United States District Court, S.D. New York
July 1, 2004.
RUBEN VARGAS, Plaintiff,
BUCHBINDER & WARREN LLC, Defendant.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
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
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
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 jurisdictional,"
Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000), and "is
subject to waiver, estoppel, and equitable tolling." Downey v.
Runyon, 160 F.3d 139, 145 (2d Cir. 1998).
There is a serious question as to whether Vargas' retaliation
claim is reasonably related to his age discrimination claim. The
retaliation claim concerns events that occurred after his
employment had been terminated, specifically, the failure to pay
an arbitration award premised not on an age discrimination claim
but on a claim about a violation of labor laws. See Wilson v.
Fairchild Republic Co., Inc., 143 F.3d 733, 738 (2d Cir. 1998)
("In order for a claim to relate back, it must arise out of the same
conduct, transaction, or occurrence as the claims raised in the
earlier filing" (citation omitted)). Even if Vargas' retaliation
claim were found to be reasonably related to the age
discrimination claim he filed with the DHR in 2000, that earlier
filing was untimely and cannot be used to satisfy the statute of
The Retaliation Complaint is thus deemed filed with the EEOC on
June 26, 2002, the date it was filed with the DHR. The
defendant's conduct at issue here stems from a December 11, 2000
arbitration award. In order for his complaint to be timely,
Vargas would have to allege that he did not become aware of his
employer's retaliatory conduct, that is, its refusal to pay the
December 11, 2000 arbitration award in retaliation for his
November 2000 age discrimination complaint, until August 20,
2001, or 300 days prior to the June 26, 2002 filing.*fn3 It
is unnecessary to decide the precise date by which Vargas must have understood that the
defendant was engaging in retaliatory conduct. Whenever that day
came, it was well before August 20, 2001. Vargas' conclusory
claim that he did not become aware of the retaliatory conduct
until "six to eight months" prior to the date he filed the
Retaliation Complaint, without any explanation or facts to
support such a contention, is insufficient to show that this
action is timely. Accordingly, because it is clear that Vargas
filed the Retaliation Complaint more than 300 days after he
became aware of the allegedly retaliatory conduct, the complaint
is untimely and barred by the statute of limitations.
Vargas incorrectly relies on the theory of equitable estoppel
in support of his claim. Equitable tolling has been applied
"sparingly" to situations where the claimant has "actively
pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been
induced or tricked by his adversary's misconduct into allowing
the filing deadline to pass." Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990) (emphasis supplied). See also
Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d
Cir. 1986) (employer's conduct must be "extraordinary" to justify
applying equitable tolling). Neither of the circumstances
identified in Irwin provides relief to Vargas. He did not file
a timely though defective pleading and he cannot point to any trickery by the defendant that caused his delay in filing
the Retaliation Complaint with the EEOC.*fn4
The defendant's motion to dismiss the remaining claim in this
case as time-barred is granted. The Clerk of Court shall enter
judgment for the defendant and close the case.