United States District Court, E.D. New York
ERIC C. HUNT, Plaintiff,
CON EDISON CO. N.Y.C., Defendant.
MEMORANDUM & ORDER
K. BRODIE, United States District Judge:
Eric Hunt, proceeding pro se, commenced the
above-captioned action on February 8, 2016, against Defendant
Con Edison Co. N.Y.C. (“Con
Edison”). 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.) 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
following facts are taken from the Amended Complaint and are
accepted as true for the purposes of deciding this motion.
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.)
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.” (Id. at 7.) EEOA did not address
the allegations. (Id.)
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.
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.)
Reassignment from the Gas Distribution Services to the
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.)
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.)
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.)
Other instances of alleged discrimination
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.)
Standard of review
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.
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”).
Timeliness of claims
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.
Plaintiff's claims included in the EEOA complaint are
time-barred and are not subject to equitable tolling
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.
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”).
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
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 ...