NORMAN A. MORDUE, Senior District Judge.
On November 8, 2011, plaintiff Wallace Roberts, who had been attempting to return to work as a railroad engineer for defendant CSX Transportation, Inc. ("CSXT"), filed a verified complaint alleging: age discrimination, in violation of the Age Discrimination in Employment Act, 28 U.S.C. §§ 621-634; disability discrimination, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Defendant seeks summary judgment (Dkt. No.17) dismissing the complaint. Plaintiff opposes defendant's motion. As explained below, the Court finds defendant is entitled to summary judgment as a matter of law on the ground that this action is time barred.
Plaintiff began working for Consolidated Rail Corporation ("Conrail")
In 1985, plaintiff filed an action against Conrail under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., in which he alleged that he suffered, inter alia, "severe", "disabling" and "permanent" injuries as a result of the accident. In 1988, the action proceeded to trial before a jury. At trial, plaintiff claimed that he was totally and permanently disabled as a result of injuries he sustained while working for Conrail. Plaintiff's treating orthopedic surgeon, Matthew Tomaiuoli, M.D., testified that plaintiff could no longer perform his job as a locomotive engineer. Plaintiff's economic expert testified at trial that the value of plaintiff's lost wages from the date of the accident to retirement was $808,944. The jury returned a verdict in plaintiff's favor and a damages awarded in the amount of $1.8 million.
In 1987, plaintiff applied for Railroad Retirement Board ("RRB") disability benefits. Plaintiff claimed that he was "totally disabled from all work." In 1989, following an appeal and a hearing, the RRB issued a decision finding that plaintiff was entitled to a total and permanent disability annuity.
In 1996, after the RRB discontinued plaintiff's benefits, plaintiff requested reconsideration. In a form submitted to the RRB, plaintiff stated that the his back, shoulder, and skin conditions had worsened. The RRB determined that plaintiff was totally and permanently disabled and eventually reinstated plaintiff's disability annuity. Plaintiff has received RRB disability benefits totaling $1,800 per month since November 1996.
Periodically, the RRB has issued notices to plaintiff informing him that he must notify the RRB "If your doctor tells you that your condition ans improved and that you are able to work". Plaintiff has never notified the RRB that his condition has improved or that his is able to work.
In or about November 2004, plaintiff contacted CSXT and asked to return to work as an engineer. The parties and their representatives communicated primarily through letters when addressing plaintiff's request to return to work.
In a letter to Larry Clapp "c/o Labor Relations" dated November 16, 2004, plaintiff wrote: "After recently speaking with Mr. Milt Brill in Dewitt, NY I am writing to request to be put back to work as an engineer. My man # is ... Seniority date is 2/05/1970." Plaintiff requested to return to work because he lost the money he won at trial in the stock market.
Because Conrail listed plaintiff as collecting railroad disability benefits, CSXT required that plaintiff medically qualify before he reinstating him as an engineer to his level of seniority. Plaintiff contacted Conrail and requested that it provide information to CSXT so that he could return to work.
In a letter to plaintiff dated April 21, 2005, Joseph Flanley, Senior Director of Labor Relations & Personnel for Conrail, wrote:
After receiving Flanley's letter, plaintiff asked his physician, Joseph Cambareri, M.D., to submit a report to CSXT stating that he could return to work in his current condition. In a letter to Dr. Neilson dated May 25, 2005, Dr. Cambareri wrote:
In a letter to plaintiff dated September 30, 2005, Dr. Neilson wrote:
In a letter to Dr. Neilson dated March 31, 2006, Dr. Cambareri wrote: "Mr. Wallace Roberts suffered a spinal injury to his lumbar spine in 1984. After 5 years he eventually underwent surgery for fusion of L5 and S1 due to spondylolisthesis by Dr. Tomaroli. He has gradually recovered from this. Enclosed are unrelated treatment notes as per your request."
In a letter to plaintiff dated May 19, 2006, Dr. Neilson wrote:
In a letter dated January 10, 2007, to CSXT, Russell Silverman, M.D., a physician for the Heart Care Center, P.C., wrote:
In a letter to plaintiff dated February 12, 2007, Dr. Neilson wrote:
In a letter to plaintiff dated June 12, 2007, Dr. Neilson wrote:
After receiving this letter from Dr. Neilson, plaintiff contacted Angie Barton, "CSXT's Manager of Medical Management" to express his disagreement with the decision not to progress his application.
In a letter to plaintiff dated July 23, 2007, Dr. Neilson stated:
Plaintiff never contacted Marshall. He did, however, retain Talarico & Associates to represent him and attorney Joseph Talarico proceeded to correspond with Dr. Neilson.
In a letter to Mr. Talarico dated October 19, 2007, Dr. Neilson wrote:
In a letter to Mr. Talarico dated December 13, 2007, Dr. Neilson wrote:
In a letter to Mr. Talarico dated February 1, 2008, Dr. Neilson wrote:
On October 9, 2009, plaintiff filed a charge with the EEOC alleging discrimination based on age and disability as well as retaliation. In the intake questionnaire, plaintiff stated that the date of discrimination was "continuous" and that "CSX Transportation has failed to reinstate Wallace Robert's [sic] employment as a result of retaliation for 1984 lawsuit demonstrating injury and disability suffered while on duty." Plaintiff further stated that:
Plaintiff submitted a letter dated January 25, 2010 from Dr. Cambareri to CSXT. In the letter, Dr. Cambareri wrote:
Plaintiff contacted R.C. McVeen, General Chairman of the United Transportation Union, to ask for his "assistance." In a letter to Chairman McVeen dated March 3, 2010, E. St. Amant, the director of labor-relations for CSXT, wrote:
Plaintiff sent CSXT a report dated April 13, 2010 by Stephen Robinson, M.D., an orthopedist at Syracuse Orthopedic Specialist who examined plaintiff. Dr. Robinson noted that plaintiff complained of "dysfunction and/or pain in the lumbar spine", "low back pain, with numbness in right lower extremity," and indicated that he injured his low back in 1984 "which led to him going out of work, states he is now looking to try and go back to work but employer would like a letter from a specialist that he can do so".
Dr. Robinson noted that plaintiff had "decreased sensation in the right anterior thigh, medial calf and lateral calf." Other than a "few patches of psoriasis", the rest of the exam revealed normal results.
Dr. Robinson's assessment was "low back syndrome" and commented that: "The patient has some chronic mild low back pain. He has been presented a job with the railroad that he feels he is capable of handling. Based on the statements that he can handle this job, I do agree that he could."
In letter to plaintiff dated April 23, 2010, Dr. Neilson wrote:
On January 6, 2011, plaintiff underwent a functional capacity evaluation. In a letter to Dr. Cambareri dated January 9, 2011, the functional capacity evaluator stated: "The results indicate that Mr. Roberts is feasible to perform work at the LIGHT Physical Demand Level for an 8 hour day according to the Dictionary of Occupational Titles, U.S. Department of Labor, 1991." Plaintiff did not provide this functional capacity evaluation to CSXT.
On August 25, 2011, the EEOC issued a Right to Sue letter to plaintiff. On November 8, 2011, plaintiff commenced this action.
Plaintiff brings three causes of action: age discrimination, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621-34; disability discrimination, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et sq.; and retaliation, in violation if 42 U.S.C. § 2000e (Title VII). Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground, inter alia, that plaintiff's claims are time-barred because his EEOC charge of discrimination was untimely. Plaintiff opposes defendant's motion.
Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When deciding a summary judgment motion, the court must "resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
Before commencing an action in federal court alleging violations of the ADEA, the ADA and Title VII, a plaintiff must file a timely charge with the EEOC. 42 U.S.C. § 12117 (incorporating into the ADA the exhaustion requirement of Title VII, codified at 42 U.S.C. § 2000e-5); Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir.2008) (ADEA); Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiam) (Title VII). "[W]hen a plaintiff fails to file a timely charge with the EEOC, the claim is time barred." Butts v. City of New York Dep't of Hous. Pres. & Devel., 990 F.2d 1397, 1401 (2d Cir.1993), superseded on by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998). "An employment discrimination claim must be filed with the EEOC within 300 days of the alleged discrimination in a state, like New York, with a fair employment agency." Pikulin v. City Univ. of New York, 176 F.3d 598, 599 (2d Cir.1999).
There are exceptions to the 300-day statutory bar; the limitations period "may be tolled by evidence of a continuing violation, or waiver, estoppel, or equitable tolling ." Curtis v. Airborne Freight Corp., No. 98 Civ. 4062(SAS), 1998 WL 883297, at *13 (S.D.N.Y. Dec.17, 1998) (citing Delaware State College v. Packs, 449 U.S. 250, 257 (1980)).
On or about June 12, 2007, CSXT notified plaintiff that he would not be reinstated as an engineer. Plaintiff filed his EEOC charge 850 days later, on October 9, 2009. Thus, the complaint in this case is time-barred unless an exception to the 300-day limitations period applies.
An exception to the 300-day limitations period "exists for claims that the discriminatory acts were part of a continuing policy and practice of prohibited discrimination." Valtchev v. City of New York, 400 F.App'x 586, 588 (2d Cir. 2010). "The continuing violation doctrine applies `to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists.'" Id. (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). The Second Circuit has cautioned, however, that "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Id. (internal quotation marks omitted). "To bring a claim within the continuing violation exception, a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitations period." Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004).
Plaintiff argues that CSXT's March 3, 2010 request for "a current report from a specialist regarding his back along with a recent functional capacity evaluation," and April 23, 2010, letter from Dr. Neilson stating that he had not received "a recent functional capacity evaluation" are part of a continuing policy of discrimination. Even assuming these are not discrete discriminatory acts, see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002) ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire ... are not actionable if time barred, even when they are related to acts alleged in timely filed charges"), and are part of a continuing violation, the doctrine is inapplicable because plaintiff has failed to allege that any act of discrimination occurred within the 300-day limitations period, December 13, 2008 to October 9, 2009. Indeed, there is no evidence in the record that there were any interactions between the parties during that time period.
Plaintiff argues that equitable tolling should apply and the Court should find his claims timely because: "CSXT would not be unduly prejudice [sic] and cannot show prejudice if filing period was modified based on the fact that Mr. Roberts continued to work with CSXT by provide [sic] documentation after Defendant's alleged date of notice of adverse employment action of June 12, 2007."
Equitable tolling may be appropriate in situations "where the plaintiff actively pursued judicial remedies but filed a defective pleading during the specified time period; where [the] plaintiff was unaware of ... her cause of action due to misleading conduct of the defendant; or where a plaintiff's medical condition or mental impairment prevented her from proceeding in a timely fashion." Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal quotations and citations omitted).
Even viewing the record in the light most favorable to plaintiff, there is no evidence that would support a finding that the application of equitable tolling would be appropriate in this case. It is undisputed that plaintiff, who was represented by counsel, filed the EEOC charge 850 days after he received notice that CSXT would not reinstate him. Nothing in the record suggests defendant engaged in misleading conduct. Nor does plaintiff contend that a medical condition prevented him from filing a timely EEOC charge. Thus, equitable tolling does not apply and since there were no events that occurred within the limitations period, plaintiff's claims are time-barred.
The Court does not reach defendant's remaining arguments.
Accordingly, it is hereby
Pursuant to the Implementing Agreement between Conrail, CSXT and the United Transportation Union, the employees who were on disability effective June 1, 1999, would have certain rights to return to work with CSXT if they provided evidence that they were qualified to return to duty. Plaintiff takes issue with defendant's claim that the Implementing Agreement contains such a requirement. This factual dispute is, however, immaterial.
