United States District Court, E.D. New York
Plaintiff proceeds pro se.
Defendant is represented by Joseph Sileo, McNees Wallace & Nurick LLC, Scranton, PA.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Wagner Guerrero Mercedes ("Mercedes" or "plaintiff'), proceeding pro se, commenced this action on May 31, 2013, against his employer, AVA Pork Products, Inc. ("AVA" or "defendant"), alleging that defendant subjected him to racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII").
Defendant moves to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the following grounds: (1) plaintiffs claim is untimely; and (2) the complaint fails to state a plausible Title VII claim. For the reasons discussed below, defendant's motion to dismiss is granted. Specifically, plaintiff's claim is untimely because plaintiff failed to commence this action within ninety days of receiving a Notice of Right to Sue ("right-to-sue letter") from the Equal Employment Opportunity Commission ("EEOC"). Moreover, even assuming arguendo that plaintiffs complaint was timely, the Court concludes that the complaint fails to state a plausible Title VII claim because it is wholly devoid of any allegation suggesting that plaintiff was subject to discrimination. Thus, the complaint must be dismissed under Rule 12(b)(6).
The following facts are taken from the complaint,  and are not findings of fact by the Court. Instead, the Court will assume the facts in the complaint to be true and, for purposes of the pending motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.
Plaintiff began working for AVA on October 20, 2008. (Pl.'s Resubmission of Facts in English, ECF No. 6.) He signed a contract to work in AVA's meat department, according to which he earned a starting salary of eight dollars per hour, with a twenty-five cent per hour increase every three months ( Id. ) Plaintiff received the salary increase during his first year at AVA, but then the increases stopped. ( Id. ) After a few months without a salary increase, plaintiff complained to AVA, who told him that his contract had expired. ( Id. ) At that point, plaintiff was working more than sixty hours per week. ( Id. )
On January 4, 2012, AVA attempted to force all its employees to sign a document stating that they worked only fifty hours per week. (Id.) Plaintiff did not sign the document, but many of his coworkers did. (Id.)
Sometime in March 2012, plaintiff's union provided him with a "contract ratification sheet" stating that he would receive four checks between May 1, 2012, and January 1, 2013, "as progressive incentive for a total amount of [$]2, 300.00." (Id.) In addition, plaintiff was to receive a salary increase of fifty cents per hour on the anniversary of his start date, plus an additional seventy-five cents per hour for all overtime work. ( Id. ) However, plaintiff did not sign the agreement because he thought he and his coworkers "deserve better." ( Id. )
B. Procedural History
Plaintiff filed a charge of discrimination on June 21, 2010 (Compl. ¶ 9),  and the EEOC issued to plaintiff a right-to-sue letter on February 6, 2013 (Compl. Ex 1). Plaintiff alleges that he received the right-to-sue letter on February 20, 2013. (Compl. ¶ 12.)
Plaintiff filed the complaint in this action on May 31, 2013. Accompanying plaintiff's complaint was an application to proceed in forma pauperis, which the Court granted on July 9, 2013. Defendant filed a motion to dismiss on October 11, 2013. Plaintiff filed his opposition to the motion to dismiss on November 4, 2013. Defendant filed a reply to plaintiff's ...