Cruz v. Triangle Affiliates, Inc.

• Decision Date: 04 October 1983
• Docket Number: No. 81 CV 3088 (ERN).,81 CV 3088 (ERN).
• Parties: Angel CRUZ, Plaintiff, v. TRIANGLE AFFILIATES, INC., Tempco Service Industries, Inc., and Local 32B-32J Service Employees International Union AFL-CIO, Defendants.
• Court: U.S. District Court — Eastern District of New York

571 F. Supp. 1218

Angel CRUZ, Plaintiff, v. TRIANGLE AFFILIATES, INC., Tempco Service Industries, Inc., and Local 32B-32J Service Employees International Union AFL-CIO, Defendants.

No. 81 CV 3088 (ERN).

United States District Court, E.D. New York.

October 4, 1983.

Mudge, Rose, Guthrie & Alexander by Stephen M. Packard, Catherine E. Palmer, New York City, for plaintiff.

Miller & Seeger by Irving A. Logue, New York City, for defendant Triangle.

Richard M. Gaba, Garden City, N.Y., for defendant Tempco.

Israelson, Manning & Raab by Ira A. Sturm, New York City, for defendant Local 32B-32J.

MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

Defendants have moved for summary judgment pursuant to F.R.Civ.P. 56 and to dismiss the complaint pursuant to F.R. Civ.P. 12(b). For the reasons which follow, defendants' motions are granted.

Plaintiff commenced this suit on September 21, 1981. Subsequently, on May 3, 1982, court-appointed counsel filed an amended complaint in eight counts, which invoked this Court's jurisdiction under 28 U.S.C. § 1343(4) and 29 U.S.C. § 185(c) to seek redress against plaintiffs' former employers and the union which represented him. Plaintiff alleges that Triangle Affiliates, Inc. (Triangle) (Counts IV, V, and VI) and Tempco Service Industries, Inc. (Tempco) (Counts I, II, and III), his former employers, each acted in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against him in work assignments and on-the-job treatment because he is of Puerto Rican origin. He also claims that he was eventually discharged by Triangle for the same reason. The treatment by Tempco allegedly arose from plaintiff's refusal to participate in a scheme to employ illegal aliens. In addition to Title VII claims, plaintiff alleges that his former employers' conduct was a prima facie tort.

Plaintiff has also sued Local 32B-32J, Service Employees International Union, AFL-CIO (Union) (Counts VII and VIII), under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, for its alleged failure to have processed his grievances and its breach of its duty to provide fair representation.

The parties are not in dispute upon the following facts. In January 1974 Tempco, which held the maintenance and cleaning services contract at the World Trade Center, hired plaintiff as a porter. Tempco subsequently lost the contract to Triangle in February 1978. At that time, Triangle hired plaintiff as a porter and subsequently discharged him on October 31, 1978.

I.

During the pendency of defendants' motions, the Supreme Court determined that the six-month statute of limitations of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), should govern actions brought by an employee against his union for a breach of the duty of fair representation. Del Costello v. International Brotherhood of Teamsters, ___ U.S. ___, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Based upon plaintiff's averment that he registered a complaint with the union "immediately" after his termination from Triangle and that approximately one month later, a union business agent informed him that the union could do nothing for him, the union argues that the suit was not filed within six months of the last possible date upon which the claim against it could have accrued. See Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967). Plaintiff responds that Del Costello should not be applied retroactively to bar his claim.

The factors to be considered in determining whether to apply a decision of the Supreme Court prospectively only are stated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted):

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Finally, we have weighed the inequity imposed by retroactive application, for "where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity."

All three factors in Chevron must be shown to favor prospective-only application before a decision will be denied retroactive effect. Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294 (7th Cir.1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976).

Plaintiff first argues that he relied upon prevailing Second Circuit law that the statute of limitations was three years. Assad v. Mount Sinai Hospital, 703 F.2d 36, 43-44 (2d Cir.1983). The Court is unable to locate any prevailing Second Circuit law upon this issue as of the time, September 21, 1981, when plaintiff filed his complaint. See Kikos v. International Brotherhood of Teamsters, 526 F.Supp. 110, 115 (E.D.Mich.1981). The question appears to have been first addressed in Flowers v. Local 2602, etc., 671 F.2d 87 (2d Cir.1982) (on remand for reconsideration in light of United Postal Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981)), which was reversed upon that question as a companion case to Del Costello. Moreover, the Supreme Court foreshadowed its decision in Del Costello with dicta in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 63, 101 S.Ct. 1559, 1564 (1981):

We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of § 301 than it is of general contract law.

In a concurring and dissenting opinion, Justice Stevens noted the potential application of the Court's dicta. 451 U.S. at 72, 101 S.Ct. at 1569.

Plaintiff additionally argues that the court should not reward the union with the benefit of a newly established statute of limitations for its repeated refusals to investigate his complaints.¹ Assuming, arguendo, that each alleged instance of the union's breach of its duty to pursue plaintiff's grievances gave rise to a separate claim, plaintiff, by his own admission, waited almost three years from the last possible date of a breach to institute this suit. Despite the asserted merits of a claim, statutes of limitations function as statutes of repose which favor the swift and orderly resolution of claims. The potential merits of plaintiff's case do not separate him from any other plaintiff who, knowingly or unknowingly, waits too long to seek relief from the courts. The plaintiff has advanced no persuasive reason to avoid the effect of Del Costello. The Court finds that the plaintiff's claim is time barred and accordingly grants defendant Local 32B-32J's motion for summary judgment upon Counts VII and VIII of the amended complaint.

II.

In support of its motion to dismiss the complaint, Tempco also presents statute of limitations arguments.

For purposes of this motion, the Court accepts as true the facts as stated in plaintiff's affidavit. Tempco discharged plaintiff on February 3, 1978, the last day of its cleaning services contract. Plaintiff subsequently registered an oral complaint with the Equal Employment Opportunity Commission (EEOC) on December 15, 1978. The EEOC referred the matter to the New York City Commission on Human Rights, which did not act upon the claim, but instead, referred it back to the EEOC. On March 9, 1981, the EEOC found no reasonable cause for the complaint and issued a right to sue letter. The letter did not name Tempco as a party; however, plaintiff avers that he had intended to charge Tempco and thought that he had done so.

Tempco argues that plaintiff failed to meet the filing requirements of Section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (in pertinent part):

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred ....

The Supreme Court has held "that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (footnote omitted).

Plaintiff contends that the limitation of section 706(e) should be equitably tolled because of the merits of his claim and his status of layman with English as a second language. Plaintiff does not dispute that Tempco did nothing to lull or mislead him or otherwise forestall or impede him from timely filing with the EEOC. See Smith v. American President Lines, Ltd., 571 F.2d 102, 109 n. 12 (2d Cir.1978); compare Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 594-96 (5th Cir.1981) (allegation that employer misrepresented its intent to reinstate employee to a third party, whom it should have known would convey the misrepresentation,...