with a Title VII suit, even if he or she failed to file a charge at the agency level, if the record demonstrates sufficient equitable reasons for doing so. Hldaki, supra; Miller v. I.T. & T, supra, 755 F.2d at 23-24.
In this case, the record does not support equitable modification of the filing requirement. Plaintiff asserts that the requirement should be excused because he is a pro se litigant and because he believed he exhausted his remedies by pursuing his grievance through union channels.
However, the pendency of arbitration or grievance procedures pursuant to a collective bargaining agreement, or some other method of collateral review of an employment decision, does not toll the running of the period for filing a discrimination charge with the administrative agency, or waive the filing requirements. Delaware State College v. Ricks, 449 U.S. 250, 261, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980)(citing Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 50 L. Ed. 2d 427, 97 S. Ct. 441 (1976)). This is because contractual rights under a collective bargaining agreement are legally independent from statutory rights under Title VII. Electrical Workers, supra, 429 U.S. at 236. "In instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process." Alexander v. Gardner-Denver Cor., 415 U.S. 36, 54, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974).
Moreover, while plaintiff's unfamiliarity with statutory requirements and legal and administrative procedures entitles him to greater latitude in the construction of his employment discrimination claims, see, e.g., McPartland v. American Broadcasting Companies, Inc., 623 F. Supp. 1334, 1338 (S.D.N.Y. 1985), such considerations alone do not justify the application of equitable principles to forgive "strict adherence to the procedural requirements specified" by Congress in Title VII. Mohasco Corp. v. Silver, 447 U.S. 807, 826, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants."); Connell v. J.P. Morgan Investment Management, Inc., No. 93 Civ. 5940, 1994 WL 132148, at *5 (S.D.N.Y. 1994). "Otherwise, a plaintiff would be able at his or her choosing to circumvent the Congressionally-created administrative scheme designed to facilitate compliance with or to settling disputes falling under Title VII." Moche v. City University of New York, supra, 781 F. Supp. at 167.
In addition, the pendency of plaintiff's motion for appointment of counsel does not justify equitable modification under the circumstances. See Baldwin County Welcome Center v. Brown, supra, 466 U.S. at 151. The Second Circuit has held that the court should exercise its discretion to appoint counsel in civil cases only where the plaintiff has made "a threshold showing of some likelihood of merit." Cooper v. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989). Plaintiff has not made that showing here. There is no evidence whatsoever to support plaintiff's claim that NYSEG's "legitimate, nondiscriminatory reason" for terminating his employment--i.e., his incarceration for a minimum of 8 1/2 years--was not its true reason, but was a pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).
Accordingly, plaintiff has failed to demonstrate any equitable reasons why his Title VII claims against NYSEG and IBEW should be allowed to proceed despite his failure to exhaust the administrative remedies provided by that statute. Cf. Tadros v. Coleman, 717 F. Supp. 996, 1009 (S.D.N.Y. 1989), aff'd., 898 F.2d 10 (2d Cir. 1990). Summary judgment is therefore appropriate dismissing plaintiff's Title VII claims as a matter of law.
III. 42 U.S.C. § 1981.
Defendants assert that plaintiff's claims under 42 U.S.C. § 1981 are barred by the statute of limitations. Actions under § 1981 are governed by the state statute applicable to personal injury claims, which is three years in New York under CPLR § 214(5). Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990); Tadros v. Coleman, supra, 898 F.2d at 12. Claims accrue, and the three-year period begins to run, when the plaintiff knows or has reason to know of the injury which is the basis of the action. Barrett v. United States, 689 F.2d 324, 333 (2d Cir. 1982), cert. denied by Cattell v. Barrett, 462 U.S. 1131, 77 L. Ed. 2d 1366, 103 S. Ct. 3111 (1983). In the context of a claim for wrongful termination of employment actionable under § 1981, the limitations period begins to run when the employee receives notice that the adverse decision has been made, not the point at which the decision ultimately becomes effective. Chardon v. Fernandez, 454 U.S. 6, 8, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981).
Under these standards, plaintiff's claim against NYSEG accrued in June, 1988, when he was notified that he was being terminated from employment because of his arrest and incarceration pending bail. Plaintiff's filing of a grievance against NYSEG on July 11, 1988 is conclusive proof that he had reason to know of the adverse consequences of NYSEG's decision. Accordingly, plaintiff's § 1981 complaint against NYSEG is untimely, and should be dismissed.
As set forth above, IBEW notified NYSEG on November 6, 1988 that it was withdrawing plaintiff's grievance (Item 14, Bystrak Aff., Ex. C). There is thus a factual issue as to whether the accrual date for plaintiff's § 1981 claim against IBEW was within the limitations period.
However, in order to succeed on his claim that the union's failure to take his claim to arbitration was the result of racial discrimination, plaintiff must show at a minimum that the union treated grievances of similarly situated white employees differently. Donaldson v. Taylor Products Div. of Tecumseh, 620 F.2d 155, 159 (7th Cir. 1980). Plaintiff cannot make this showing.
In his amended complaint, plaintiff alleges that NYSEG treated him differently than a white employee named Richard Tripp. However, the union has submitted unrefuted evidence that Mr. Tripp, who was retained by NYSEG during the pendency of his trial for homicide, never filed a grievance with the union (Item 14, Bystrak Aff., P 13). Accordingly, since plaintiff has not pleaded nor has he submitted any evidence to support a claim against the union for employment discrimination under § 1981, summary judgment should be entered in favor of the union.
IV. Breach of Duty of Fair Representation.
A claim against a labor union for breach of its duty of fair representation is subject to the six-month statute of limitations found in § 10(b) of the Labor Management Relations Act, 29 U.S.C. § 160(b). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983); Phelan v. Local 305, 973 F.2d 1050, 1059-60 (2d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1415 (1993). Plaintiff's claim accrued on or about November 6, 1988, when he knew or should have known that the union was withdrawing his grievance. Since his original complaint was not filed until October, 1991, his breach of duty claim against the union was untimely.
Finally, there is no basis for equitable tolling of this claim because plaintiff did not file his unfair labor charge until September, 1 989, after the six-month limitations period had expired.
Accordingly, plaintiff's breach of duty of fair representation claim against the union should be dismissed.
For the reasons set forth herein, defendants' motions for summary judgment (Items 11 & 14) should be granted, and the case should be dismissed.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
September 26, 1994
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation he filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority."
Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the plaintiff and the defendant.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
September 26, 1994
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