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

United States District Court, E.D. New York

June 22, 2018

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

          MEMORANDUM & ORDER

          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. § 2000(e) et seq. (“Title VII”), seeking injunctive relief and damages. (Am. Compl. 1, 3, 9, Docket Entry No. 8-1.)[2] Defendant moved 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.)

         By Memorandum and Order dated December 29, 2017, the Court denied Defendant's motion to dismiss Plaintiff's failure to promote claim, but dismissed all other claims, (“December 2017 Decision”). Hunt v. Con Edison Co. N.Y.C., No. 16-CV-0677, 2017 WL 6759409, at *6 (E.D.N.Y. Dec. 29, 2017). On January 11, 2018, Defendant moved for reconsideration of the denial to dismiss Plaintiff's failure to promote claim. (Def. Mot. for Recons. (“Def. Recons. Mot.”), Docket Entry No. 27; Def. Mem. in Supp. of Def. Recons. Mot. (“Def. Recons. Mem.”), Docket Entry No. 27-1.) For the reasons discussed below, the Court grants Defendant's motion for reconsideration and, on reconsideration, grants Defendant's motion to dismiss Plaintiff's failure to promote claim.

         I. Background

         The Court assumes familiarity with the facts as detailed in the December 2017 Decision, see Hunt, 2017 WL 6759409, and provides only a summary of the pertinent facts and procedural background.

         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 alleged 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.” (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”). Hunt v. Con Edison Co. N.Y.C., No. 16-CV-0677, 2016 WL 8711358, at *1 (E.D.N.Y. May 20, 2016). The EEOC issued a right to sue letter on May 12, 2015, which Plaintiff did not receive until December 9, 2015. Id.

         In February of 2016, Plaintiff filed this action. Plaintiff filed a hard copy of the Amended Complaint on August 22, 2016 and the Court mistakenly uploaded an incomplete copy of Plaintiff's Amended Complaint to ECF. (Am. Compl. as uploaded on Aug. 22, 2016, Docket Entry No. 8.)

         In March of 2017, Defendant moved to dismiss the Amended Complaint. (Def. Mot.) On November 15, 2017, the Court updated the electronic copy of the Amended Complaint to include pages that were inadvertently omitted by the Court and gave Defendant additional time to address the issues contained in those pages. (See Court's Notice dated November 15, 2017, Docket Entry No. 21.)

         On December 1, 2017, Defendant submitted a supplemental brief in support of the motion to dismiss the Amended Complaint. (Def. Suppl. Br. to the Mot. to Dismiss (“Def. Suppl. Br.”), Docket Entry No. 22.) In the supplemental brief, Defendant for the first time raised, as an affirmative defense, Plaintiff's failure to administratively exhaust his failure to promote claim, and moved to dismiss the failure to promote claim on this ground. (Id. at 1.)

         On December 29, 2017, the Court denied Defendant's motion to dismiss Plaintiff's failure to promote claim and granted the motion to dismiss all other claims asserted in the Amended Complaint. Hunt, 2017 WL 6759409. The Court found that Defendant waived the affirmative defense of failure to exhaust administrative remedies because Defendant failed to raise this defense in its initial motion to dismiss. Id. at *5.

         Defendant now moves for reconsideration of the December 2017 Decision, arguing: (1) Defendant did not have notice of Plaintiff's failure to promote claim prior to filing its supplemental brief, and (2) under Rule 8(c) of the Federal Rules of Civil Procedure, an affirmative defense is not waived if not raised in a pre-answer motion. (See Def. Recons. Mem.)

         II. ...


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