the DHR restating his claims against his employer. There was nothing in the letter regarding the defendant's failure to comply with the Arbitrator's decision. On June 26, 2002, the DHR found that there was no probable cause to believe that the defendant had engaged in age discrimination.
At the time of the January 15 Opinion, the parties had not submitted any evidence reflecting when Vargas' retaliation claim had begun to accrue. Accordingly, the Court could not make a determination regarding the timeliness of that claim. The January 15 Opinion stated:
The proper date for purposes of accrual . . . is not clear. At the very least, the defendant incorrectly asserts that Vargas' claim began to accrue on the date of the termination of his employment. This cannot be the correct date, since it was not until the December 11 arbitration that Vargas had an enforceable right against the defendant for back pay. Furthermore, it is not certain when Vargas became aware that the defendant would refuse to pay the award. Therefore, for purposes of this motion, the Court must assume that Vargas' retaliation complaint was timely and exhausted.Vargas, 2004 WL 63557, at *3.
Pursuant to an Order issued in conjunction with the January 15 Opinion, the parties were referred to Magistrate Judge Kevin N. Fox for settlement discussions. At a conference on March 19, the Court outlined its rulings, and explained their effect on Vargas' claims. The Court encouraged the parties to engage in further good faith settlement negotiations on the remaining post-employment retaliation claim. Also at the March 19 conference, the defendant asked the Court for permission to file a motion to dismiss the remaining claim should settlement negotiations fail. The Court indicated that it would allow such a motion.
On April 2, another settlement conference was held before Judge Fox, but the parties failed to reach an agreement. By letter dated April 5, the defendant sought leave to file a motion to dismiss Vargas' remaining claim, which request was granted. On April 22, discovery was stayed pending the resolution of this motion.
In support of its motion, the defendant argues that the 300-day period in which Vargas was statutorily required to file an EEOC complaint began to run two weeks after he received the December 11, 2000 arbitration decision rendered pursuant to the CBA, or, at the very latest, on March 26, 2001, the date on which the DHR received Vargas' letter outlining other complaints against the defendant. According to the defendant, either measure renders Vargas' Retaliation Complaint untimely.
Vargas claims without elaboration that he did not reasonably believe that the defendant had engaged in retaliatory behavior against him until "six to eight months" prior to the filing of the Retaliation Complaint. In the alternative, Vargas argues that the defendant waived the 300-day statute of limitations, and that his complaint is entitled to equitable tolling.
Discussion
The ADEA protects workers over the age of forty by making it unlawful for an employer to discharge an employee "because of such individual's age." 29 U.S.C. § 623(a)(1). To claim a violation of the ADEA in New York, a complaint must be filed with the EEOC within 300 days of the alleged discriminatory act. See 29 U.S.C. § 626(d), 633(b); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906-07 (2d Cir. 1997). Under a Work Sharing Agreement between the EEOC and the DHR, the DHR has been designated as an agent of the EEOC for the receipt of charges. Consequently, an ADEA claim filed with the DHR constitutes a simultaneous filing with the EEOC. Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 308 (2d Cir. 1996).
The 300-day period effectively acts as a statute of limitations. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (Title VII). A claim of employment discrimination accrues "on the date the employee learns of the employer's discriminatory conduct." Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000). A plaintiff need not file a second complaint to pursue claims that are reasonably related to those presented in a timely filed complaint; a retaliation claim is generally deemed reasonably related to a previously filed EEOC complaint. Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686-87 (2d Cir. 2001). The statute of limitations "while weighty, is not jurisdictional,"Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000), and "is subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998).
There is a serious question as to whether Vargas' retaliation claim is reasonably related to his age discrimination claim. The retaliation claim concerns events that occurred after his employment had been terminated, specifically, the failure to pay an arbitration award premised not on an age discrimination claim but on a claim about a violation of labor laws. See Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 738 (2d Cir. 1998) ("In order for a claim to relate back, it must arise out of the same conduct, transaction, or occurrence as the claims raised in the earlier filing" (citation omitted)). Even if Vargas' retaliation claim were found to be reasonably related to the age discrimination claim he filed with the DHR in 2000, that earlier filing was untimely and cannot be used to satisfy the statute of limitations.
The Retaliation Complaint is thus deemed filed with the EEOC on June 26, 2002, the date it was filed with the DHR. The defendant's conduct at issue here stems from a December 11, 2000 arbitration award. In order for his complaint to be timely, Vargas would have to allege that he did not become aware of his employer's retaliatory conduct, that is, its refusal to pay the December 11, 2000 arbitration award in retaliation for his November 2000 age discrimination complaint, until August 20, 2001, or 300 days prior to the June 26, 2002 filing. It is unnecessary to decide the precise date by which Vargas must have understood that the defendant was engaging in retaliatory conduct. Whenever that day came, it was well before August 20, 2001. Vargas' conclusory claim that he did not become aware of the retaliatory conduct until "six to eight months" prior to the date he filed the Retaliation Complaint, without any explanation or facts to support such a contention, is insufficient to show that this action is timely. Accordingly, because it is clear that Vargas filed the Retaliation Complaint more than 300 days after he became aware of the allegedly retaliatory conduct, the complaint is untimely and barred by the statute of limitations.
The defendant incorrectly asserts that, pursuant to the CBA, Vargas' time to initiate a retaliation claim began to accrue two weeks after he was in receipt of the December 11, 2000 arbitration decision. The relevant CBA provision states:
Should either party fail to abide by an arbitration award within two (2) weeks after such award is sent by . . . mail to the parties, either party may, in its sole and absolute discretion, take any action necessary to secure such award including but not limited to suits at law.
Although this provision of the CBA establishes a guideline by which union members should seek to enforce an arbitration award, it does not support a finding that Vargas necessarily would have been aware of the defendant's allegedly retaliatory conduct two weeks after receiving the arbitration decision.
Vargas incorrectly relies on the theory of equitable estoppel in support of his claim. Equitable tolling has been applied "sparingly" to situations where the claimant has "actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has beeninduced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (emphasis supplied). See also Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d Cir. 1986) (employer's conduct must be "extraordinary" to justify applying equitable tolling). Neither of the circumstances identified in Irwin provides relief to Vargas. He did not file a timely though defective pleading and he cannot point to any trickery by the defendant that caused his delay in filing the Retaliation Complaint with the EEOC. Conclusion
Vargas also argues that the defendant waived the timeliness defense by failing to argue it persuasively to the Court in its first motion to dismiss. The defendant was granted leave to file a second motion to dismiss. As the defendant's submissions make clear, the Retaliation Complaint is untimely and must be dismissed.
The defendant's motion to dismiss the remaining claim in this case as time-barred is granted. The Clerk of Court shall enter judgment for the defendant and close the case.
SO ORDERED: