Opinion
04-CV-0159E(Sr).
July 21, 2005
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Kenneth Hayes, an African-American, filed this action against his employer, Niagara Mohawk Power Corporation ("Niagara Mohawk") on March 10, 2004 alleging a violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The Complaint alleges that Niagara Mohawk discriminated against Hayes by (1) testing him for the Auxiliary Operator D ("AOD") position and (2) subsequently lowering his examination score in the midst of his contest of Niagara Mohawk's failure to hire him. Niagara Mohawk filed a motion for summary judgment on February 14, 2005, which was argued and submitted on April 9, 2005. For the reasons set forth below, Niagara Mohawk's motion for summary judgment will be granted.
Hayes has not filed any papers in opposition to Niagara Mohawk's motion for summary judgment. This Court must nonetheless determine whether Niagara Mohawk has satisfied its burden under Rule 56 of the Federal Rules of Civil Procedure by "demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 680-681 (2d Cir. 2001).
In addressing Niagara Mohawk's summary judgment motion, this Court will apply the familiar standard applicable to motions made pursuant to Rule 56(c) of the Federal Rules of Civil Procedure — a standard that need not be reiterated here.
See, e.g., DiStefano v. HSBC Bank, 2004 U.S. Dist. LEXIS 13823, at *5-6 (W.D.N.Y. 2004).
Niagara Mohawk notified Hayes that his position at the Huntley Steam Station would be eliminated. On February 22, 1995, Hayes exercised his bumping rights, pursuant to the applicable bargaining agreement, to move to the AOD position in Niagara Mohawk's Dunkirk facility. He was given a test to qualify for the AOD position by Niagara Mohawk's Dunkirk Operations Manager, Charles Valitis. On that same day, Valitis informed Hayes that he failed the examination and would not be awarded the AOD position. Hayes subsequently filed a grievance wherein he asserts that Valitis had made remarks that he was not qualified for the position and had cheated on the test. Hayes also asserts that Valitis did not give him full credit for questions that Hayes had answered correctly. Niagara Mohawk, however, claims that Hayes did not get the AOD position because he failed the written examination and lacked the requisite knowledge and qualifications for the position.
Bumping is a process whereby an employee who is affected by a layoff may, in certain circumstances, displace a less senior employee. Oppedisano Aff. ¶ 11.
Although Hayes alleges racial discrimination, he testified at his deposition that he believes he was not awarded the AOD position because of favoritism toward Dunkirk employees, not white employees. Hayes Dep. at 61, 93. In fact, several white employees also sought to bump into the AOD position but were not awarded the position because they failed the qualifying test. Id. at 56-57. Hayes contends that Valitis, who administered the qualifying test and determined that Hayes would not be awarded the AOD position, sought to protect Dunkirk employees by preventing other personnel from successfully bumping them. Id. at 61, 93.
Niagara Mohawk argues that summary judgment should be granted in its favor because Hayes's charge of discrimination is untimely inasmuch as it had not been filed with the U.S. Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory act. Niagara Mohawk also argues that Hayes cannot satisfy his burden of demonstrating that race was a motivating factor in the disputed employment action given the nature of the evidence that he has proffered. This Court need not address the latter issue, however, because Hayes failed to timely file his administrative claim.
In New York, which has an agency with the authority to address charges of discriminatory employment practices — specifically, the Division of Human Rights ("DHR") —, Title VII requires that an employee file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment practice. Hayes filed a charge of discrimination with the DHR and the EEOC on February 21, 1996 and an amended charge on February 11, 1998. Hayes alleged in both the original and amended charge that he had been subjected to race discrimination when Niagara Mohawk denied him the AOD position, which had been ultimately awarded to a Caucasian employee who was given a different test.
Title VII's period for filing an administrative charge of discrimination commences on the date the employee learns of the employer's allegedly discriminatory conduct. Thus, the first alleged adverse employment action occurred on February 22, 1995 when Hayes was given the test and told he would not be awarded the position. Hayes's charge, however, was filed 364 days after this alleged discriminatory act.
Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000) (citing Delaware State College v. Ricks, 449 U.S. 250, 258-259 (1980)).
"[T]he timely filing of an EEOC charge is not a jurisdictional prerequisite to filing a federal lawsuit but is more akin to a statute of limitations and subject to waiver, estoppel and tolling under appropriate circumstances." Because Hayes's discrimination charge was not timely filed, this Court must ascertain whether waiver, estoppel or equitable tolling applies. Hayes's filing of a grievance does not toll or postpone the accrual of Title VII's limitations period.
Talyansky v. Xerox Corp., 22 F. Supp. 2d 55, 57 (W.D.N.Y. 1998), aff'd, 182 F.3d 901 (2d Cir. 1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
Delaware State College, supra note 7, at 261.
The doctrine of waiver does not apply because Hayes has not even alleged that Niagara Mohawk waived the limitations period. The doctrine of equitable estoppel has been invoked "where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay bringing his [claim]." To prevail on an equitable estoppel theory, a plaintiff must show that "(1) the defendant made a definite misrepresentation of fact, and had reason to believe that the plaintiff would rely on it; and (2) the plaintiff reasonably relied on that misrepresentation to his detriment." Consequently, estoppel does not apply because Hayes has alleged neither a misrepresentation by Niagara Mohawk concerning the limitations period nor conduct by Niagara Mohawk that could have induced him to delay filing an action.
Francis v. Blaikie Group, 2005 U.S. Dist. LEXIS 11121, at *10 (S.D.N.Y. 2005) (declining to address waiver as a ground for tolling because plaintiff failed to raise such).
Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 61 (2d Cir. 1986) (quoting Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 49-50 (2d Cir. 1985)).
Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (citing Heckler v. Cmty. Health Servs., 467 U.S. 51, 59 (1984)).
"[E]quitable tolling is only appropriate in * * * rare and exceptional circumstance[s], in which a party is prevented in some extraordinary way from exercising his rights." In determining whether equitable tolling is appropriate, this Court must consider "whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period [he] seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply."
Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (alteration in original) (internal quotation marks and citation omitted).
Zerilli-Edelglass, supra note 13, at 80-81 (internal quotation marks and citation omitted).
It is unclear whether the doctrine is applicable in cases such as this wherein the plaintiff claims that he relied on erroneous filing information supplied by the EEOC but wherein the EEOC is not a party defendant. While the Second Circuit Court of Appeals has noted that use of the doctrine is "questionable" when the EEOC is not a party, it has also stated that the doctrine may apply if the plaintiff's claim of reliance on the EEOC's erroneous information is substantiated. Assuming arguendo the doctrine's applicability, Hayes has failed to substantiate his claim of reliance on erroneous information provided by the EEOC. At his deposition, Hayes testified that he was unsure as to the source of the erroneous filing information. He stated that he could have received it from someone at the DHR, the EEOC or even one of his friends. Hayes has not provided the name of the EEOC representative with whom he allegedly spoke or the date of the alleged conversation. Such unsubstantiated claims are insufficient to support the application of the doctrine of equitable tolling.
Compare Vernon v. Cassadaga Valley Cent. School Dist., 49 F.3d 886, 891 (2d Cir. 1995), cited with approval in Li-Lan Tsai v. Rockefeller Univ., 2002 WL 237843, at *6 (S.D.N.Y. 2002), aff'd, 46 Fed. Appx. 657, 658 (2d Cir. 2002), cert. denied, 537 U.S. 1194 (2003) (noting that application of equitable tolling doctrine based on EEOC's action is "questionable" where the EEOC is not a defendant), with Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984); Sinha v. New York City Dep't of Educ., 2004 WL 878000, at *2 (E.D.N.Y. 2004), aff'd, 127 Fed. Appx. 546, 547 (2d Cir. 2005) (noting that doctrine may apply where plaintiff substantiates her claim that the EEOC provided erroneous information). Although the Second Circuit's decisions in both Li-Lan Tsai and Sinha are unpublished and are not to be cited for precedential authority, they are cited here merely to illustrate that the question of the doctrine's applicability remains unsettled.
Hayes testified as follows:
"A: Like I told you, I can't say for sure that it was somebody at the New York State Division of Human Rights. Can't say that's the person who told me. I can't say it was Mr. Johnson. I can't say it was the secretary. I can't say it was somebody at EEOC compliance. I can't say it wasn't one of my buddies. I don't know who actually told me.
"Q: All right. All right. But, what you recall them saying, you had three hundred sixty-five days for the state claim and three hundred sixty two days for your federal claim, right?
"A: Somebody told me that, yes."
Hayes Dep. at 192.
See Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 32 (S.D.N.Y. 1994), aff'd, 50 F.3d 3 (2d Cir. 1995) (unsupported contention that on unspecified date plaintiff telephoned EEOC office and was given incorrect information held insufficient to invoke equitable tolling).
Finally, and fatally to plaintiff's claim — although he contends that he was told he could file his federal claim 362 days after the discriminatory act —, Hayes did not actually file his claim until the 364th day. Thus, Hayes did not act with reasonable diligence during the time period he seeks to have tolled, and the doctrine of equitable tolling, even if available, is not appropriately applied in this case.
To the extent Hayes could argue that the alleged lowering of his test score on May 8, 1995 during the second step grievance was an independently actionable adverse employment action and that his EEOC charge was timely filed within 300 days of this alleged second discriminatory act, such argument is without merit. To be a separate discriminatory act the lowering of Hayes's test score by Niagara Mohawk must have materially adversely affected his status as an employee. Hayes sustained an adverse employment action only if he suffered a "materially adverse change in the conditions and terms of employment." An adverse employment action "must involve the deprivation of some tangible job benefits such as compensation, terms, conditions, or privileges of employment."
Hayes filed a grievance to commence the grievance process in which there were several steps. Hayes Dep. at 113. During the second step of the grievance process, Hayes's grievance was denied and his qualifying test score was lowered. Id. at 115-116.
Williams v. Timberlodge Steak House, 2005 U.S. Dist. LEXIS 2452, at *16 (W.D.N.Y. 2005) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)) (internal quotation marks omitted).
Murphy v. Bd. of Educ., 273 F. Supp. 2d 292, 304 (W.D.N.Y. 2003), aff'd, 2004 U.S. App. LEXIS 15544 (2d Cir. 2004) (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)) (internal quotation marks omitted).
At the time that Hayes's test score was lowered, Niagara Mohawk had already concluded that Hayes had failed the examination and would not be awarded the AOD position. As a result, there was no change in the terms and conditions of Hayes's employment because he did not have the AOD position prior to the lowering of the test score and did not have the AOD position after the lowering of the test score. The fact that Niagara Mohawk concluded that Hayes failed the qualifying test by a greater margin than first thought is not a sufficient adverse employment action because it did not affect his status with respect to the AOD position. Accordingly, Hayes's claim will be dismissed.
"[A]n employer performs a separate employment practice each time it takes adverse action against an employee, even if that action is simply a periodic implementation of an adverse decision previously made." O'Dwyer v. Snow, 2004 U.S. Dist. LEXIS 3528, at *19 (S.D.N.Y. 2004) (quoting Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir. 2003)). The lowering of Hayes's test score cannot qualify as an adverse action under Title VII because it was not a further implementation of Niagara Mohawk's failure to award the AOD position to Hayes. That decision had previously been made and implemented. The denial of an employment position is an act that is implemented only once unlike other acts, such as discriminatory pay, which can be implemented periodically. Cf. Bazemore v. Friday, 478 U.S. 385, 395 (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII * * *.").
See Galabya, supra note 20, at 640 ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices * * * unique to a particular situation.") (citation omitted).
Accordingly, it is hereby ORDERED that Defendant's motion for summary judgment is granted, that this action is dismissed and that the Clerk of this Court shall close this case.