United States District Court, S.D. New York
November 8, 2005.
CARLOS E. RUIZ, Plaintiff,
E-J ELECTRIC CO., Defendant.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Carlos E. Ruiz ("Ruiz"), proceeding pro se, brings
this employment discrimination action against E-J Electric
Installation Co. ("E-J"), contending that E-J unlawfully
discriminated against him on the basis of his national origin in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et. seq.*fn1 E-J now moves to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) on the ground that plaintiff's claim is
time-barred because (1) plaintiff failed to file a complaint with
the EEOC within 300 days of the alleged discriminatory conduct;
and (2) plaintiff failed to file this case within 90 days of
receiving a right to sue letter from the EEOC. For the reasons
set forth below, the Court grants the motion, dismissing the case
without prejudice and granting leave to plaintiff to file an
amended complaint within 30 days.
In deciding a motion to dismiss, the Court must "accept as true
the factual allegations in the complaint and draw all inferences
in the plaintiff's favor." Scutti Enterprises v. Park Place
Entertainment Corp., 322 F.3d 211, 214 (2d Cir. 2003). The
following facts are taken from the complaint and are assumed to be true. Plaintiff has worked as a
temporary sound engineer for E-J since 1985.*fn2 Ruiz's last
day of employment with E-J, which has been "on and off as
needed," was May 13, 2005. (Pl. Opp. Memo. at 1). Plaintiff now
claims that as late as 2003, E-J led him to believe that he was a
"strong contender" for various positions, yet failed to hire him
permanently (with the attendant benefits) some twenty-eight
times. (See Pl. Compl. at 3; Charge of Discrimination (EEOC
Form 5); Pl. Opp. Memo. at 1; cf. Pl.'s Letter to the Court,
May 12, 2005 (alleging that E-J bypassed him more than twelve
Reading the complaint liberally, the Court finds three specific
allegations. First, plaintiff alleges that on April 2, 2001 E-J
hired Martin Stumpf instead of plaintiff, despite the fact that
plaintiff had been covering the position given to Stumpf for the
previous two years. (Pl. Opp. Memo. at 2; Def.'s Memo. Supp. Mot.
Dismiss at 2-3). Second, plaintiff alleges that when he again
applied for the position once Stumpf resigned several months
later, his application was rejected, allegedly because E-J
implemented a position-specific hiring freeze. These events
appear to have occurred on or before March, 2002. (Pl. Opp. Memo.
at 2). Finally, plaintiff alleges that he met with a union
representative and the president of E-J on April 4, 2003, at
which time he claims his "rights [were] violat[ed]" by the union
representative's failure to represent his interests and E-J's
hiring practices. (Pl.'s Aff. Supp. Compl.).
On April 29, 2003, plaintiff filed charges against E-J with the
EEOC, alleging continuing discrimination from April 2, 2001
through April 4, 2003. Plaintiff's EEOC claim was acknowledged
received by Ricardo E. Jones, an investigator with the New York
District Office of the EEOC, on May 19, 2004. By letter dated
June 17, 2004, the EEOC communicated to plaintiff that, although
it would not initiate a claim on his behalf, he could do so on
his own within 90 days of receiving the letter. It appears that plaintiff
received this letter on June 21, 2004.*fn3 This action
followed on September 16, 2004, and E-J moved to dismiss on April
A. Legal Standards
Several well-established principles will govern the resolution
of E-J's motion. First, "[a] court may dismiss a complaint
[pursuant to Fed.R.Civ.P. 12(b)(6)] only if it is clear that
no relief could be granted under any set of facts that could be
proved consistent with the allegations." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002) (citation omitted). For this
reason, in considering a 12(b)(6) motion, the court is not to
evaluate the strength of the evidence adduced in support of the
complaint, but "merely to assess the legal feasibility of the
complaint. . . ." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.
1998) (citation omitted); see also Scutti Enters., LLC v. Park
Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003). Second, a
plaintiff who has alleged employment discrimination "need do
nothing more than furnish `fair notice' of her claim and `the
grounds upon which it rests."' Galvez v. N.Y. Mortgage Co.,
2005 U.S. Dist. LEXIS 19053, at *11 (S.D.N.Y. Sept. 1, 2005).
Finally, the complaints of plaintiffs who proceed pro se
"however inartfully pleaded, are held to less stringent standards
than formal pleadings drafted by lawyers and are to be construed
liberally on a motion to dismiss." Oparaji v. New York City
Dep't of Educ., 2005 U.S. Dist. LEXIS 13043, at *15 (E.D.N.Y.
June 14, 2005) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997)). Keeping
those principles in mind, the Court turns to the merits of E-J's
motion. B. Filing Requirements of Title VII Employment Discrimination
Under 42 U.S.C. § 2000e-5(e)(1) and (f)(1), an aggrieved worker
who wishes to bring an employment discrimination action faces two
filing requirements: first, he or she must file a charge with the
EEOC within 300 days of the alleged discriminatory employment
practice, AMTRAK v. Morgan, 536 U.S. 101, 109 (2002); and,
second, if the agency authorizes the aggrieved worker to bring
suit on his or her own behalf, he or she must file an employment
discrimination complaint within 90 days of receiving such
authorization from the EEOC, see Sherlock v. Montefiore Med.
Ctr., 84 F.3d 522, 525 (2d Cir. 1996) ("In order to be timely, a
claim under Title VII or the ADEA must be filed within 90 days of
the claimant's receipt of a right-to-sue letter"). E-J argues
that plaintiff cannot meet either requirement. The Court will
consider them in turn.
C. Has Plaintiff Alleged a Discriminatory Act Occurring within
90 Days of September 16, 2004?
As noted, supra, at note 2, plaintiff alleges that he
received the EEOC's right to sue letter on June 21, 2004, 87
days before he filed the complaint against E-J on September 16,
2004. Accordingly, the Court denies defendant's motion on this
first ground, which leaves just the question of the 300-day
D. Has Plaintiff Alleged a Discriminatory Act Occurring After
July 7, 2002?
Defendant argues that plaintiff's complaint fails to allege any
discriminatory act within 300 days of April 29, 2003, the date on
which he filed his EEOC complaint. The question, then, is whether
plaintiff has alleged any act of discrimination occurring on or
after July 7, 2002. As noted above, reading plaintiff's complaint
liberally, the Court finds that plaintiff has alleged three
instances on which he was unfairly treated: a failure to hire on
April 2, 2001; a failure to hire in March 2002; and a meeting
with E-J's president and a union representative on April 4, 2003. Neither the first nor the second alleged instance of
discrimination occurred on or after July 7, 2002, and for that
reason are time-barred.
The final instance of alleged discrimination is the April 4,
2003 meeting with the president of E-J and a union
representative. Although this event falls within the 300-day
requirement, plaintiff does not allege any fact that, if proven,
would entitle him to relief. Specifically, plaintiff alleges
that: "I believe that my rights have been violating [sic], I have
been victimized by both, Local 1212 by lack of support and
failure to stand on my behalf on the meeting we had with the
president of the company on April 4, 2003. And in all these
years; and E.J. Electric Installations hiring practices based on
bias and deceit [sic]." (Pl.'s Aff. Supp. Compl.) The Supreme
Court held in Swierkiewicz that a complaint need not allege all
the facts necessary to make out a prima facie case of
discrimination under the standard set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), stating that the
essential elements of a prima facie case include allegations "(i)
that he belongs to a racial minority; (ii) that he applied and
was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from
persons of complainant's qualifications. See also Pierce v.
Netzel, 2005 U.S. App. LEXIS 19555 (2d Cir. Sept. 9, 2005).
Rather, a complaint need include only "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. Rule 8. See Swierkiewicz,
411 U.S. at 512.
Nonetheless, the Court cannot find in plaintiff's allegation
regarding the April 4 meeting any basis on which plaintiff would
be entitled to relief. See Moscowitz v. Brown,
850 F. Supp. 1185, 1190 (S.D.N.Y. 1994) ("Despite the liberality of [the
standard for a 12(b)(6) motion dismiss], only the `well-pleaded'
factual allegations will be taken as true. Baldly conclusory
statements that fail to give notice of the basic events of which
the plaintiff complains need not be credited by the court.") (dismissing Title VII claim for failure
to comply with the statutory time requirements) (emphasis added)
(citations omitted). To be sure, plaintiff's statement regarding
the April 4, 2003 meeting would be sufficient if he had alleged
that E-J's president engaged in some sort of discriminatory
conduct at the meeting, such as a refusal to hire or promote to
an identifiable position with respect to which a vacancy existed.
But the only conduct alleged by plaintiff that pertains to the
April 4, 2003 meeting is attributed by plaintiff to a union
representative, not E-J's president.
Plaintiff's complaint must be dismissed because it fails to
identity any discriminatory conduct by E-J at any time on or
after July 2, 2002. Nonetheless, the Court is mindful that
plaintiff filed his complaint pro se, and therefore will grant
leave to file an amended complaint in the event that he has a
basis for alleging actionable discriminatory conduct during the
relevant time period.
For the foregoing reasons, defendant's motion is granted and
the case is dismissed without prejudice and plaintiff is granted
leave to file an amended complaint within 30 days. The pro se
office is available to answer plaintiff's questions, should he
have any, with respect to either this opinion or the prospect of
amending his complaint.
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