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Richard v. New York City Department of Education

United States District Court, E.D. New York

March 31, 2017

PATRICK RICHARD, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge

         Plaintiff Patrick Richard, proceeding pro se, commenced this action on February 25, 2016 against Defendant the New York City Department of Education (the “DOE”). (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on March 7, 2016, alleging claims for failure-to-promote, other discrete acts of discrimination, constructive discharge, hostile work environment and retaliation based on his race, color and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), New York State Human Rights Law (the “NYSHRL”), and New York City Human Rights Law (the “NYCHRL”), as well as state law claims for libel and defamation. (See generally Am. Compl., Docket Entry No. 5.) The Court also construes Plaintiff's allegations to assert a disparate pay claim.[1] Defendant moves to dismiss the Amended Complaint, in part, [2] for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[3] (Def. Mot. to Dismiss (“Def. Mot.”), Docket Entry No. 23; Def. Mem. in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 24.) For the reasons discussed below, the Court grants Defendant's motion in part and denies it in part.

         I. Background

         The facts as alleged in the Amended Complaint are accepted as true for the purposes of deciding this motion. Plaintiff identifies himself as a “black man” and states that he was born in Haiti. (Am. Compl. 13.) He was hired by the DOE in or around December of 1991 as a project manager with the title of “Telecommunications Associate - Level II, ” earning $44, 000 annually. (Id.) Plaintiff has been an “exemplary employee” and “[h]e has not received any discipline or negative reviews, ” except for those that are the subject of his discrimination claim. (Id. at 13.) Plaintiff currently works in the DOE's Division of Instructional and Informational Technology (“DIIT”). (Id. at 11, 16.)

         a. Failure-to-promote allegations - 1992 to 2013

         According to Plaintiff, since 1992, Defendant has repeatedly and consistently denied Plaintiff salary increases and job promotions commensurate with his skills and responsibilities, while white male employees have been promoted above him. (Id. at 15-21.) In 1992, despite the fact that he had taken on responsibilities in database design and administration that others had not, Defendant did not give Plaintiff the raise that “white project managers” received. (Id. at 15.) In 1993, Defendant filled an open supervisory position with a white candidate, Gerard Drazba, without posting the position internally or allowing Plaintiff the opportunity to apply. (Id.) In 1995, Plaintiff “could have . . . been pulled to serve as a Telecommunications Specialist like all the white coworkers, ” but he was not given that title. (Id.) When Defendant eventually gave Plaintiff the Telecommunications Specialist title, he was not awarded the associated pay given to white employees with the same title and “no degrees.” (Id. at 17.) Plaintiff approached “director” Miriam Delaney with his concern that he was not initially promoted “like all the white coworkers, ” and Delaney “seems to have never forgiven him for daring to ask.” (Id.)

         In 1998, Defendant did not give Plaintiff a promotion to senior project manager, and instead gave the job to a white employee, Mark Spencer, who had “significantly less education[] and technical background” than Plaintiff. (Id. at 18.) As a result of the promotion, Spencer became Plaintiff's supervisor. (Id. at 18.) Similarly, in 2003, after Defendant promoted Spencer to “director, ” Jerry Campanella, a white man “from the outside, ” was promoted to Spencer's former position as senior project manager. (Id. at 19.) Defendant did not give Plaintiff the opportunity to apply for the senior project manager position, even though Campanella was “significantly less qualified” for the position than Plaintiff was. (Id.) Plaintiff was “passed over” again in 2007, when the position for director of maintenance and support within Plaintiff's unit became available. (Id.) Defendant instead gave the position to an employee who had joined the unit in or around 2001. (Id.)

         In or around July of 2013, Plaintiff arranged a meeting with Jeanine Anaya, Director of Human Resources, and Plaintiff's two white supervisors, Spencer and Campanella. (Id. at 20.) Plaintiff “provided evidence that he had been passed over for positions which he should have been given since as early as 1994” and “demonstrate[d] that he was being compensated at a rate that was far below what someone with his level of education should be paid.” (Id.) At the close of the meeting, Anaya told Plaintiff that “they would ‘see what could be done.'” (Id.) Minutes later, Anaya told Plaintiff that there would be no further meetings “relating to his request for promotion or advancement.” (Id.) Spencer also emailed Plaintiff following the meeting stating that nothing could be done “about an injustice that happened in 1994.” (Id.)

         In September of 2013, Plaintiff “began applying to every open position which offered the opportunity for advancement, ” including business consultant position, a technical project manager position, and a senior director of information technology (“IT”) procurement position. (Id. at 20-21.) Defendant told Plaintiff not to apply for the business consultant position, that the technical project manager position was unavailable, and did not respond to his application for the director of IT procurement position. (Id. at 21.)

         b. Failure-to-promote allegations - 2014

         On May 22, 2014, Plaintiff applied for a senior project manager position, which was “essentially the same [position] as what [Plaintiff] was already performing.” (Id. at 22.) Defendant told Plaintiff that the position was “more technical” and therefore not suited for him. (Id.) Plaintiff wrote to Anaya to ask why he was not given the senior project manager position, but he did not receive a response. (Id. at 24.) On September 10, 2014, Plaintiff applied for a senior business systems analyst position and, despite receiving a telephone interview, he was “never seriously considered for” the position. (Id. at 22-23.) On September 22, 2014, Plaintiff applied for a “Borough Director, Space Planning” position but received no response. (Id. at 23.)

         On October 15, 2014, Plaintiff applied for a business IT specialist position, for which Plaintiff was qualified, but Defendant never interviewed him. (Id.) Human resources sent an email with a hyperlink to the application for the business IT specialist position to “every employee at” the DOE's DIIT with the purpose of personally harassing Plaintiff and encouraging the DIIT employees to apply to the position. (Id.) On October 15, 2014, Plaintiff also applied for a senior program manager position. (Id.) Plaintiff was interviewed but later learned that he was not selected for the position. (Id.) The position was subsequently re-advertised. (Id. at 23.)

         On December 21, 2014, Plaintiff applied for positions as a deputy chief and chief technology officer, but did not receive a response to either of his applications. (Id. at 24.) According to Plaintiff, he was qualified for each of these positions, and Defendant did not select him because of his “race and national origin.” (Id.) On January 19, 2015, Plaintiff emailed Ms. Vazquez, the executive director of systems and improvement, and told her that his race and national origin were the “underlying reasons for his not being considered” for the various positions. (Id.)

         c. Other allegations

         Plaintiff makes several other allegations in support of his claims. According to Plaintiff, he has “never received a merit raise” and has “only received raises due to his longevity in employment.” (Id. at 13.)

         In 1994, the DOE's Bureau of Telecommunications (“BOT”) merged with DIIT. (Id. at 16.) Prior to the merger, the BOT predominantly consisted of black employees and the DIIT predominantly consisted of white employees. (Id.) At the time of the merger, Plaintiff worked in the BOT. (Id.) After the merger, the former DIIT employees, received “significantly higher” salaries than the former BOT employees, notwithstanding that everyone had “similar titles and positions” and “performed substantially similar work.” (Id.) The former BOT employees “were never informed of this discrepancy and were not provided salary increase[s].” (Id.) The pay discrepancy remains the same today. (Id.)

         According to Plaintiff, he was treated unfairly by a supervisor, Rick Scott, who “cursed him” in front of associates whom Plaintiff managed. (Id. at 17.) Scott later apologized to Plaintiff in a letter copying Delaney.[4] (Id. at 17.) Plaintiff complained about Scott in a September 5, 1997 meeting with Scott and Delaney. (Id. at 17-18.) Delaney told Plaintiff, “[w]e don't have to treat you fairly. This idea of fairness is your own opinion.” (Id. at 18.) This meeting led to a labor-management meeting coordinated by Plaintiff's union representative. (Id.) Plaintiff alleges that “Master HR Strategist” Robert Satriano “mask[ed] the truth, ” “played everyone, ” and issued an opinion that “condoned his officers' conduct.” (Id.) Plaintiff also appears to allege that on an unidentified occasion, Scott said “[o]ne of us has to leave, and it's not going to be me. So . . . I can help you get a job in another division, if you want.” (Id. at 9.)

         Around 1998, Plaintiff asked to review his personnel files and found “many documents that portrayed him negatively, ” and “did not bear his signature.”[5] (Id. at 18-19.) In 2000, Plaintiff obtained a Master's Degree in educational technology, but Defendant did not compensate him “for this achievement.” (Id. at 19.) Defendant also did not compensate Plaintiff after he obtained a certification in “A computer repair” in 2011. (Id. at 20.) Plaintiff has been “repeatedly harassed” for constantly having to explain his “heavy accent” and his “never-to-be-good-enough” verbal and writing skills. (Id. at 6.)

         On March 18, 2014, Plaintiff was denied access to a DOE school and a “vendor” was “rude” and “hostile” toward him when he questioned the denial of access. (Id. at 21.) Plaintiff reported the incident to his supervisor Campanella approximately two days later, on or about March 20, 2014. (Id.) Plaintiff explained to Campanella that vendors “do not respect him because of how the office as a whole treats him and because he has not been promoted despite his excellent work.” (Id.) Plaintiff alleges that “[t]here was a clear implication that [he] was referencing his race and national origin.” (Id.) Campanella “reacted by asking if [Plaintiff] wanted his job, ” and Plaintiff explained to Campanella that Campanella did not understand that Plaintiff had been “blacklisted and treated disparately within the office.” (Id.) Campanella attempted to end the conversation and leave the room and “began shouting at [Plaintiff] that he was not going to talk to him anymore while wagging his fingers in [Plaintiff's] face.” (Id. at 21- 22.) Plaintiff was embarrassed by this incident, which his coworkers witnessed. (Id. at 22.) Following the incident with Campanella, on March 25, 2014, Plaintiff met with Anaya, the HR representative, and she “refused to discuss issues relating to [Plaintiff's] continued attempts to be treated fairly.” (Id.)

         On April 22, 2014, Defendant gave Plaintiff a “counseling letter” in “retaliat[ion] against him for [making] complaints” that included “a fabricated allegation that [Plaintiff] had become angry” and that Campanella “was frightened for his safety, ” (the “April 22 Letter”).[6] (Id.) Plaintiff alleges that this accusation “directly relates to [Plaintiff's] race” because Anaya “chose to use the stereotype of an angry and violent Black man to avoid facing [Plaintiff's] valid concerns about being treated disparately in the workplace” and that he is “unable to ascertain what he did to occasion this letter.” (Id.) The letter was the “first step in constructively disciplin[ing] an employee, ” and as a result, Defendant placed Plaintiff on “probation - subject to dismissal.” (Id.)

         Plaintiff alleges several other incidents of discrimination. According to Plaintiff, Campanella harassed Plaintiff on May 2, 2014, by removing two computers Plaintiff had stored under his desk. (Id.) In or around October 2014, Campanella asked a coworker, in reference to another black DOE employee, “‘why this Black guy' was making so much money.” (Id. at 23.) On November 20, 2014, Plaintiff had a meeting with Anaya, Spencer, Vazquez and his union representative, Dana Tilghman, who Plaintiff states “raised the issues related to unfair treatment.” (Id.) The meeting concluded “without [Plaintiff] having the opportunity to voice his concerns.” (Id. at 24.) In or around February 1, 2015, Plaintiff was not invited to two staff meetings.[7] (Id. at 7, 33.) On April 16, 2015, Tom Kambouras, the Chief Technology Officer, labeled Plaintiff a “visibly angry” man whose “behavior was unprofessional and offensive.” (Id. at 7.) Plaintiff alleges that Kambouras “promulgated this narrative to all his deputies - three layers down in the hierarchy of the Division.” (Id.)

         Plaintiff made two formal employment complaints. Plaintiff alleges in his opposition to the motion to dismiss that he filed a formal complaint with the New York State Office of Equal Opportunity (“OEO”) on January 2, 2014 and that he was retaliated against three months later in March or April of 2014, when he received the first “disciplinary notice” of his career. (Pl. Opp'n 6, 12-13, 19, 63-64.) On January 13, 2015, Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”). (Id. at 46-52.) Plaintiff filed an amendment to his charge on February 20, 2015. (Id. at 35-45.) On December 16, 2015, the EEOC issued Plaintiff a right-to-sue letter. (Id. at 54.)

         II. Discussion

         a. Standards of review

         i. Motion to dismiss

         In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Concord Assoc's, L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

         In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)); see also Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding that courts must liberally construe papers submitted by pro se litigants “to make the strongest arguments they suggest”); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).

         ii. Employment discrimination

         In analyzing whether a plaintiff has sufficiently alleged an employment discrimination claim, the Court must consider the pleading standard discussed above and the three-stage, burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Littlejohn v. City of New York, 795 F.3d 297, 307-08 (2d Cir. 2015) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)) (discussing burden-shifting); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing Texas Dep't of Cty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981)). Under that framework, a plaintiff must first establish a prima facie case of discrimination. St. Mary's Honor Ctr., 509 U.S. at 506; see also Campbell v. N.Y.C. Transit Auth., 662 F. App'x 571, 59 (2d Cir. 2016); Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014); Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App'x 9, 11 (2d Cir. 2013). A plaintiff's burden at this stage is “minimal.” Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (quoting St. Mary's Honor Ctr., 509 U.S. at 506). If a plaintiff meets her burden at this stage, a “temporary presumption” of discrimination arises, and the burden shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the challenged conduct. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn, 795 F.3d at 307, 311). If the defendant-employer articulates such a reason, the burden shifts back to the plaintiff-employee to show that the defendant-employer's reason was pretext. Id. at 83.

         At the pleading stage, a plaintiff does not need to prove discrimination or even allege facts establishing every element of the McDonnell Douglas prima facie case, but the facts alleged must give “plausible support to the reduced requirements” of the prima facie case. Littlejohn, 795 F.3d at 311; see Doe v. Columbia Univ., 831 F.3d 46, 55 (2d Cir. 2016) (discussing McDonnell Douglas burden at the pleading stage in the context of Title VII cases); Dawson v. N.Y.C. Transit Auth., 624 F. App'x 763, 767 (2d Cir. 2015); Vega, 801 F.3d at 84; Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006) (“[T]he requirements for establishing a prima facie case under McDonnell Douglas [do not] apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.” (second alteration in original) (quoting Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002))). Thus, a plaintiff need only plead facts sufficient to give “plausible support” to the plaintiff's “minimal” initial burden, which is governed by the statute under which she brings her claims. Vega, 801 F.3d at 84 (quoting Littlejohn, 795 F.3d at 307, 312); see also Doe, 831 F.3d at 56.

         b. Title VII claims

         Plaintiff asserts Title VII claims for failure to promote, other discrete acts of discrimination, disparate pay, constructive discharge, hostile work environment and retaliation. The Court first considers whether Plaintiff's pre-March 19, 2014 discrimination claims are time-barred.

         i. Plaintiff's pre-March 19, 2014 discrimination claims are time-barred

         Before filing a Title VII action in federal court, a plaintiff must timely file charges of employment discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Patterson v. Cty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004); see also Staten v. City of New York, 653 F. App'x 78, 80 (2d Cir. 2016) (noting that prior to filing a Title VII claim in a New York federal court, “[a] Title VII plaintiff must file a charge with the EEOC within 300 days ‘after the alleged unlawful employment practice occurred.'” (citing 42 U.S.C. § 2000e-5(e)(1))); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010) (citing 42 U.S.C. § 2000e-5(e)(1)); Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (“Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency.”). In New York, a federal employment discrimination claim is time-barred unless the plaintiff first files an EEOC charge within 300 days of the alleged discrimination. Vega, 801 F.3d at 79 (quoting 42 U.S.C. § 2000e-5(e)(1)); McGullam, 609 F.3d at 75. This requirement is analogous to a statute of limitations. Vega, 801 F.3d at 79; Patterson, 375 F.3d at 220 (dismissing as untimely claims based on conduct that occurred more than 300 days prior to the filing of EEOC charge).

         The statute of limitations may be extended under the continuing violation exception, equitable tolling, equitable estoppel or waiver. Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 385 (2d Cir. 2015) (“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that . . . is subject to waiver, estoppel, and equitable tolling.” (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))); Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996) (“[T]he statutory requirement for filing is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable tolling.” (citation omitted)).

         Here, Plaintiff filed his EEOC charge on January 13, 2015, (Am. Compl. 4), making March 19, 2014 the earliest date Plaintiff could allege conduct in violation of Title VII. Accordingly, Plaintiff's Title VII discrimination claims based on acts occurring prior to March 19, 2014 are time-barred.[8] See Patterson, 375 F.3d at 220. Plaintiff argues that his pre-March 19, 2014 claims are not time barred because of the continuing violation exception, equitable tolling, equitable estoppel and waiver. (Pl. Opp'n 13-16.)[9] The Court addresses each argument below.

         1. Continuing violation exception

         Plaintiff argues that the Amended Complaint shows: “(1) the existence of serial and systemic continuing series of violations, and (2) the continuation of the violation into the limitations period.” (Pl. Opp'n 15.) Defendant argues that Plaintiff's failure-to-promote claims are based on discrete acts that do not fall within the continuing violation exception. (Def. Mem. 3-4.)

         Under the continuing violation exception, if a plaintiff files a timely EEOC charge “as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)). The exception, however, presumes that a plaintiff challenged at least one act related to the allegedly discriminatory policy within the 300-day limitations period. See Patterson, 375 F.3d at 220 (“To bring a claim within the continuing violation exception, a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitations period.”); Bonner v. Guccione, 178 F.3d 581, 584 (2d Cir. 1999) (finding that conduct outside the 300-day time period is actionable “only if [the plaintiff] could demonstrate that she was subject to a continuous policy and practice of discrimination, and that one act in furtherance of the policy and practice fell within the 300-day period” (citing Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978)); Predun v. Shoreham-Wading River Sch. Dist., 489 F.Supp.2d 223, 228 (E.D.N.Y. 2007) (“Essential to application of the continuing violations theory is the allegation of at least one discrete act of discrimination within the 300 day period.”).

         However, the continuing violation doctrine will not apply to “discrete acts” of discrimination, even if they are “related to acts alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Chin, 685 F.3d at 155-57 (discussing Morgan). Such discrete acts include termination, disparate disciplining, negative performance evaluations and denial of promotions. See Morgan, 536 U.S. at 114; Valtchev v. City of New York, 400 F. App'x 586, 589 (2d Cir. 2010) (affirming the district court's finding that the plaintiff's negative evaluations and disciplinary proceedings were discrete acts that did not trigger the continuing violation exception); Pietri, 936 F.Supp.2d at 134 (explaining that denial of promotions, disparate disciplinary action and denial of transfer opportunities “are all discrete acts of discrimination and each incident ‘constitutes a separate actionable unlawful employment practice'” (additional internal quotation marks omitted) (citing Morgan, 536 U.S. at 114)). If these discrete acts “fall outside the limitations period, [they] cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period.” Chin, 685 F.3d at 157.

         Here, Plaintiff's untimely failure-to-promote allegations are not saved by the continuing violation doctrine because it is well-established that failure to promote is a discrete act. See Chin, 685 F.3d at 157 (“Discrete acts [such as termination, failure to promote, denial of transfer, or refusal to hire], which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period.”).

         Thus, Plaintiff's untimely claims do not fall within the continuing violation exception.

         2. Equitable tolling, equitable estoppel and waiver

         Plaintiff also argues that he is entitled to waiver, equitable estoppel and equitable tolling. (Pl. Opp'n 15-16.)

         Plaintiff argues that his claims are timely under the doctrines of equitable tolling, equitable estoppel and waiver because: (1) his union “misled [him] and deprived [him] of sound advice” by making a “passing mention” that the union would file a grievance even though the union instead gave him the “run-around” and later declined to file the grievance, explaining that they do not handle EEOC cases, (Pl. Opp'n 15-16);[10] and (2) “Defendant's malfeasance caused [Plaintiff] so much stress that [it] affected his family life” and he also suffered “situational depression.” (Pl. Opp'n 15.) Because ...


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