Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 1, 2004.

RUBEN VARGAS, Plaintiff,

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


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. § 621 et 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.


  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.*fn1 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.

  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.*fn2 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.

  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.


  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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.