The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiffs commenced this action on September 10, 2004, and thereafter filed an Amended Compliant and a Second Amended Complaint. Plaintiffs are Black males who are, or were, employees of Defendant Niagara Mohawk Power Corporation ("Niagara Mohawk") and members of Defendant International Brotherhood of Electrical Workers, AFL-CIO, Local 97 ("IBEW").
In their Second Amended Complaint, Plaintiffs allege that Niagara Mohawk discriminated against them in their employment based on their race and that IBEW declined to pursue their complaints because of their race, all in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e et seq. Presently before this Court are IBEW's Motion for Summary Judgment (Docket No. 35) and Niagara Mohawk's Motion for Summary Judgment (Docket No. 35), seeking dismissal of the Second Amended Complaint in its entirety.*fn1 For the following reasons, both IBEW's and Niagara Mohawk's motions are granted.
When Plaintiffs filed their Complaint with the Court Clerk for the United States District Court for the Western District of New York, they attached a Dismissal and Notice of Suit Rights issued to Plaintiff Earl Daniels by the Equal Employment Opportunity Commission ("EEOC"). On October 12, 2004, Judge Larimer issued a Decision and Order finding, among other deficiencies, that no Plaintiff other than Daniels had set forth any allegation or evidence indicating that he had filed a charge of discrimination with the EEOC against Defendants and received from that agency a Notice of Suit Rights prior to commencing this action. The Plaintiffs, except for Daniels, were directed to file their EEOC Notices by October 25, 2004. (Docket No. 3.)
Plaintiffs Seals, Stitt, McAdory and Hayes each then filed a charge with the EEOC and immediately requested the issuance of a Notice of Suit Rights. They each filed their Notices by the Court's deadline. (Docket Nos. 5-8.) On March 11, 2005, Plaintiffs filed their Second Amended Complaint with copies of each of their Notices attached. (Docket No. 14.)
Defendants filed their respective motions for summary judgment on June 14, 2006.
Niagara Mohawk argues that each Plaintiff failed to timely file an EEOC charge, no Plaintiff can demonstrate differential treatment based on race, Daniels cannot establish a prima facie case of discrimination, no Plaintiff has identified an actionable adverse employment action, and no Plaintiff satisfied the statutory prerequisites to suit because each of their EEOC charges was pending before the EEOC for less than 180 days. IBEW argues that each Plaintiff failed to timely file an EEOC charge, except for any claim by Daniels relating to conduct occurring between July 11, 2003 and September 18, 2003, and no Plaintiff has established a prima facie claim of discrimination. The motions were taken under advisement without oral argument.
Defendants first argue that all or most of the Plaintiffs' allegations are time-barred. To maintain a discrimination action under 42 U.S.C. §2000e-5, a plaintiff must file a timely charge with the EEOC or the equivalent state agency, receive from that agency a right to sue letter, and commence an action within 90 days after receipt of that letter. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). In New York state, where state and local agencies have the authority to investigate claims of discrimination, an administrative charge must be filed within 300 days of the alleged unlawful conduct. Forsyth v. Federation Employment and Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005) (citing 42 U.S.C. § 2000e-5(e)(1)).
The "filing [of] a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed. 2d 234 (1982). Nevertheless, a plaintiff bears a heavy burden in establishing that equitable principles should permit the procedural requirements in question to be bypassed. Alston v. City of New York, 03-CV-0086, 2006 U.S. Dist. LEXIS 67882, at *3-4 (E.D.N.Y. Sept. 21, 2006) (where plaintiff failed to file timely administrative charge prior to commencing suit and did not address that failure in opposition to motion, there was no basis to bypass the statutory prerequisite). As the Supreme Court recently reconfirmed with regard to the timely filing requirements, "'strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
In calculating the procedural limitation periods, discrete acts of discrimination or retaliation are deemed to have occurred on the date that they happened. Therefore, a party must file an EEOC charge within 300 days after the complained of act or lose the ability to recover for it. Morgan, 536 U.S. at 108. Discrete acts generally are easy to identify and include such things as termination, failure to promote, denial of transfer or refusal to hire. Id. at 114.
Plaintiff Daniels filed an EEOC charge against Niagara Mohawk and IBEW on May 7, 2004. Daniels' charge is timely to the extent he points to discrimination occurring on and after July 12, 2003. (Rooney Affirm. Ex. N.) In his charge, he alleges that, because of his race, Niagara Mohawk passed him over for a promotions or upgrades on numerous occasions, "most recently on or about September 18, 2003," and IBEW denied him proper representation in connection with those incidents. His charge includes a timely allegation as to each Defendant.
Defendant Seals filed two EEOC charges on October 12, 2003, one against Niagara Mohawk (Rooney Aff. Ex. H), and one against IBEW (Long Aff. Ex. B). The charges are untimely as to incidents of discrimination occurring prior to December 17, 2003.
Seals alleges that Niagara Mohawk discriminated against him based on his race when it involuntarily transferred him to a different department in September 2003. His charge against IBEW recites the same incident, and alleges that he "repeatedly complained to the union, to no avail."*fn2
There are no timely allegations against Niagara Mohawk. However, Seals' allegation that he repeatedly sought assistance from IBEW in connection with the September 2003 transfer allows for the possibility that at least one such request occurred on or after December 17, 2003. ...