Opinion
02 Civ. 7382 (LAK)
October 14, 2003
ORDER
What survives of this case are the first, third and sixth claims for relief. Defendants move to dismiss or, in the alternative, summary judgment dismissing them. Plaintiff has filed a Rule 56(f) affidavit seeking a continuance of the motion only insofar as it is addressed to the first claim for relief. Rumelt 56(f) Decl. ¶ 10.
1. The first claim for relief asserts that plaintiff was an employee of defendants The Council on the Environment of New York City and Council on the Environment, Inc. (collectively the "Council Defendants") from 1983 until June 30, 1998 and that he worked a great deal more than 40 hours per week in that period. He seeks recovery, under Section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) (the "FSLA"), and Sections 653 and 665 of the New York Labor Law, at the rate of time and a half for the hours worked in excess of 40 per week. Defendants seek dismissal on the ground that the claim is barred by the statute of limitations.
Claims for unpaid overtime wages under the FLSA accrue at the end of each pay period. An action to recover for a given pay period must be commenced within two years of the date of accrual except for willful violations, in respect of which claims must be commenced within three years. 29 U.S.C. § 255(a). As plaintiff's most recent claim for unpaid overtime wages accrued no later than June 30, 1998, more than three years prior to the commencement of this action on September 13, 2002, the claim is barred unless plaintiff has created a genuine issue of material fact with respect to equitable tolling.
The first amended complaint makes three allegations in support of the equitable tolling claim, viz. Council Defendants knowingly and wilfully misled plaintiff regarding his status as an employee and his entitlement to overtime pay and failed to post information required by 29 U.S.C. § 211, 29 C.F.R. § 516.4 and 12 N.Y.C.R.R. § 142-2.8. Am Cpt ¶¶ 83-85. It says nothing, however, about when and how defendants allegedly misled plaintiff. Plaintiff's declaration states only that the defendants never informed him that, as an employee, he was entitled to overtime pay for hours in excess of forty per week and that the Council on the Environment, Inc. did not post any information concerning an employee's statutory right to overtime pay until on or around September 15, 2000. Patraker Decl. ¶¶ 13-14. It is undisputed also that in or around May or June 1998, plaintiff asked an attorney to assist him in reviewing a proposed employment agreement that he had received from the Council Defendants. Id. ¶ 17; Def. 56.1 St. ¶ 6; Pl. 56.1 So. ¶ 6.
The Court assumes that equitable tolling would be available in an appropriate case with respect to the limitations period under the FLSA. The doctrine, however, is exceedingly narrow. As the Court of Appeals wrote in Johnson v. Nyack Hospital, 86 F.3d 8, 11 (2d Cir. 1996):
Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances. Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 264 (2d Cir. 1990). This Court has applied the doctrine "as a matter of fairness" where a plaintiff has been "prevented in some extraordinary way from exercising his rights, or h[as] asserted his rights in the wrong forum." Miller v. International Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). * * *
Equitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled. See Dodds v. Cigna Sees., Inc., 12 F.3d 346, 350 (2d Cir. 1993) (equitable tolling will stay running of statutory period "only so long as the plaintiff has exercised reasonable care and diligence" (internal quotation marks omitted)), cert. denied, 511 U.S. 1019, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994); Bowers, 901 F.2d at 264 (equitable tolling not satisfied in the absence of "affirmative action on the part of [plaintiff] to preserve its right"); accord Singletary v. Continental Illinois Nat'l Bank Trust Co., 9 F.3d 1236, 1241 (7th Cir. 1993) (equitable tolling "permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before").
Here, plaintiff has not alleged, either in the amended complaint or in his declaration, any affirmative deception by the defendants. He complains only that the defendants never told him that he was entitled to overtime pay. There is nothing extraordinary about that. Indeed, to hold that a failure to disclose that an employee is entitled to overtime pay is sufficient to work an equitable toll would be tantamount to holding that the statute is tolled in all or substantially all cases seeking unpaid overtime, as it would be a rare employer who failed to pay overtime but announced to its employees that they were entitled to overtime compensation.
The alleged failure to post a notice stands plaintiff in no better stead. To be sure, Section 516.4 of 29 C.F.R. provides in relevant part: "Every employer employing any employees subject to the Act's minimum wage provisions shall post and keep posted a notice explaining the Act, as prescribed by the Wage and Hour Division, in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy." And the Court assumes that the failure to post that notice, in other circumstances, might result in equitable tolling. But not here.
In this case, plaintiff retained an attorney in the spring of 1998 to advise him regarding his proposed employment contract with defendants which included, among other things, his post-July 1, 1998 compensation. Patraker Aff. ¶ 6. Once he did so, any failure to post the required notice became immaterial. See, e.g., Keyse v. California Texas Oil Corp., 590 F.2d 45, 47-48 (2d Cir. 1978) (tolling inappropriate where plaintiff represented by counsel); Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109-10 (2d Cir. 1978) (tolling inappropriate, despite failure to post notice of rights under Title VII, where plaintiff retained attorney during limitations period and thus "had access to a means of acquiring knowledge of his rights"); Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1213 (7th Cir. 1993) (failure to post ADEA notice tolls statute until plaintiff hires attorney); Stallcop v. Kaiser Founds. Hasps., 820 F.2d 1044, 1050 (9th Cir.), cert. denied, 484 U.S. 986 (1987) (no equitable tolling where plaintiff consulted counsel during period). This is no more than a common sense application of the basic principles that equitable tolling is reserved for situations in which "a plaintiff has been `prevented in some extraordinary way from exercising his rights'" and that it is available "only so long as the plaintiff has exercised reasonable care and diligence." Once the plaintiff hired a lawyer to advise him concerning his employment situation, the means of knowledge of his rights were at his disposal. Surely he knew that he had been working more than forty hours a week for over 15 years. If he failed to ask the attorney his rights in that circumstances, he cannot be said to have acted with due diligence. He cannot hide behind the allegedly limited scope of his retainer of the attorney for the simple reason that the limitation of the scope reflects his own lack of due diligence. The FSLA claim therefore will be dismissed.
2. Plaintiff's claim of retaliation under Section 510 of ERISA, 29 U.S.C. § 1140, his third claim for relief, has undergone a substantial change. The first amended complaint alleged that plaintiff applied for benefits on May 31, 2002 and was told less than a month later that he would be terminated on June 30, 2002. Am Cpt ¶¶ 98-100. He now asserts that on or about September 12, 2001, his lawyer wrote to the Pension and Welfare Benefits Administration to solicit an investigation of the Plan, that a copy of this letter was sent to the Council Defendants, and that this letter was "the `last straw' in the decision to terminate" him. Patraker Decl. ¶¶ 25-28.
Section 510 of ERISA provides in relevant part:
"It shall be unlawful for any person to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."
In order to prevail on a Section 510 claim, the plaintiff must demonstrate that an employer, in taking adverse employment action against the employee, "was at least in part motivated by the specific intent to engage in activity prohibited by § 510." Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988). In the context of this case, plaintiff must come forward with admissible evidence that his termination in 2002 was motivated at least in part by a specific intent "to discharge, fine, suspend, expel, discipline or discriminate against" him "for exercising any right to which he is entitled under the provisions of the Plan "or for the purpose of interfering with the attainment of any right to which" he might have become entitled.
The September 12, 2001 letter (McLauglin Supp. Decl. Ex. B) post-dated plaintiff's entry into an employment contract with the Council on the Environment, Inc. and related to an alleged failure to give him and Anthony Manetta, both of whom were represented by the same attorney, full credit for prior service for vesting purposes and to make appropriate contributions. Inasmuch as the Council, in November 2001, acquiesced in plaintiff's position in order to resolve this dispute with both plaintiff and Manetta and then, in January 2002, extended Manetta's employment contract for an additional four year term, McLaughlin Decl. ¶¶ 8-9, it seems unlikely that plaintiff will prevail on this claim. Nevertheless, there is a genuine issue of material fact as to whether plaintiff's assertion that he was entitled to prior service credit for vesting purposes under the Plan played a part in the decision to terminate him. Accordingly, the motion for summary judgment dismissing the ERISA retaliation claim is denied.
3. The question remains whether so much of the first claim for relief as seeks overtime compensation for the 1983-1998 period under state law as well as the sixth claim for relief, a state law breach of contract claim, ought to be retained here.
Section 1367(a) of the Judicial Code, as amended, 28 U.S.C. § 1367(a), which defines the scope of a district court's power to decide a claim, codifies the preexisting holding of the Supreme Court in the Gibbs case. IUEAFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 n. 2 (2d Cir. 1993); Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir. 1991), cert. denied, 502 U.S. 1060 (1992); Smylis v. City of New York, 983 F. Supp. 478, 483 (S.D.N.Y. 1997); 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D § 3567.1 (Supp. 2002). A court thus has the power to exercise supplemental jurisdiction over state claims if they derive from "a . . . nucleus of operative fact" common to the jurisdiction-conferring claim and if they "are such that [the claimant] would ordinarily be expected to try them all in one judicial proceeding. . . ."
United Mine Workers v. Gibbs, 383 U.S. 715 (1996).
Promisel, 943 F.2d at 254 (quoting United Mine Workers, 383 U.S. at 725-26) (internal quotation marks omitted); see, e.g., Kirschner v. Klemons, 225 F.2d 227, 239 (2d Cir. 2000) (holding that the court has supplemental jurisdiction over plaintiff's state law claims because they emanate from "the same set of facts that give rise to an anchoring federal question claim").
Plaintiff s only remaining federal claim is the contention that his employment was terminated as of June 30, 2002 in retaliation for his September 12, 2001 complaint to the PWBA. The state law claim embraced in the first claim for relief is that he was not paid overtime at the rate of time and a half, as allegedly required by state law, during the period 1983-1998. The contract claim asserted in the sixth claim for relief is that the defendants wrongfully failed to pay him severance, the value of unused vacation, sick, personal and holiday days, and the cost of maintaining his life and health insurance when they terminated him in 2002.
Clearly, the state law claim within the first claim for relief does not arise from a common nucleus of operative fact as the retaliation claim. The same cannot be said of the sixth claim
Accordingly, defendants' motion for summary judgment dismissing the remainder of the first amended complaint is granted to the extent that the first claim for relief is dismissed, the Fair Labor Standards Act claim on the merits and the state law claim based on the same allegations for lack of subject matter jurisdiction. It is denied in all other respects.
SO ORDERED.