The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Linda Thomas ("Thomas"), a former employee of the New York State Department of Transportation (the "DOT") originally brought this action against the DOT and an employee of the DOT pursuant to the Age Discrimination in Employment Act ("ADEA"), and the New York State Human Rights Law, claiming that she was discriminated against by the defendants on the basis of her age. By Decision and Order dated September 9, 2009, I granted the defendants' motion to dismiss the Complaint on grounds that the DOT, as an agency of the State of New York, enjoys absolute immunity from suit under the Eleventh Amendment to the Constitution of the United States for claims brought pursuant to the ADEA, and that individuals may not be held liable under the ADEA. I dismissed plaintiff's state law causes of action on grounds that New York State has not consented to jurisdiction in federal court for claims brought under state law, and because no federal causes of action remained pending before this court. Finally, I granted plaintiff's motion to amend the Complaint to add the Civil Service Employees Association, Inc., (the "CSEA") as a defendant.
The CSEA now moves to dismiss the plaintiff's Amended Complaint on grounds that the claims made against the CSEA are untimely. Plaintiff opposes the defendant's motion, and contends that the claims against the CSEA set forth in the Amended Complaint relate back to the claims set forth against the DOT in the original Complaint. The plaintiff contends that because the claims set forth in the original Complaint would have been timely against the CSEA, the Amended Complaint is also timely.
For the reasons set forth below, I find that the claims against the CSEA in the Amended Complaint do not relate back to the claims made against the DOT in the original Complaint, and I therefore grant defendant's motion to dismiss.
The plaintiff alleges that the CSEA discriminated against her on the basis of her age by failing to adequately represent her in her employment disputes with the New York State Department of Transportation. Prior to bringing a suit for discrimination under the ADEA in Federal Court, a plaintiff must first exhaust her administrative remedies with the Equal Employment Opportunity Commission ("EEOC"). In the instant case, the plaintiff filed two Complaints with the EEOC against the CSEA, and, according to the plaintiff on or about October 17, 2008, received a "right to sue" letter from the EEOC giving her the right to bring an action against the CSEA in Federal Court within 90 days from the date on which she received the letter.*fn1
The plaintiff, however, failed to bring any claim against the CSEA until November 9, 2009, more than one-year after she received her right to sue letter against the CSEA. As a result, unless the claims set forth in the Amended Complaint against the CSEA can be considered to relate back to claims alleged in the original Complaint (which Complaint was actually filed prior to the plaintiff's receipt of her right to sue letter against the CSEA), the claims set forth in the Amended Complaint will be deemed untimely, as filed beyond the 90 day time limit for filing such claims.
Plaintiff argues that the claims set forth in the Amended Complaint are timely because those claims arise out of the same "conduct, transaction or occurrence" that was alleged in the original Complaint. In support of this argument, plaintiff cites Rule 15(c) of the Federal Rules of Civil Procedure which sets forth the rules for considering whether or not a new pleading relates back to an older pleading. Inexplicably, however, plaintiff cites a version of the Rule that has not been in effect since 1991. See Richard v. Reed, 98 F.3d 1338; 1996 WL 556813 at *2 (5th Cir., 1996). The version of Rule 15(c) that applies in this case is the version that was in place on November 9, 2009, the date on which the Amended Complaint was filed.*fn2 This version of Rule 15(c) provides as follows:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons ...