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incorporating plaintiff's Application for Correction of Military Record into the record because plaintiff relied on it to satisfy the statute of limitations
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06 Civ. 13115 (DLC).
May 31, 2007
For Plaintiff: Peter J. Gleason, Pro Se New York, NY.
For Defendants: Joseph A. Pantoja, Assistant United States Attorney, Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY.
OPINION ORDER
Plaintiff Peter Gleason ("Gleason") brings this action pro se against the United States Department of Homeland Security, the United States Coast Guard, and several of their employees for discharging him because of his jury service, in violation of 28 U.S.C. § 1875 ("Section 1875"). The defendants have filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. For the following reasons, the defendants' motion is granted.
Background
The following facts are undisputed or taken from the complaint. Gleason is a retired Lieutenant in the United States Coast Guard Reserve and an attorney admitted before this Court. On December 21, 1999, Gleason notified his Coast Guard supervisor of his impending jury service. Gleason was on jury duty from January 3 to January 28, 2000, during which time the Coast Guard assigned him duties, and after which it evaluated him negatively for failure to perform those duties. The evaluation resulted in his mandatory retirement. Gleason received notice of the negative evaluation on June 12, 2000, and the mandatory retirement was effective July 1. After pursuing administrative remedies, Gleason filed this action on November 13, 2006, claiming violation of Section 1875. He seeks appointment to the rank of Commander, reinstatement, monetary damages, and other relief.
On that date he was transferred to Inactive Ready Reserve.
Gleason's claims arise under Section 1875, which protects the employment of jurors:
(a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States.
(b) Any employer who violates the provisions of this section —
(1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation;
(2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and
(3) shall be subject to a civil penalty of not more than $1,000 for each violation as to each employee.
. . . .
(d)(1) An individual claiming that his employer has violated the provisions of this section may make application to the district court for the district in which such employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid to the extent provided by section 3006A of title 18, United States Code.28 U.S.C. § 1875 (emphases added).
With his complaint, Gleason submitted an application for appointment of counsel under Section 1875(d)(1). As a threshold matter, Section 1875 requires a finding of "probable merit" before counsel can be appointed. Therefore, a November 16, 2006 Order denied the request without prejudice to its renewal at such time as the existence of a potentially meritorious claim may be demonstrated.
On February 9, 2007, the defendants filed a motion to dismiss, claiming that there is no subject matter jurisdiction because the complaint is barred by sovereign immunity and that the complaint fails to state a claim because it is barred by the statute of limitations. In his opposition filed on March 8, plaintiff renewed his request for appointment of counsel. The defendants' reply was filed on March 22.
Discussion
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citation omitted). Claims brought against a federal agency or a federal agent in his or her official capacity are effectively claims against the United States. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). The United States, however, is generally immune from suit unless it consents to be sued, and "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted).
There has been no wavier of sovereign immunity in this action. "A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996) (citation omitted). The plaintiff bears the burden of proving "by a preponderance of evidence that jurisdiction exists" when the defendant invokes sovereign immunity. Overton v. N.Y. State Div. of Military Naval Affairs, 373 F.3d 83, 93 (2d Cir. 2004) (citation omitted). Nowhere in the language of Section 1875 is there any indication that sovereign immunity is being waived.
Gleason argues that his claim should not be dismissed because of the importance of the jury system and because of Article III of the Constitution. The conferral of federal jurisdiction, however, is not a waiver of sovereign immunity. See, e.g., Kulawy v. United States, 917 F.2d 729, 733 (2d Cir. 1990).
Gleason also contends that a waiver of sovereign immunity can be found in Section 1875 because the term "employer" in the statute must include a large employer like the federal government. Gleason cites a decision which found that for purposes of Section 1875, "employer" includes municipal employees. See Garcia v. Municipality of Mayaguez, 118 F. Supp. 2d 153, 154 (D.P.R. 2000). Garcia is of no assistance to the plaintiff. No defendant in Garcia asserted the defense of sovereign immunity, and the defendant municipality did not even deny that it was the plaintiff's employer for purposes of Section 1875. There is simply no language in Section 1875 that can be construed as a waiver of sovereign immunity. For example, in contrast to the silence in Section 1875, limited, specific waivers of federal sovereign immunity are explicitly expressed in other employment-related statutes such as Title VII or the ADEA. Accordingly, the government agency defendants and the individual defendants sued in their official capacity are entitled to dismissal. To the extent that plaintiff is suing individual defendants in their personal capacities, his claim is barred by the statute of limitations.
All personnel actions affecting employees or applicants for employment . . . in military departments , in executive agencies , in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.42 U.S.C. § 2000e-16.
All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments , in executive agencies , in the United States Postal Service and the Postal Regulatory Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on age.29 U.S.C. § 633a.
Gleason has not made it entirely clear whether he is suing the individual defendants in their individual capacities as well as their official, but the limited suggestions in his complaint relating to actions of the individual defendants who were his supervisors are read liberally in this pro se filing to claim suit against these defendants in their individual capacities as well. See, e.g., Wright v. Comm'r, 381 F.3d 41, 44 (2d Cir. 2004).
Motions to dismiss based on the statute of limitations are properly brought under Rule 12(b)(6). McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citing Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)). Section 1875 does not contain its own statute of limitations. As a result, an appropriate limitations period must be borrowed from analogous state or federal law, using the standard described in North Star Steel Co. v. Thomas, 515 U.S. 29, 33-35 (1995). Corcoran v. N.Y. Power Auth., 202 F.3d 530, 542 (2d Cir. 1999). When a federal scheme lacks a limitations period, state law is the "lender of first resort." North Star Steel, 515 U.S. at 34.
The most analogous state statute is New York's Human Rights Law, N.Y. Exec. Law § 296, which prohibits discrimination in employment on a variety of grounds. While New York does have a statute designed specifically to protect jurors' employment, N.Y. Jud. Law § 519, the statute is less analogous to Section 1875 because the New York statute does not provide for a private right of action against the employer. See Di Blasi v. Traffax Traffic Network, 681 N.Y.S.2d 147, 148-49 (App.Div. 1998). Under New York's Human Rights Law, parties can bring suit against discriminatory employers, and the applicable limitations period is three years. Bistrisky v. N.Y. State Dept. of Correctional Services, 804 N.Y.S.2d 443, 444 (App.Div. 2005); see also N.Y. C.P.L.R. § 214 (applying a three-year statute of limitation to "an action to recover upon a liability, penalty or forfeiture created or imposed by statute").
The only case that this Court found to have considered the statute of limitations issue for Section 1875 determined that the closest state law analogy to Section 1875 in Florida was the limitations period for "an action 'to recover wages or overtime or damages or penalties concerning payment of wages.'" Kennedy v. Sears, Roebuck Co., No. 92-1062-CIV-ORL-19, 1993 WL 276911, at *2 (M.D. Fla. Mar. 31, 1993) (citing Fla. Stat. § 95.11(4)(c)). While New York has a six-year statute of limitations for recovery of wage claims, N.Y. Labor Law § 198, that statutory section only applies to "claims based upon substantive violations of [New York] Labor Law article 6." Simpson v. Lakeside Eng'g, P.C., 809 N.Y.S.2d 710, 712 (App.Div. 2006) (citation omitted). Article 6 concerns "the rights of employees to the payment of wages,"Gottlieb v. Kenneth D. Laub Co., 626 N.E.2d 29, 31 (N.Y. 1993), and includes provisions on topics such as the prompt payment of wages, deductions, and the prohibition of a differential in rate of pay because of sex. See N.Y. Labor Law §§ 190 to 199-a. New York's Human Rights Law, which addresses discriminatory employment practices and allows a broad range of relief, is more analogous to Section 1875 than the limited wage claims available under New York Labor Law.
A claim accrues when the plaintiff "discovers, or with due diligence should have discovered, the injury that is the basis of the litigation." Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir. 2007). Gleason served on jury duty from January 3 to January 28, 2000. According to his Application for Correction of Military Record, which Gleason filed to correct the negative evaluation he received, the date the "alleged error or injustice" occurred was April 25, 2000, the date the negative evaluation was signed. The date of discovery was provided as June 12, which appears to indicate the day he was notified of the negative evaluation. On July 12, he was transferred to Inactive Ready Reserve. Gleason filed the complaint in this action on November 13, 2006. It is clear that more than three years' time has passed since the June 12, 2000 date of discovery, and his claim is barred by the statute of limitations.
The defendants submitted these records with their reply papers in response to plaintiff's tolling argument, which is described below. For purposes of a motion to dismiss, the court will deem the complaint to include "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Even if the plaintiff does not attach to his complaint "a document upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment."Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006) (citation omitted). Plaintiff relies on his administrative filings to satisfy the statute of limitations, but he does not provide any of the relevant dates regarding the administrative proceedings in his Complaint. Therefore, these documents submitted by the defendants are incorporated into the record to the extent necessary to obtain the relevant dates.
Gleason argues that he was required to exhaust administrative remedies, and therefore the time during the administrative process should be tolled. The defendants point out that there is no requirement to exhaust administrative remedies under Section 1875. Even if the period during which Gleason sought administrative remedies were tolled, however, the action would still be barred by the statute of limitations. Gleason sought administrative review on September 24, 2004, and a final agency determination was rendered on October 28, 2005. The time between discovery of his injury and the filing of the complaint exceeds six years, and tolling the statute of limitations for the thirteen months during which Gleason's administrative claim was pending does not save the claim from the three-year bar.
Furthermore, as the defendants point out, plaintiff's administrative filings, although mentioning his jury service, do not claim that he was discharged because of his jury service, unlike the claim in his complaint here.
Gleason further points out that under New York law, a six-year statute of limitations applies to actions having no specific time limitations. N.Y. C.P.L.R. § 213. As noted above, however, the appropriate statute of limitations period for a federal statute is borrowed from an analogous statute, and New York's Human Rights Law and its applicable statute of limitations is the appropriate law here.
Conclusion
The defendants' motion to dismiss is granted. The plaintiff's renewed motion for appointment of counsel is denied. The Clerk of Court shall close the case.SO ORDERED: