The opinion of the court was delivered by: George B. Daniels, District Judge
MEMORANDUM DECISION AND ORDER
Pro se plaintiff Ryan Wallace brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, against Seacrest Linen and its owners, Anthony Pratt and Stanley Olan ("employer defendants") and UNITE*fn1 , a labor union and a member of the American Federation of Labor--Congress of Industrial Organizations Central Labor Council (AFL-CIO, CLC) ("union defendant"). Construed liberally, plaintiff's claims also suggest an action against union defendant for breach of the duty of fair representation.
Plaintiff filed his original complaint alleging racial discrimination. The defendants filed answers to that complaint. Thereafter, the court's Pro Se Office received an "amended complaint" in which plaintiff recounted substantially the same events as in his original complaint but changed the basis of his claim, abandoning Title VII and instead claiming violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112-12117.
Federal Rules allow a party to amend its pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). Afterward, a party may amend its pleading "only by leave of court or by written consent of the adverse party." Id. In making his submission after the filing of responsive pleadings, plaintiff sought neither consent from defendants nor leave from the court. Because he is proceeding pro se, however, this court will regard his submission as a proper motion to amend. This is consistent with the federal courts' longstanding practice of holding pro se complaints to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Federal Rules provide that leave to amend "shall be freely given when justice so requires" Fed. R. Civ. P. 15(a), but a district court may deny leave where it is apparent that an amendment will be futile. Forman v. Davis, 371 U.S. 178, 182 (1962); Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002). Such is the case here.
The ADA prohibits an employer or labor organization from discriminating against a qualified individual with regard to advancement, discharge and other terms, conditions and privileges of employment because of that person's disability. 42 U.S.C. § 12111-12. The ADEA prohibits an employer or labor organization from discriminating against any individual because of that individual's age. 29 U.S.C. § 623. As a precondition to filing a private civil action, a plaintiff must file a charge with the Equal Employment Opportunities Commission (EEOC) under the provisions of both the ADA, 42 U.S.C. § 12117, 42 U.S.C. §§ 2000e-4, 5; Cooney v. Consol. Edison, 220 F. Supp. 2d 241 (S.D.N.Y. 2002), and the ADEA, 29 U.S.C. § 626(d); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d. Cir. 1993); Hawana v. City of N.Y., 230 F. Supp. 2d 518, 525 (S.D.N.Y. 2002). This requirement allows the EEOC to investigate and mediate discrimination claims, seeking remedial action and conciliation between parties. See Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985).Judicial relief generally cannot be sought for claims that are not listed in the charge brought to the EEOC.
The Second Circuit has recognized an exception where claims are "sufficiently related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action." Butts v. City of N.Y. Dep't of Hous., 990 F.2d 1397, 1402 (2d Cir. 1993) (superceded on other grounds). This condition is met when the conduct in the civil complaint would fall within the scope of the investigation that would reasonably grow out of the EEOC charge of discrimination. Id.; see also Stewart, 762 F.2d at 198; Chojar v. Levitt, 773 F. Supp. 645, 651 (S.D.N.Y. 1991). Plaintiff's EEOC charge alleged discrimination based on race. His amended complaint alleged discrimination based on age and disability. These allegations are not reasonably related. See Sank v. City Univ. of N.Y., No. 94 Civ. 02531995, 1995 U.S. Dist. LEXIS 7021 (S.D.N.Y. May 24, 1995) (finding the plaintiff's civil claims of disability and religious discrimination were not reasonably related to prior EEOC charges of race and sex discrimination); see also Dennis v. Pan Am. World Airways, 746 F. Supp. 288, 291 (E.D.N.Y. 1990) (finding age discrimination claim not reasonably related to race discrimination).
This court makes its determination mindful that, where a pro se plaintiff brings charges to the EEOC, the proper focus of the court's inquiry is not on the formal titles of the charges but on the factual allegations that support them. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003); see also Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y. 1998) ("[I]t is the substance of the charge and not its label that controls."). Here, plaintiff has not shown any record of factual allegations brought before the EEOC that would have prompted an investigation into age or disability discrimination or prompted attempts at mediation, remedial action or conciliation relating to those issues at his workplace. Since plaintiff has failed to exhaust his administrative remedies with respect to the ADA and ADEA, any claims under those statutes are procedurally barred, and it would be futile for him to amend his complaint to include them. Therefore, plaintiff's motion to amend his complaint is denied.
This court will consider only plaintiff's original complaint, alleging racial discrimination and a breach of the union's duty of fair representation. Employer and union defendants move for summary judgment and have so notified plaintiff as to these claims, as required by Local Civil Rule 56.2 (prescribing specific language for explaining to pro se non-movants the meaning of summary judgment and the potential consequences of failing to respond). Plaintiff has not filed an opposition to summary judgment. Union and employer defendants' motions for summary judgment are granted.
Plaintiff, an African American man, was hired as a "helper" by Seacrest Linen in 1999. Helpers assist Seacrest truck drivers in picking up and delivering linens for customers. At times during his employment, plaintiff also functioned as a driver. (Pratt Aff. ¶ 3, July 26, 2005). On one of those occasions, in January 2001, plaintiff alleges that he received a ticket because the company truck that he was driving did not have an insurance card. (Compl. narrative 1). Plaintiff claims that he turned the ticket in to the office manager but that the company failed to pay the ticket, resulting in the suspension of plaintiff's driver's license and in his arrest in January 2002, when he claims that he spent a day in jail. (Compl. narrative 2). He alleges that his employer then demoted him to helper. (Compl. narrative 2). At unspecified times, plaintiff alleges that he was required, under threat of discharge, to drive a truck requiring a Class-A driver's license, which he did not possess. (Compl. narrative 1).
On August 6, 2002, plaintiff was discharged for failing to come to work without calling in. Plaintiff claims that he had undergone surgery and had been on sick leave. (Compl. narrative 2). Plaintiff's union represented him in a grievance proceeding, claiming that his discharge was without just cause and was a violation of the FMLA because his employer did not advise him of his rights as required under that law. The grievance was submitted to arbitration on February 11, 2003. In an award letter dated February 18, 2003, the arbitrator found that plaintiff frequently was absent or late and frequently failed to call in. The arbitrator further found that plaintiff failed to comply with the company requirement that he provide a doctor's note to document an illness-related absence of two or more days' duration. Therefore the arbitrator found just cause for plaintiff's termination. Seacrest Linen v. Laundry, Dry Cleaning & Allied Workers Joint Bd., UNITE, (2003) (Gross, Arb.) ("Seacrest Linen"). However, the arbitrator also found that employer defendants had condoned plaintiff's behavior by failing to take any disciplinary steps despite repeatedly warning that they would take such steps. The arbitrator found termination too harsh a remedy for plaintiff's repetition of the same conduct. The arbitrator converted plaintiff's termination to suspension without back pay and concluded with a "final warning that a further similar infraction can lead to immediate discipline including discharge." Id.
Under the terms of the arbitration, plaintiff returned to work on Monday, February 24, 2003, and alleges that he completed his former route without incident. He claims, however, that he was warned that day by the union shop steward that his supervisors planned to pair him on the following day with a driver "nobody gets along with," against whom he had complained and filed grievances in the past. Plaintiff claims his supervisors denied his request to be assigned to a different driver. (Compl. narrative 2-3). The next day, plaintiff and the driver were on their route when plaintiff alleges that the driver yelled at him and ordered him around (Compl. narrative 4). This led to an argument between them, which plaintiff thought would become a physical confrontation. (Wallace Dep. 11:12-13, April 28, 2005) ("Wallace Dep."). Plaintiff alleges that he called his supervisor to report the argument and "[l]et him know what my action [i.e. leaving the route and going to the union] was going to be. He didn't tell me I was going to be terminated or I cannot work the next day or anything like that. Just said okay." (Wallace Dep. 14:15-17). For the following three days, plaintiff claims that he punched in at work but was told that he could not work until he heard from the union. (Compl. narrative 4). Employer defendants claim that, during this period, plaintiff was on a three-day suspension beginning on February 26, 2003 because on February 25th he "left the route in Manhattan without permission from the company and in addition insulted and threatened the driver." (Employee Warning Notice). Following this suspension, employer defendant alleges that plaintiff again walked off the job, prompting his termination. (Pratt Aff. ¶ 6).
Plaintiff took separate actions against the union and the company. On March 25, 2003, he filed a charge with the National Labor Relations Board (NLRB) against Amalgamated Services & Allied Industries Joint Board, UNITE, AFL-CIO. He alleged that for the previous six months, the union had failed and refused to represent him properly regarding his grievances against employer defendant for reasons that were "arbitrary, capricious and invidious." On May 13, 2003, the NLRB Region 29 office in Brooklyn ...