United States District Court, S.D. New York
January 5, 2004.
JORGE A. QUIROZ, Plaintiff, against , UNITED STATES POSTAL SERVICE and WILLIAM J. HENDERSON, Defendants
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiff Jorge A. Quiroz brings this action against the United States
Postal Service ("USPS") and its Postmaster General, for alleged
violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. ("Title VII"), in the form of
discrimination on the basis of national origin. This matter comes before
the court on a motion by defendants for summary judgment, or, in the
alterative, to dismiss for failure to prosecute. For the following
reasons, defendants' motion is denied.
Plaintiff is an Ecuadorian male, employed as a mechanic by USPS
currently and at all relevant times. On December 26, 2000, plaintiff
filed the complaint in the instant case, alleging that he had been
subjected to discriminatory treatment by defendants on the basis of his
national origin, and to retaliation for his having filed complaints with
the Postal Service Equal Employment Opportunity ("EEO") office regarding
his treatment. On May 9, 2001, plaintiffs counsel sent a letter to Judge
Batts, before whom this case was pending until its transfer to the
undersigned on October 15, 2003, requesting that the action be placed on
the suspense calendar. The letter stated that on or about March 9, 2001,
plaintiff had filed new EEO claims of discrimination and retaliation, and
requested that the instant action be placed on the suspense calendar
"until the Agency issues a Final Decision regarding plaintiffs new claims
so that they can be brought under the jurisdiction of this court." The
letter also stated that upon the issuance of a Final Decision plaintiff
wished "to file his claims in federal court and consolidate all matters."
Despite defense counsel's objections, Judge Batts granted this request on
May 23, 2001.
On January 28, 2002, plaintiff signed a Settlement Agreement with his
union and USPS. The agreement referenced four grievances, and included
the following sentence: "It is understood that this agreement is in full
complete settlement of all outstanding administrative EEO complaints or
appeals, in this or any other forums, filed by the grievant."
In a letter dated February 14, 2002, Mitchell Sturman, the manager of
EEO Compliance and Appeals with USPS, New York Metro Area, wrote a letter
to plaintiffs counsel, attaching the settlement agreement. The letter
quoted the portion of the agreement that we quoted in the previous
paragraph, and made the following statements: "A check of our records
indicates that there is one complaint, case no. 1 A-103-0022-01, filed on
October 18, 2001, which was pending a determination to accept or dismiss
the complaint when the above mentioned agreement was executed. It should
also be noted that I have been advised that during the settlement
discussion that your client was in fact in telephone communication with
you and that the agreement signed [sic] with your concurrence. Based on
the foregoing, case no. 1A-103-0022-01 is now closed as is any other
complaints [sic] initiated prior to January 28, 2002. If you disagree
with any of the information set forth, you are afforded 7 calendar days
from receipt of this letter to respond. Absent any response, this matter
will remain closed with no rights of appeal." Neither plaintiff nor
plaintiffs counsel responded to the letter.
On December 10, 2002, plaintiffs counsel wrote a letter to Judge Batts,
which was apparently not copied to defense counsel. In that letter, he
noted that "[p]laintiff requested that this matter be placed on the
suspense calendar due to other pending EEO matters filed with the postal
agency," and stated that "Currently, I am awaiting the issuance of the
Agency's Final Decision so that plaintiff can file the additional claims
in federal court." He repeated his intention, upon issuance of a final
decision, to "request that the above referenced matter be placed on the
active calendar" and to "move the court to consolidate all cases." He
concluded that "I expect to received [sic] the Agency's Final Decision by
January 31, 2003."
On June 3, 2003, defendants' counsel wrote to plaintiffs counsel,
enclosing a proposed stipulation and order, dismissing the instant action
with prejudice. The letter referenced the January 28, 2002, settlement,
and asked that plaintiffs counsel sign the stipulation "in order to
administratively close this matter." Plaintiffs counsel did not respond.
On July 18, 2003, plaintiffs counsel made the following statements in a
letter to Judge Batts: "The court placed this matter on the suspense
calendar because of outstanding administrative complaints pending in the
Postal Agency's EEO. Such outstanding complaints have been recently
disposed of. Currently there are no administrative EEO matters pending.
Accordingly, I respectfully request that the court order the above
referenced matter be placed on the court's active calendar and schedule a
conference to set up a discovery schedule." By an order of the same date,
Judge Batts directed the Clerk of the Court to remove the case from the
court's suspense calendar.
By letter dated July 23, 2003, defendants' counsel requested permission
to move to dismiss the action, or, in the alternative, for a pre-motion
conference. The settlement agreement and a failure by plaintiffs counsel
to prosecute the case were given as twin reasons supporting dismissal.
On October 15, 2003, the case was reassigned to the undersigned. On the
same day, the court ordered the parties to appear at a pre-trial
conference on November 3, 2003. By order dated October 27, 2003 the court
granted defense counsel's request for permission to move to dismiss the
action. In the court established a briefing schedule for the motion.
Plaintiff's counsel failed to appear at the November 3, 2003, pre-trial
conference, at which the court set November 14, 2003, as the date by
which defendants' counsel was to serve and file the motion to dismiss. In
a fax dated November 3, 2003, plaintiffs counsel informed the court that
in the light of the court's October 27, 2003, order granting leave to
file a motion to dismiss, he had "assumed the conference would not
proceed as initially scheduled."
A. Summary Judgment
Defendant has moved for summary judgment on the ground that plaintiffs
claims in the instant action are unambiguously waived by that portion of
the settlement agreement that reads "It is understood that this agreement
is in full complete settlement of all outstanding administrative EEO
complaints or appeals, in this or any other forums, filed by the
grievant." Plaintiff argues in response that the settlement does not
apply to the instant action.
A settlement is a contract, that once entered into is binding and
conclusive. Janneh v. GEF Corp., 887 F.2d 432, 436 (2d Cir. 1989), cert.
denied, 498 U.S. 865, 111 S.Ct. 177 (1990), abrogated on other grounds,
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct.
1992(1994). The proper interpretation of a contract is a question of law
for the court. Harris Trust & Sav. Bank v. John Hancock Mut. Life
Ins. Co., 970 F.2d 1138, 1147-48 (2d Cir. 1992); see Walk-In Med. Ctrs.,
Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir. 1987) ("The
determination of whether a contract term is ambiguous is a threshold
question of law for the court."). "Where the intention of the parties is
clearly and unambiguously set forth, effect must be given to the intent
as indicated by the language used." Slatt v. Slatt, 64 N.Y.2d 966, 967,
488 N.Y.S.2d 645, 646, 477 N.E.2d 1099, 1100 (1985), quoted in Olin
Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993).
We disagree with defendants' assertion that the disputed portion of the
settlement agreement unambiguously bars plaintiff from proceeding with
his federal claims, and therefore we deny the summary judgment motion.
The agreement constitutes a settlement of all "outstanding administrative
EEO complaints or appeals." At the time that the settlement was signed,
as now, the claims at issue in the instant action were neither
"administrative EEO complaints" nor "appeals." While it may be true that
plaintiffs instant claims originated as administrative complaints, they
left the administrative sphere when they were included in the federal
judicial complaint. They became judicial claims, pursued through a system
separate from the administrative one, and not one accurately described as
an "appeals" process for the administrative system. Indeed, exhaustion of
administrative remedies is a precondition to the bringing of a Title VII
claim in federal court. See. e.g., Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
Nor does the phrase in this and all other forums contradict the clear
limitation of the agreement's scope to "administrative EEO complaints or
appeals," since the of appeal from an EEC determination takes place in a
non-judicial ""other" forum.*fn1 The court agrees with plaintiff that
the settlement agreement could have been phrased so as to make clear that
it encompassed a settlement of pending judicial, as opposed to merely
administrative, complaints. The court notes that in the district court
case McKoy, described by defense counsel as a "virtually identical case,"
Defs.' Mem. Supp. Summ. J. at 9, and "both controlling and persuasive,"
Defs.' Reply Mem. at 5, the settlement agreement held to bar the
plaintiffs Title VII claim is distinguished by the fact that the
agreement, by its terms, "constitute[d] a full and final settlement of
all issues arising out of the subject matter" rather than simply of
administrative complaints and appeals. McKoy v. Potter, 2002 WL 31028691
at *3 (S.D.N.Y. 2002) (emphasis added).
Finally, the letter sent by Mitchell Sturman to plaintiffs attorney
following the settlement does not change the scope of the agreement.
Despite the fact that Mr. Sturman wrote that "any other complaints
initiated prior to January 28, 2002" were now "closed," he lacked the
authority to expand, by means of this letter, the scope of the agreement
so that it would encompass federal judicial claims. He also, of course,
lacked the authority to "close" any federal actions. It would not have
been unreasonable for plaintiff to interpret that statement, as he claims
he interpreted the agreement, as not including federal judicial
complaints, and thus for him not to respond. Mr. Sturman may have, as
defense counsel states, put plaintiff and his attorney "on notice of the
binding nature of the Settlement," Defs' Mem. Supp. Summ. J. at 10, but
all that was binding was that to which the parties to the agreement had
agreed. Accordingly, the motion for summary judgment is denied.
B. Failure to Prosecute
Defense counsel states that "assuming arguendo that this case were
excluded from the purview of the Settlement, it should still be dismissed
because plaintiff failed to take any action, even to reinstitute this
case, for more than one-and-a-half years since the Settlement." Defs.'
Mem. Supp. Summ. J. at 10.
A federal district court possesses "broad inherent power to protect the
administration of justice by levying sanctions in response to abusive
litigation practices." Penthouse Int'l, Ltd. v. Playboy Enters., Inc.,
663 F.2d 371, 386 (2d Cir. 1981). In addition, pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure, "[f]or failure of the plaintiff to
prosecute . . . a defendant may move for dismissal of an action . . ."
Fed.R.Civ.P. 41(b). However, dismissal is "a harsh remedy, not to be
utilized without a careful weighing of its appropriateness." Dodson v.
Runyon, 86 F.3d 37, 40 (2d Cir. 1996). A district judge "should employ it
only when he is sure of the impotence of lesser sanctions." Chira v.
Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980).
The more a delay was "occasioned by plaintiffs personal obstruction, or
was designed to benefit the plaintiffs strategic interests, the more
suitable the remedy of dismissal. Conversely, the more the delay was
occasioned by the lawyer's disregard of his obligation toward his
client, the more this factor argues in favor of a less drastic sanction
imposed directly on the lawyer." Dodson, 86 F.3d at 40 (commending to
district judges the "sound practice" of imposing sanctions directly on
dilatory lawyers in appropriate cases). The Second Circuit has listed the
following factors as pertinent to the question whether dismissal is an
" the duration of the plaintiffs failures, 
whether plaintiff had received notice that further
delays would result in dismissal,  whether the
defendant is likely to be prejudiced by further
delay,  whether the district judge has taken care
to strike the balance between alleviating the court
calendar congestion and protecting a party's right to
due process and a fair chance to be heard, and 
whether the judge has adequately assessed the efficacy
of lesser sanctions." Id. (quoting Alvarez v. Simmons
Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d
Cir. 1988)) (internal quotations omitted).
We disagree with defendants' claim that the "harsh remedy" of dismissal
is warranted. While this court has grave concerns, as discussed below,
concerning the justifications given by plaintiffs counsel for the
retention of the case on the suspense calendar between January 28, 2002,
and July 18, 2003, we note that it is on this period of the case's
history that our attention is particularly focused, rather than on the
whole three years that have passed since the filing of the complaint.
For, contrary to defense counsel's claim that the filing of the complaint
was "[i]n essence," plaintiffs "first and only step to pursue his rights
in this case," Defs.' Mem. Supp. Summ. J. at 2, plaintiffs counsel's
letter to the court of July 18, 2003, did request that the court
"schedule a conference to set up a discovery schedule," thus evidencing
at least some attempt to move the case forward. In connection with ,
we disagree with defendants' contention that Mr. Sturman's letter to
plaintiffs counsel constituted notice that plaintiffs case would be
dismissed. As previously stated, plaintiff would not have been
unreasonable in interpreting that letter, as he claims he interpreted the
agreement, as not including judicial proceedings. In connection with
, we note that defense counsel's arguments concerning prejudice are
primarily addressed to past, rather than the likelihood of future,
prejudice, and that this factor does not weigh heavily in defendants'
favor. In connection with the balancing test required by , we find
that the fact that this case was, until October 15, 2003, before Judge
Batts, and thus that we were not able to observe firsthand the
progression, or lack of it, of this action, makes us particularly
solicitous of the need to protect plaintiffs "right to due process and a
fair chance to be heard." Finally, we note that sanctions have been
neither threatened nor imposed upon plaintiffs counsel hitherto, and we
decline to assume that the ultimate sanctions is the only appropriate
remedy in this case. Thus, defendants' motion for dismissal of the case
However, the contents of the letters sent to the court by plaintiffs
counsel on December-2002, and July 18, 2003, to justify the case's
presence on the suspense calendar, provoke reason for concern that goes
beyond mere delay. Like defense counsel, we query the use of the term
"recently" in the letter dated July 18, 2003, 40 describe the conclusion
of administrative matters that had in fact been reached eighteen months
earlier. More worryingly, in the letter dated December 10, 2002, roughly
eleven months after the signing of the settlement agreement, plaintiffs
counsel claimed not only that he was awaiting "issuance of the Agency's
Final Decision so that plaintiff can file the additional claims in
federal court," but also that he "expect[ed] to received [sic] the
Agency's Final Decision by January 31, 2003." Given that plaintiff's
counsel was, at the latest, put on notice of the contents of the
settlement agreement by the letter from Mitchell Sturman dated February
14, 2002,*fn2 there is no apparent justification for plaintiffs
counsel's statement that he was awaiting an administrative decision, let
alone for his claimed "[expectation]" that he would receive that decision
by January 31, 2003. For this reason, we hereby ORDER plaintiffs counsel
to show cause, at the conference currently scheduled for January 14,
2004, why, due to the contents of the aforementioned letters to the
court, some sanction "less drastic" than dismissal should not be imposed
"directly on the lawyer." Dodson, 86 F.3d at 40.
For the foregoing reasons, defendants' motion is denied.