Bunting v. Kellogg's Corporation

Filing 62

RULING granting 50 Motion for Summary Judgment. For the foregoing reasons, Kelloggs Motion for Summary Judgment (Doc. No. 50 ) is GRANTED. If Bunting wishes to pursue the state law claim that he raised in his opposition briefs, he may do so by fi ling a motion to amend his Complaint on or beforeFebruary 8, 2019. In this motion, Bunting must set forth sufficient factual allegations to afford Kellogg fair notice of the state law claim that he seeks to bring and the grounds on which this claim i s based. Bunting must attach a proposed Amended Complaint that sets forth this and only this state law claim. See D. Conn. L. Civ. R. 12(a). Because all of Buntings federal law claims have been dismissed, Bunting is reminded that this court may only consider his state law claim if it has diversity jurisdiction. If Bunting files a motion to amend his Complaint, the court will decide at that time whether permitting such an amendment would be proper at this stage of the litigation. Signed by Judge Janet C. Hall on 1/16/2019. (Lewis, D) Modified on 1/16/2019 (Lewis, D).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LENWORTH BUNTING,
Plaintiff,
v.
KELLOGG’S CORPORATION
Defendant.

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CIVIL ACTION NO.
3:17-CV-01445 (JCH)

JANUARY 16, 2019

RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO. 50)
I.

INTRODUCTION
The plaintiff, Lenworth Bunting (“Bunting”), brings claims of harassment,

discrimination, and retaliation against the defendant, Kellogg’s Corporation (“Kellogg”),
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., (“Title
VII”). See Complaint (“Compl.”) (Doc. No. 1) at 1–3. Kellogg now moves for summary
judgment. See Defendant’s Motion for Summary Judgment (“Mot.”) (Doc. No. 50).
Bunting, who is acting pro se, submitted several briefs opposing summary judgment as
to his Title VII claims. See generally Plaintiff’s Memorandum in Opposition to
Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”) (Doc. No. 57); Plaintiff’s Brief
in Opposition to Defendant’s Motion for Summary Judgment (“Pl.’s Sur-Reply”) (Doc.
No. 61). In these opposition papers, Bunting also appears to assert for the first time a
state law claim against Kellogg. See Pl.’s Opp’n at 6–7.
For the reasons set forth below, Kellogg’s Motion for Summary Judgment is
granted. While the court will not address Bunting’s new state law claim because it is not
properly before the court, Bunting may pursue such a claim by filing a motion to amend
his Complaint. Only after Bunting has filed such a motion will the court decide whether
to permit Bunting to amend his Complaint at this stage of the litigation.
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II.

BACKGROUND
Kellogg employed Bunting at its Distribution Center in Newington, Connecticut.

Defendant’s Local Rule 56(a)1 Statement of Facts (“Def.’s L.R. 56(a)1”) (Doc. No. 52) at
¶ 1; Plaintiff’s Local Rule 56(a)2 Statement of Facts (“Pl.’s L.R. 56(a)2”) (Doc. No. 58) at
1, ¶ 1. On October 14, 2015, a physical altercation occurred between Bunting and a coworker, Marcos Cadavid (“Cadavid”), at the Distribution Center. See Def.’s L.R. 56(a)1
¶¶ 13–22; Pl.’s L.R. 56(a)2 at 21, ¶¶ 1–5. Bunting claims that Cadavid sexually
assaulted him by grabbing his chest and bottom. Def.’s L.R. 56(a)1 at ¶ 22; Pl.’s L.R.
56(a)2 at 9, ¶ 22, 21, ¶ 1. Cadavid told Kellogg managers that he accidentally bumped
into Bunting, and that Bunting responded by punching and chocking him. Def.’s L.R.
56(a)1 at ¶ 27; Pl.’s L.R. 56(a)2 at 21, ¶ 5.
On October 19, 2015, Kellogg sent Bunting a letter advising him that his
employment was terminated. Def.’s L.R. 56(a)1 at ¶ 43; Pl.’s L.R. 56(a)2 at 15, ¶ 43;
Defendant’s Exhibit A (“Def.’s Ex. A”) (Doc. No. 52-1) at 107 (Bunting’s employment
termination letter).1 On February 25, 2016, Bunting filed a complaint with the
Connecticut Commission on Human Rights and Opportunities (“CHRO”) that identified
age discrimination, sexual harassment, and retaliation as the basis for his charge of
employment discrimination (“the CHRO Charge”). Def.’s L.R. 56(a)1 at ¶ 45; Pl.’s L.R.
56(a)2 at 16, ¶ 45; Def.’s Ex. A at 135–138 (Bunting’s CHRO Charge). The Equal
Employment Opportunity Commission (“EEOC”) notified Bunting that it had received a

1
Defendant’s Exhibit A (Doc. No. 52-1) contains within it many different exhibits, including, inter
alia, Bunting’s Deposition Transcript, Kellogg’s letter terminating Bunting’s employment, and the CHRO’s
decisions regarding Bunting’s discrimination allegations. For clarity, this Ruling will rely on the page
numbers provided by the court’s electronic filing system when citing to evidence in Defendant’s Exhibit A.

2

copy of his CHRO Charge alleging age discrimination, sex discrimination, and
retaliation. Def.’s L.R. 56(a)1 at ¶ 47; Pl.’s L.R. 56(a)2 at 16, ¶ 47; Def.’s Ex. A at 139
(EEOC letter to Bunting, dated March 31, 2016). The EEOC also informed Bunting that
it would accept and adopt the CHRO’s final findings as its own unless Bunting
requested in writing that the EEOC conduct its own review of Bunting’s Charge within
fifteen days of the date on which Bunting received the CHRO’s notice of its final
findings. Def.’s L.R. 56(a)1 at ¶ 48; Pl.’s L.R. 56(a)2 at 17, ¶ 48; Def.’s Ex. A at 140
(EEOC’s Notice of Right to Request Review).
On March 20, 2017, the CHRO dismissed Bunting’s case, finding that there was
no reasonable cause for believing that Kellogg terminated Bunting’s employment on the
basis of age discrimination, sexual harassment, or retaliation. Def.’s L.R. 56(a)1 at ¶
49; Pl.’s L.R. 56(a)2 at 17, ¶ 49; Def.’s Ex. A at 141–148 (letter notifying Bunting of the
CHRO’s final decision). The CHRO also advised Bunting that he could apply for
reconsideration of the decision. Def.’s Ex. A at 141. Bunting filed a timely request for
reconsideration, which the CHRO denied on August 25, 2017. Plaintiff’s Exhibits (“Pl.’s
Exs.”) (Doc. No. 57-1) at 7–11 (CHRO’s decision on Bunting’s reconsideration request).
The EEOC mailed Bunting a Dismissal and Notice of Rights Letter (“the Right to
Sue Letter”) that was dated May 15, 2017. Def.’s L.R. 56(a)1 at ¶ 52; Pl.’s L.R. 56(a)2
at 18, ¶ 52; Compl. at 9 (EEOC’s Letter of Dismissal and Notice of Rights to Bunting).
This Right to Sue Letter, which Bunting attached to the Complaint that he filed in this
court, notified Bunting that the EEOC had adopted the CHRO’s findings; that the EEOC
was dismissing Bunting’s claims of age discrimination, sexual harassment, and
retaliation; and that Bunting had a right to bring a Title VII suit in federal court. Def.’s

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L.R. 56(a)1 at ¶ 52; Pl.’s L.R. 56(a)2 at 18, ¶ 52; Compl. at 9 (EEOC’s Letter of
Dismissal and Notice of Rights to Bunting). The Right to Sue Letter further noted:
This will be the only notice of dismissal and of your right to sue that we will
send you. You may file a lawsuit against the respondent(s) under federal
law based on this charge in federal or state court. Your lawsuit must be
filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue
based on this charge will be lost. (The time limit for filing suit based on a
claim under state law may be different.)
Compl. at 9 (emphasis in original).
On August 29, 2017, Bunting filed the instant action in this court. See generally
Compl. While his CHRO Charge alleged age discrimination, sexual harassment, and
retaliation, the Complaint that he filed in federal court alleges race discrimination, sexual
harassment, and retaliation. See also Def.’s L.R. 56(a)1 at ¶¶ 45, 47, 54; Pl.’s L.R.
56(a)2 at ¶¶ 45, 47, 54.
III.

STANDARD OF REVIEW
On a motion for summary judgment, the burden is on the moving party to

establish that there are no genuine issues of material fact in dispute and that the party is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986); Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 71–72 (2d Cir. 2016).
Once the moving party has met its burden, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial,” Anderson, 477 U.S. at 256, and
present “such proof as would allow a reasonable juror to return a verdict in [its] favor,”
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). “An issue of fact is
genuine and material if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d
155, 162 (2d Cir. 2016).
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In assessing the record to determine whether there are disputed issues of
material fact, the trial court must “resolve all ambiguities and draw all inferences in favor
of the party against whom summary judgment is sought.” LaFond v. Gen. Physics
Servs. Corp., 50 F.3d 165, 175 (2d Cir. 1995). “Where it is clear that no rational finder
of fact ‘could find in favor of the nonmoving party because the evidence to support its
case is so slight,’ summary judgment should be granted.” F.D.I.C. v. Great Am. Ins.
Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the other hand, where “reasonable
minds could differ as to the import of the evidence,” the question must be left to the
finder of fact. Cortes v. MTA N.Y. City Transit, 802 F.3d 226, 230 (2d Cir. 2015)
(quoting R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)).
IV.

DISCUSSION
Kellogg argues, inter alia, that summary judgment is warranted as to the Title VII

claims that Bunting previously raised in his CHRO Charge (i.e., sexual harassment and
retaliation) because they are time barred. See Def.’s Mem. at 7. Kellogg further argues
that summary judgment is warranted as to Bunting’s remaining Title VII claim (race
discrimination) because Bunting failed to administratively exhaust that claim. See id. at
7–10.
The court will address each of these arguments in turn. It will then consider
Bunting’s state law claim against Kellogg, which Bunting asserts for the first time in his
opposition briefs to Kellogg’s Motion for Summary Judgment. See Pl.’s Opp’n at 6–7.
A.

Title VII Claims of Sexual Harassment and Retaliation

Kellogg argues that summary judgment is warranted as to Bunting’s Title VII
claims of sexual harassment and retaliation. See Def.’s Mem. at 7. More specifically,
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Kellogg argues that these claims, which were dismissed by the CHRO and the EEOC,
are time barred because Bunting did not file his federal lawsuit within 90 days of
receiving the EEOC’s Right to Sue Letter. See id.
It is well established that, “[i]n order to be timely, a claim under Title VII . . . must
be filed within 90 days of the claimant's receipt of a right-to-sue letter.” Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996); see also 42 U.S.C. § 2000e5(f)(1) (“If a charge filed with the Commission . . . is dismissed by the Commission, . . .
the Commission . . . shall so notify the person aggrieved and within ninety days after the
giving of such notice a civil action may be brought against the respondent named in the
charge [ ] by the person claiming to be aggrieved”). Courts in this Circuit have adopted
“a presumption that a notice provided by a government agency was mailed on the date
shown on the notice.” Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d
35, 37 (2d Cir. 2011). “There is a further presumption that a mailed document is
received three days after its mailing.” Id. These presumptions, however, are not
dispositive where “a claimant presents sworn testimony or other admissible evidence
from which it could reasonably be inferred either that the notice was mailed later than its
typewritten date or that it took longer than three days to reach her by mail[.]” Sherlock,
84 F.3d at 526.
Federal courts have strictly enforced Title VII’s 90-day limitations period,
including against pro se litigants. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (dismissing litigant’s Title VII claims as time barred and advising that
“[p]rocedural requirements established by Congress for gaining access to the federal
courts are not to be disregarded by courts out of a vague sympathy for particular

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litigants”); Johnson v. St. Barnabas Nursing Home, 368 F. App'x 246, 247, 248 (2d Cir.
2010) (dismissing pro se litigant’s Title VII suit as untimely because it was filed six days
after her 90-days limitations period expired). However, they have also recognized that
Title VII’s limitations period is subject to equitable tolling “in [the] rare and exceptional
circumstances in which a party is prevented by some extraordinary way from exercising
his rights[.]” Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.
2003) (internal quotation marks, citations, and alterations omitted). “When determining
whether equitable tolling is applicable, a district court must consider whether the person
seeking application of the equitable tolling doctrine (1) has acted with reasonable
diligence during the time period she seeks to have tolled, and (2) has proved that the
circumstances are so extraordinary that the doctrine should apply.” Id. (internal
quotation marks omitted).
Litigants who seek equitable tolling bear the burden of establishing both of these
prongs. Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512
(2d Cir. 2002). With respect to the first prong, the operative inquiry is whether the
plaintiff “acted as diligently as reasonably could have been expected under the
circumstances” throughout the period he seeks to toll. Harper v. Ercole, 648 F.3d 132,
138–39 (2d Cir. 2011) (internal quotation marks and alterations omitted, emphasis in
original); see also Morales v. Berryhill, No. 3:17-CV-0927 (MPS), 2018 WL 3748159, at
*3 (D. Conn. Aug. 7, 2018). The second prong of the equitable tolling test is “met only
where the circumstances that caused a litigant’s delay are both extraordinary and
beyond its control.” Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct.
750, 756 (2016) (emphasis in original); see also Frederick v. JetBlue Airways Corp., 671

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F. App'x 831, 832 (2d Cir. 2016). “Equitable tolling is generally considered appropriate
where the plaintiff actively pursued judicial remedies but filed a defective pleading
during the specified time period; where plaintiff was unaware of his or 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, 333 F.3d at 80 (internal quotation marks and citations omitted). The
Second Circuit has cautioned, however, that equitable tolling does not extend to
“garden variety claim[s] of excusable neglect.” South v. Saab Cars USA, Inc., 28 F.3d
9, 12 (2d Cir. 1994) (internal quotation marks omitted).
In this case, Bunting received a Right to Sue Letter that was dated May 15, 2017.
See Def.’s L.R. 56(a)1 at ¶ 52; Pl.’s L.R. 56(a)2 at 17, ¶ 52; Compl. at 9; Def.’s Ex. A at
97: 22–25. Thus, there is a presumption that the EEOC mailed this Letter on May 15,
and that Bunting received the Letter three days later, i.e., on May 18. Bunting, however,
testified at his Deposition that he did not physically take possession of the Right to Sue
Letter until May 30, 2018. See Def.’s Ex. A at 98: 3–4. Bunting explained that he was
“seldom” at his residential address, instead spending many of his nights sleeping at his
girlfriend’s house, his sister’s house, or in his car. Id. at 99:1–17. Bunting further
testified that he and his wife, who were separated at the time, “never communicated
about the mail,” and that he did not know when the Right to Sue Letter was delivered to
his residential mail box, which he only checked from “[t]ime to time.” Id. at 53:3–13,
98:18–19, 100:3–25.
District courts in this Circuit have “grappled with the question of whether a rightto-sue letter is considered ‘received’ on the date on which it is actually obtained by the

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recipient, or on the date on which it might have been obtained had the recipient
exercised due diligence.” Bennett v. Morgan Stanley & Co., No. 96 CIV. 6071 (AGS),
1997 WL 749364, at *2 (S.D.N.Y. Dec. 4, 1997). In Sousa, the Second Circuit
calculated the limitations period in an employment discrimination suit using the date on
which the pro se plaintiff actually received his right to sue notice (September 10), rather
than the date on which the notice was delivered to the plaintiff’s post office box
(September 5). Sousa v. N.L.R.B., 817 F.2d 10, 10–11 (2d Cir. 1987). However, the
Court also noted that an “unexplained failure to visit a post office box for a long period of
time might result in a different conclusion.” Id. at 11.
In this case, the court need not reach the question of whether Bunting’s delay in
retrieving the Right to Sue Letter from his mailbox was “long” and “unexplained.” Id.
Assuming that Title VII’s limitations period started on May 30, the date on which Bunting
claims he took physical possession of the Right to Sue Letter, Bunting was required to
file his Title VII claims in federal court on or before August 28. Bunting, however, filed
his Complaint on August 29. See Compl. at 6. As noted above, Title VII’s 90-day
limitations period is a strict one. See, supra, at 6–7. Indeed, “in the absence of a
recognized equitable consideration, the court cannot extend the limitations period by
even one day.” Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.
1984) (internal quotation marks omitted); see also Toolan v. Bd. of Educ. of City of New
York, No. 02 CIV. 6989 (DC), 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003)
(dismissing pro se plaintiff’s Title VII claims as time barred because they were filed “only
one day late”).

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Thus, as Bunting has not timely filed his Title VII claims, the court may not
consider those claims unless equitable tolling applies. Bunting, however, has not “met
the extraordinary burden to invoke equitable tolling.” Haygood v. ACM Med. Lab., Inc.,
642 F. App'x 27, 28 (2d Cir. 2016) (internal quotation marks omitted). Bunting offers
only one justification for not filing a timely lawsuit, namely: that he believed that his
application for reconsideration of the CHRO’s decision tolled Title VII’s 90-day
limitations period. See Pl.’s Opp’n at 21. He argues that the EEOC therefore erred by
issuing the Right to Sue Letter before the CHRO had ruled on his request for
reconsideration. See id.
However, Bunting is mistaken in his interpretation of the law. It is true that a
state deferral agency, such as the CHRO, has exclusive jurisdiction of a discrimination
charge for the first 60 days after the charge is filed. Mohasco Corp. v. Silver, 447 U.S.
807, 816 (1980) (“[T]he EEOC could not proceed until either state proceedings had
ended or 60 days had passed[.]”); 42 U.S.C. § 2000e-5(c) (“[N]o charge may be filed
[with the EEOC] by the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State or local law, unless such
proceedings have been earlier terminated[.]”). However, once the deferral agency’s 60day period of exclusive jurisdiction expires, the EEOC may proceed to process the
discrimination charge. See 29 C.F.R. § 1601.13(a)(3)(ii) (“After the expiration of the
exclusive processing period, the Commission may commence processing the allegation
of discrimination.”); see also Mohasco, 447 U.S. at 817 (noting that the EEOC may
begin processing a plaintiff’s complaint after the expiration of the deferral agency’s
period of exclusive jurisdiction). This court has not identified any statutory provisions,

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caselaw, or regulations that would suggest that a pending motion for reconsideration
before the deferral agency extends this period of exclusive jurisdiction beyond 60 days.2
To the contrary, existing regulations expressly authorize the EEOC to commence
processing a discrimination charge after the expiration of the deferral agency’s
exclusive jurisdiction period. See 29 C.F.R. §§ 1601.13(a)(3)(ii), 1601.13(b)(1).
In this case, Bunting filed his discrimination charge with the CHRO on February
25, 2016. Def.’s L.R. 56(a)1 at ¶ 45; Pl.’s L.R. 56(a)2 at 16, ¶ 45; Def.’s Ex. A at 135–
138 (Bunting’s CHRO Charge). The EEOC notified Bunting that his filing constituted a
dual filing with both the EEOC and the CHRO.3 Def.’s Ex. A at 140 (“This notice is to
inform you that the charge to which you are a party, filed with both the Connecticut
Commission on Human Rights and Opportunities (CCHRO) and the federal Equal
Employment Opportunity (EEOC), will be processed by the CCHRO.”). Then, on May
15, 2017, the EEOC dismissed Bunting’s discrimination charge. Def.’s L.R. 56(a)1 at ¶
52; Pl.’s L.R. 56(a)2 at 18, ¶ 52; Compl. at 9 (EEOC’s Letter of Dismissal and Notice of
Rights to Bunting). Because this dismissal occurred more than 60 days after Bunting
initially filed his discrimination charge, the EEOC had jurisdiction to take such an action,
notwithstanding Bunting’s pending motion for reconsideration before the CHRO.
Nor does Bunting’s misapprehension of the law justify the equitable tolling of his
Title VII claims. District courts in this Circuit have regularly denied equitable tolling

2

Indeed, the EEOC regularly dismisses discrimination charges before the deferral agency has
concluded its initial state proceedings. See, e.g., Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1176 (2d
Cir. 1996) (noting without comment that “[t]he EEOC issued a right-to-sue letter on September 2, 1992,”
and that the deferral agency later dismissed the plaintiff’s charges on November 27, 1992).
3

Bunting does not dispute that he filed his discrimination charge with both the EEOC and the

CHRO.

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where the plaintiffs justified their untimely filing of a lawsuit on pending actions before
agencies or state courts. See, e.g., Wallace v. KX Indus., No. 3:98CV02523 (EBB),
1999 WL 1421659, at *1–2 (D. Conn. Dec. 9, 1999) (holding that the pendency of the
plaintiff’s state court appeal of the CHRO’s decision did not toll her Title VII action in
federal court); Gonzalez v. Fedex Co., No. 95 CIV. 3529 (AGS), 1996 WL 346968, at *3
(S.D.N.Y. June 24, 1996) (holding that the plaintiff’s request to the EEOC for
reconsideration of its decision did not toll the 90-day period for filing a federal lawsuit).
Furthermore, the EEOC’s Right to Sue Letter clearly warned Bunting that his Title VII
“lawsuit must be filed WITHIN 90 DAYS of [his] receipt of this notice; or [his] right to
sue based on this charge will be lost.” Compl. at 9 (emphasis in original). Nothing in
this Letter suggests that the start date for the 90-day limitations period depended on
actions pending before the CHRO. Nor can Bunting avoid Title VII’s time bar by arguing
that he subjectively believed that the statutory limitations period began running when
the CHRO ruled on his pending application for reconsideration. In an equitable tolling
analysis, “the operative question is what a reasonable plaintiff would have done, not
what [a] [p]laintiff subjectively felt justified in doing.” Wang v. Palmisano, 157 F. Supp.
3d 306, 322–23 (S.D.N.Y. 2016). Bunting did not “act[ ] as diligently as reasonably
could have been expected under the circumstances” when he ignored the Right to Sue
Letter’s clear instructions to file his federal lawsuit within 90 days of receiving that same
Letter. Harper, 648 F.3d at 138–39 (internal quotation marks and alterations omitted,
emphasis in original). Indeed, nothing in the record suggests that Bunting even
attempted to reach out to the EEOC, CHRO, or others for confirmation that,
notwithstanding the Right to Sue Letter’s contrary instructions, he was correct in his

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belief that the limitations period would be tolled until the CHRO decided his application
for reconsideration.
Moreover, there is no evidence to suggest that the circumstances surrounding
Bunting’s failure to timely file his federal law suit are extraordinary in any way. Bunting
was not prevented from filing his federal action by health problems, mental illness, or
misrepresentations by Kellogg. See Ex. A at 12:1–9 (testifying that he did not have any
health issues or any communication with Kellogg in August 2017, and that he has never
had any mental impairment). Nor did Bunting attempt to file his lawsuit before August
29, 2017, see id. at 60:8–12, even though he received adequate notice of Title VII’s
limitations period through the EEOC’s Right to Sue Letter, see, supra, at 11. The court
also notes that this action is not the first time that Bunting has filed Title VII claims in
federal court. In 2014, Bunting demonstrated his capacity to comply with Title VII’s
limitations period when he filed a timely Title VII lawsuit against Kellogg in connection
with Kellogg’s promotion practices. See Bunting v. Kellogg’s Corporation, No. 3:14-cv621(VAB), Complaint (Doc. No. 1) at 1 & Ruling on Motion for Summary Judgment
(Doc. No. 53-1) at 6 (indicating that Bunting filed his federal lawsuit on May 5, 2014, 90
days after the EEOC issued its right to sue letter on February 4, 2014).
In light of this evidence in the record, no reasonable factfinder could conclude
that equitable tolling applies to Bunting’s action before this court. Accordingly, Kellogg’s
Motion for Summary Judgment as to Bunting’s Title VII claims of sexual harassment
and retaliation is granted on the grounds that these claims are time barred.

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B.

Title VII Claim of Race Discrimination

Kellogg argues that it is entitled summary judgment as to Bunting’s Title VII claim
of race discrimination because Bunting failed to exhaust his administrative remedies
with respect to that claim. See Def.’s Mem. at 7.
As a general rule, “a plaintiff seeking to bring a claim pursuant to . . . Title VII . . .
must exhaust administrative remedies through the EEOC or CHRO.” Soules v.
Connecticut, Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018).
However, [c]laims not raised in an EEOC complaint . . . may be brought in federal court
if they are ‘reasonably related’ to the claim filed with the agency.” Williams v. New York
City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (internal quotation marks omitted).
Importantly, this exception to Title VII’s exhaustion requirement only applies to
unexhausted claims that reasonably relate to claims that have been timely filed by the
plaintiff. See Mathirampuzha v. Potter, 548 F.3d 70, 75 (2d Cir. 2008) (“Although the
general rule is that a Title VII plaintiff may not pursue an unexhausted claim, we will
consider all claims to the extent they are ‘reasonably related’ to those that the plaintiff
did assert in a timely EEOC charge.”). This exception does not apply to unexhausted
claims that reasonably relate to claims that are, themselves, time-barred. See Butts v.
City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1403 (2d Cir. 1993)
(holding that those allegations in the plaintiff’s EEOC charge that were time-barred
could not form the basis for a “reasonably related” claim). In other words, “[t]ime-barred
claims cannot serve as predicates for allegations in the complaint said to be reasonably
related to an EEOC charge.” Wright v. New York City Off-Track Betting Corp., No. 05
CIV. 9790 (WHP), 2008 WL 762196, at *3 (S.D.N.Y. Mar. 24, 2008) (internal quotation
marks omitted).
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In this case, it is undisputed that, while Bunting included his Title VII race
discrimination claim in the Complaint that he filed in this court, he did not allege this
claim in the CHRO Charge. Def.’s L.R. 56(a)1 at ¶¶ 45, 46; Pl.’s L.R. 56(a)2 at 15, ¶
45, 16, ¶ 46.4 Bunting therefore did not exhaust his administrative remedies with
respect to his race discrimination claim.
Furthermore, even assuming that this claim was “reasonably related” to the
claims that Bunting included in his CHRO Charge, it would be dismissed because, as
discussed above, the claims that Bunting asserts in his CHRO Charge are time barred.
See, supra, at 6–14.
For these reasons, Kellogg is entitled to summary judgment as to Bunting’s Title
VII claim of race discrimination.
C.

State Law Claim

In his opposition papers to Kellogg’s Motion for Summary Judgment, Bunting
appears to assert a state law tort claim against Kellogg. See Pl.’s Opp’n at 6–7.
Specifically, Bunting writes that he is “alleging Unjust Termination to Employment”
pursuant to section 1332 of title 28 of the United States Code, the principal statute
governing diversity jurisdiction. Id. He further asserts that “[t]he CHRO did not rule on
the Unjust [T]ermination complaint” because “[t]hat jurisdiction belong [sic] to the District
Court.” Id. at 21. Construed liberally, Bunting’s pro se opposition briefs appear to
assert some type of tort claim under Connecticut law, perhaps for wrongful termination.
Shanks v. Walker, 116 F. Supp. 2d 311, 313–14 (D. Conn. 2000) (noting that

4

If Bunting had alleged a race discrimination claim in the CHRO Charge, then that claim would
be time barred for the same reasons that Bunting’s Title VII claims of sexual harassment and retaliation
are time barred. See, supra, at 6–14.

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Connecticut’s wrongful termination doctrine carves out a “narrow exception” to “the rule
that an employee hired for an indefinite period is dischargeable at the will of his
employer.”) (internal quotation marks omitted).
However, the court will not consider such claims because they are being raise for
the first time in Bunting’s opposition papers. It is well established that “[a] party may not
use his or her opposition to a dispositive motion as a means to amend the complaint.”
Shah v. Helen Hayes Hosp., 252 Fed.Appx. 364, 366 (2d Cir.2007). Even a pro se
plaintiff must set forth his “claim[s] . . . in the pleadings, in order to give defendants fair
notice of the nature of the plaintiff’s claim[s].” Thomas v. Egan, 1 F. App'x 52, 54 (2d
Cir. 2001) Bunting did not assert any state law claims in his Complaint, which, instead,
only advises Kellogg of Bunting’s Title VII claims. See Lyddy v. Bridgeport Bd. of Educ.,
No. 3:06CV1420 AHN, 2007 WL 2697452, at *3 n.3 (D. Conn. Sept. 11, 2007)
(“Although the court must . . . liberally construe a complaint, this does not mean that it
must construe a complaint to include a claim that is not pleaded.”) (internal citations
omitted). It is therefore “inappropriate [for Bunting] to raise [such] claims for the first
time in submissions in opposition to a summary judgment motion.” Thomas, 1 F. App'x
at 54.
If Bunting wishes to pursue a state law tort claim, he may file a motion to amend
his Complaint to add such a claim. Id. (“Ordinarily, a district court presented with such a
situation could grant plaintiff leave to amend her complaint, incorporating these new
claims.”). Only at that time will the court consider whether it would be proper under
Federal Rule of Civil Procedure 15 to permit Bunting to amend his Complaint at this
stage of the litigation.

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V.

CONCLUSION
For the foregoing reasons, Kellogg’s Motion for Summary Judgment (Doc. No.

50) is GRANTED. If Bunting wishes to pursue the state law claim that he raised in his
opposition briefs, he may do so by filing a motion to amend his Complaint on or before
February 8, 2019. In this motion, Bunting must set forth sufficient factual allegations to
afford Kellogg fair notice of the state law claim that he seeks to bring and the grounds
on which this claim is based. Bunting must attach a proposed Amended Complaint that
sets forth this and only this state law claim. See D. Conn. L. Civ. R. 12(a). Because all
of Bunting’s federal law claims have been dismissed, Bunting is reminded that this court
may only consider his state law claim if it has diversity jurisdiction. If Bunting files a
motion to amend his Complaint, the court will decide at that time whether permitting
such an amendment would be proper at this stage of the litigation.
SO ORDERED.
Dated at New Haven, Connecticut this 16th day of January, 2019.

/s/ Janet C. Hall__
Janet C. Hall
United States District Judge

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