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VARGAS v. BUCHBINDER & WARREN LLC

January 15, 2004.

RUBEN VARGAS, Plaintiff, -v- BUCHBINDER & WARREN LLC, Defendant


The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

The defendant has moved to dismiss this action brought for violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., on the ground that the plaintiff Ruben Vargas ("Vargas") did not file an administrative complaint with the Equal Employment Opportunity Commission ("EEOC") within the 300 days required by law. For the following reason, the motion is granted in part and denied in part.

  Background

  The following facts are taken from the complaint, the Page 2 amended complaint submitted in opposition to this motion, and other documents submitted by the parties in connection with this motion. The defendant has assumed the truth of the assertions in the complaint for purposes of this motion practice.

  Vargas was born on October 20, 1951. He began his employment with the defendant on April 16, 1990. He worked as a doorman on the night shift, providing security, announcing visitors, handling garbage removal, and performing other tasks. In September 1999, Vargas complained to his union delegate regarding the failure to provide him with a lunch break. On October 5, 1999, the defendant agreed to pay every building employee except Vargas compensation for the failure to provide them with a lunch break. Vargas asserts that the failure to compensate him was due to retaliation against him for being a whistle blower.

  On November 6, 1999, Vargas filed harassment charges against the building manager with his union. On November 16, Vargas requested a transfer to the day shift. The request was denied on the 18th. That same day, Vargas filed a complaint with his union regarding the denial. On November 23, Vargas was given written notice that his employment had been terminated as of November 21.

  On November 23, 1999, Vargas filed a complaint with the National Labor Relations Board ("NLRB") alleging that his firing was in retaliation for grievances he had filed with his union. This claim was apparently denied.

  On November 21, 2000, Vargas filed a complaint with the New Page 3 York State Division of Human Rights ("DHR") complaining of age discrimination in violation of New York State law in connection with his firing on November 23, 1999. This complaint indicated that he had attempted to file it on November 16. There is no indication in the document of any assertion of a violation of federal law.

  On June 26, 2002, DHR issued its ruling that there was no probable cause to believe that the defendant had engaged in age discrimination. The notice advised Vargas that he could appeal the determination by filing a petition within sixty days in state court, but that "a complainant who seeks state judicial review and who receives an adverse decision" may lose his right to proceed subsequently in federal court.

  On June 26, 2002, Vargas filed a second complaint with the DHR, claiming retaliation against him for his act of opposing discrimination. He alleged that on December 11, 2000, an arbitrator had ordered that he be reimbursed for the lunch breaks he had been denied, but that the defendant had refused to date to do so. He asserted that the refusal was in retaliation for his filing of the age discrimination complaint with the DHR on November 21, 2000.

  On February 25, 2003, the DHR denied the second complaint. It 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 Page 4 found no evidence of discrimination. In addition to the notice provided with the June 26 ruling, this ruling also 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. It advised him that the EEOC would generally adopt the action of the DHR.

  On April 29, 2003, the EEOC adopted the DHR finding and issued a right to sue letter. The parties have not submitted any document reflecting when Vargas submitted a complaint to the EEOC.

  On July 22, 2003, Vargas signed a request in this district to proceed in forma pauperis. The application was granted on August 29, 2003. On September 2, 2003, Vargas filed a complaint alleging a violation of the ADEA based on retaliation against him for the complaints he made to his union while he was employed by the defendant and based on the termination of his employment.

  On November 17, the defendant moved to dismiss the complaint for failure to file a timely complaint with the EEOC. In his opposition to the motion, filed on December 2, Vargas has included an amended complaint, which adds a claim of discriminatory retaliation pursuant to Title VII, for the defendant's failure to comply with the December ...


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