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Hunt v. Con Edison Co. N.Y.C.

United States District Court, E.D. New York

December 29, 2017

ERIC C. HUNT, Plaintiff,
CON EDISON CO. N.Y.C., Defendant.


          MARGO K. BRODIE, United States District Judge:

         Plaintiff Eric Hunt, proceeding pro se, commenced the above-captioned action on February 8, 2016, against Defendant Con Edison Co. N.Y.C. (“Con Edison”).[1] On August 22, 2016, Plaintiff filed an Amended Complaint asserting claims of discrimination, failure to promote and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), seeking injunctive relief and damages. (Am. Compl. 1, 3, 9, Docket Entry No. 8-1.)[2] Defendant moves to dismiss the Amended Complaint for, among other reasons, failure to state a claim and Plaintiff's inaccurate statement of poverty, pursuant to Title 28 U.S.C. § 1915. (Def. Mot. to Dismiss (“Def. Mot.”), Docket Entry No. 19; Def. Mem. in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 19-3.) Plaintiff has not opposed the motion to dismiss. For the reasons set forth below, the Court grants Defendant's motion to dismiss in part and denies it in part.

         I. Background

         The following facts are taken from the Amended Complaint and are accepted as true for the purposes of deciding this motion.

         Plaintiff has been employed by Con Edison since 1994. (Am. Compl. 6.) Plaintiff started his career at Con Edison as a “helper” and worked his way up to become a lead mechanic. (Id.) Plaintiff identifies as black and alleges that Con Edison has engaged in systemic discriminatory practices against him and other employees who are “persons of color” and of “minority descent.” (Id. at 8.) Plaintiff specifically alleges claims for failure to promote him to a management position, unequal terms and conditions of employment, and retaliation. (Id. at 4.)

         In 2005, Plaintiff submitted a complaint to Equal Employment Opportunity Affairs (“EEOA”), Con Edison's internal equal employment review board, alleging eleven instances of mistreatment due to “racial bias.”[3] (Id. at 7.) EEOA did not address the allegations. (Id.)

         On February 8, 2012, Plaintiff submitted a complaint to the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a right to sue letter on May 12, 2015, which Plaintiff did not receive until December 9, 2015. Plaintiff filed this action in February of 2016.

         a. Failure to promote

          Plaintiff alleges that Con Edison failed to promote him to a management position due to racial bias. (Id. at 8.) In the past four years, Plaintiff trained ten of the eleven mechanics who have been promoted to management positions, but Plaintiff has been overlooked for a promotion. (Id. at 8-9.) None of the promoted mechanics is a “person of color” or of “minority descent.” (Id.) Plaintiff asserts that in order to be promoted at Con Edison, one has to be sponsored by someone in a management position, and individuals who are “unliked” are never sponsored for promotion. (Id.) Although Plaintiff can apply for a promotion without sponsorship, he alleges that those who apply without sponsorship are disqualified through “frivolous disciplinary actions, such as write-ups and suspensions.” (Id. at 9.) Such disciplinary actions, in turn, can bar an employee from being able to advance for up to one year, well beyond the timeline of an application process. (Id.) In addition to disqualification, these disciplinary actions could result in decreased protections for the employee, making the employee vulnerable to termination. (Id.) Plaintiff alleges that he was a victim of such practice, but fails to specify when and under what circumstances. (Id.) He also fails to state any specific management position for which he applied, or when he submitted any application. (Id.)

         b. Reassignment from the Gas Distribution Services to the Construction Department

         Plaintiff is a member of an Emergency Response Group (“ERG”), which was ordinarily assigned to the Gas Distribution Services (“GDS”) Department. (Am. Compl. 10.) Plaintiff alleges that Defendant reassigned Plaintiff's ERG from the GDS Department to the Construction Department for discriminatory reasons. (Id.) Plaintiff alleges that the GDS Department is a “more technical department dealing with customers both commercial, and residential, and the problems they may have, of gas nature, in their homes or businesses” and the Construction Department “is a somewhat less technical department, focusing on working outside in the street, in a more physical capacity, through ground breaking, excavation, and pipe repair.” (Id. at 8.)

         In addition, Plaintiff appears to assert that because the GDS Department has “all sorts of premiums, ” such as “Night Premium, Sunday Premium, Midnight Premium, ” unlike the Construction Department, the reassignment has adversely affected his ability to take advantage of the premiums. Plaintiff's ERG was not permitted “to cover GDS shifts or work overtime, ” even when their schedules allowed. (Id.) Plaintiff alleges that no other ERG has been previously reassigned to the Construction Department and the only explanation for such a transfer is to target him. (Id. at 10.) When Plaintiff inquired of an unidentified GDS Planner about the reasons for reassignment of Plaintiff's ERG, the Planner responded: “Well how else do you get rid of one individual, or two or three individuals, without making it look as if that is what you are doing, you get rid of the entire group.” (Id.) Plaintiff does not specify when this reassignment took place, whether it was permanent, or how long the reassignment lasted. (Id. at 8.)

         c. Retaliation

         Plaintiff alleges that Con Edison retaliated against him for filing complaints with EEOA and the EEOC. (Id. at 4.) Plaintiff states that the reassignment of ERG from the GDS Department to the Construction Department was a “hidden act[] of retaliation.” (Id. at 10.)

         d. Other instances of alleged discrimination

         Plaintiff's EEOA complaint describes several instances of alleged discrimination prior to 2005, including: management's refusal to provide Plaintiff with proper tools, uniform and gear in a timely manner; distribution to all employees of information about disciplinary actions taken against Plaintiff; imposing additional hurdles in Plaintiff's application for the “Mechanic A” position; and falsification of documents to accuse Plaintiff and his partner of leaving work early. (Id. at 16.)

         II. Discussion

         a. Standard of review

         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)). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” 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, 104-05 (1976)); see 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”).

         b. Timeliness of claims

         Defendant argues that the Court should dismiss Plaintiff's claims as untimely because Plaintiff: (1) filed his EEOC complaint more than 300 days after the alleged instances of discrimination; and (2) filed this lawsuit more than ninety days after the EEOC issued the right to sue letter. (Def. Mem. 11-13.) The Court discusses each issue below.

         i. Plaintiff's claims included in the EEOA complaint are time-barred and are not subject to equitable tolling

          Before bringing a federal claim under Title VII, a plaintiff must first file a complaint with the EEOC or equivalent state agency. 42 U.S.C. § 2000e-5(e)(1); Perez v. Harbor Freight Tools, __ F. App'x __, __, 2017 WL 2644638, at *1 (2d Cir. June 20, 2017) (“Under Title VII, a plaintiff in New York State must file an employment discrimination charge with the EEOC within 300 days after an alleged unlawful employment practice occurred.” (citations and internal quotations marks omitted)). The 300-day period serves as a statute of limitations, and claims regarding acts that occurred more than 300 days prior to the employee's filing a charge of discrimination with the EEOC are thus time-barred. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015); Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 125-126 (2d Cir. 2010); Klein v. N.Y. Univ., No. 07-CV-0160, 2008 WL 3843514, at *2 (S.D.N.Y. Aug. 14, 2008) (citing Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001)).

         The doctrine of equitable tolling “may be applied by courts to prevent unusually harsh results from dismissals when there are excusable reasons for a plaintiff's failure to meet the required time limitation.” Como v. O'Neill, No. 02-CV-0985, 2002 WL 31729509, at *4 (S.D.N.Y. Dec. 4, 2002). “As a general matter, a litigant seeking equitable tolling must establish two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. __, __, 136 S.Ct. 750, 756 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Equitable tolling is “only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.” Baroor v. N.Y.C. Dep't of Educ., 362 F. App'x 157, 159 (2d Cir. 2010) (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)); Franklin v. New York, 653 F. App'x 771 (2d Cir. 2016) (“Equitable tolling applies only in the rare and exceptional circumstance.” (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000))); see also Mandarino v. Mandarino, 408 F. App'x 428, 430 (2d Cir. 2011) (“[W]e have held that a litigant seeking equitable tolling cannot rely on conclusory and vague claims . . . .”); South. v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994) (stating that a failure by a plaintiff, or her attorney, to act diligently “is insufficient to justify application of an equitable toll”).

         Although held to more lenient standards, pro se litigants are not excused from establishing these elements. See, e.g., Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000) (discussing whether pro se petitioner's allegations were sufficient to establish potential basis for equitable tolling based on general equitable tolling principles); Rosas v. Berry Plastics (Pliant LLC), 649 F. App'x 3, 5 (2d Cir. 2016) (finding that a pro se petitioner did not show diligence or extraordinary circumstances).

         Plaintiff filed the EEOA complaint in 2005, and his EEOC complaint more than six years later in 2012. Thus, all alleged discriminatory actions included in the 2005 EEOA complaint, including Defendant's refusal to timely provide uniform and gear, disclosure to all employees of disciplinary actions against Plaintiff, imposing additional hurdles to Plaintiff's application for the “Mechanic ...

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