LEWIS A. KAPLAN, District Judge.
This is a Title VII action in which the plaintiff, an African American, complains of racial discrimination by the union of which he is a member, essentially by failing properly to represent his interests in grievances he brought against his employer.
In a report and recommendation dated December 19, 1997, Magistrate Judge Peck recommended that the union's motion for summary judgment dismissing the complaint be granted insofar as Morris complained of the union having disciplined him in 1994 and sought relief under Executive Order 11246, but otherwise be denied. The union objected to so much of the recommendation as indicated that portions of its motion should be denied, but the Court previously overruled those objections. Remaining before the Court is plaintiff's objection to so much of the report as recommended the dismissal as untimely of the claim that the 1994 union discipline violated Title VII.
At the outset, it must be noted that the 1994 incident that is the subject of plaintiff's objections antedates all of the conduct referred to in the complaint and in plaintiff's EEOC charge. While the incident was mentioned in plaintiff's papers in opposition to defendant's motion for summary judgment (Morris Aff. PP 14-15; Pl. Br. at 7), its apparent relevance was as an illustration of the alleged animus of the union against him. No claim for relief based on that incident ever has been properly interposed in this action. Judge Peck bent over backward in plaintiff's favor by construing his discursive, poorly organized, and difficult to follow papers in treating such a claim as having been made. At this late date in the action, neither the Magistrate Judge nor the Court is obliged to do so.
Even assuming that the issue were properly before the Court, Judge Peck would have been right in concluding that any claim for relief based on this incident is time barred. Plaintiff concedes that the incident occurred more than 300 days before the filing of plaintiff's EEOC charge and therefore is time barred. While plaintiff now argues that the incident is a proper subject of relief in view of the continuing violations doctrine, no such contention was made before the Magistrate Judge. Even assuming that the incident had been an alleged basis for relief from the outset, it would be inappropriate to permit plaintiff to raise the continuing violation theory for the first time via objections to the Magistrate Judge's report and recommendation.
Even more basically, plaintiff's reliance on the continuing violation theory is misplaced. As this Court explained in Johnson v. Nyack Hospital, 891 F. Supp. 155 (S.D.N.Y. 1995), aff'd on other grounds, 86 F.3d 8 (2d Cir. 1996), the doctrine renders timely claims based on otherwise stale acts only if (1) the acts "within and without the limitations period are sufficiently similar and frequent to justify a conclusion that both are part of a single discriminatory employment practice chargeable to the employer," and (2) "the circumstances are such that a reasonable person in the plaintiff's position would not have sued earlier." 891 F. Supp. at 165.
Assuming arguendo that there is sufficient evidence to raise a genuine issue of fact as to whether the first prong of the test is met, the second nevertheless is not.
As plaintiff's affidavit in opposition to the motion for summary judgment indicates, "the Union's [alleged] failure to provide fair representation to me as an Afro-American dates back at least to . . . 1981." (Morris Aff. P 8) He complained of the union's alleged failure properly to represent him with respect to an April 1992 grievance. (Id. PP 12-13) Immediately upon being notified of the union's action in the 1994 incident, plaintiff complained in writing. (Id. P 15) Indeed, he filed an unfair labor practice charge against the union under Section 8 of the National Labor Relations Act, a charge that the NLRB found was unsupported by sufficient evidence. (Id. Ex. R)
In these circumstances, plaintiff quite clearly could and should have made the March 1994 incident a subject of his EEOC complaint. His failure to do so therefore cannot be excused on the basis of the continuing violation doctrine. This ruling of course does not determine, one way or the other, whether the alleged March 1994 incident will be admissible at trial to show, for example, intent or some other relevant, disputed fact, as distinguished from being a subject as to which relief might be granted.
In sum, plaintiff's objections to the report and recommendation are overruled. The defendant's motion for summary judgment is granted insofar as it seeks dismissal of any claims based on the union's March 1994 imposition of sanctions on plaintiff and for violation of the executive order. The other aspects of defendant's motion were disposed of by order dated January 9, 1998.
Dated: February 3, 1998
Lewis A. Kaplan
United States District Judge