Mercedes v. AVA Pork Products Inc.

Filing 19

ORDER granting 13 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the defendant's motion to dismiss the complaint is granted. Plaintiff's complaint is time-barred and fails to state a claim upon which relief can be granted. Accordingly, the complaint is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/8/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-3212 (JFB) (AKT)

_____________________

WAGNER GUERRERO MERCEDES,
Plaintiff,
VERSUS

AVA PORK PRODUCTS, INC.,
Defendant.
___________________
MEMORANDUM AND ORDER
April 8, 2014
___________________

JOSEPH F. BIANCO, District Judge:

claim is untimely because plaintiff failed to
commence this action within ninety days of
receiving a Notice of Right to Sue (“right-tosue letter”) from the Equal Employment
Opportunity
Commission
(“EEOC”).
Moreover, even assuming arguendo that
plaintiff’s complaint was timely, the Court
concludes that the complaint fails to state a
plausible Title VII claim because it is wholly
devoid of any allegation suggesting that
plaintiff was subject to discrimination. Thus,
the complaint must be dismissed under Rule
12(b)(6).

Wagner Guerrero Mercedes (“Mercedes”
or “plaintiff”), proceeding pro se,
commenced this action on May 31, 2013,
against his employer, AVA Pork Products,
Inc. (“AVA” or “defendant”), alleging that
defendant subjected him to racial
discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. (“Title VII”).
Defendant moves to dismiss the
complaint, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, on the
following grounds: (1) plaintiff’s claim is
untimely; and (2) the complaint fails to state
a plausible Title VII claim. For the reasons
discussed below, defendant’s motion to
dismiss is granted. Specifically, plaintiff’s

I. BACKGROUND
A. Facts
The following facts are taken from the
complaint,1 and are not findings of fact by the
case’ (pp. 4–5) in English.” (ECF No. 4.) On June 27,
2013, plaintiff responded by submitting a written
narrative of his allegations in English. (See ECF No.

1

The complaint plaintiff filed on May 31, 2013 was
written in Spanish. (See Compl., ECF No. 1.) By letter
dated June 7, 2013, the Clerk of the Court instructed
plaintiff to “rewrite the section entitled ‘facts of your

1

Court. Instead, the Court will assume the
facts in the complaint to be true and, for
purposes of the pending motion to dismiss,
will construe them in a light most favorable
to plaintiff, the non-moving party.

additional seventy-five cents per hour for all
overtime work. (Id.) However, plaintiff did
not sign the agreement because he thought he
and his coworkers “deserve better.” (Id.)
B. Procedural History

Plaintiff began working for AVA on
October 20, 2008. (Pl.’s Resubmission of
Facts in English, ECF No. 6.) He signed a
contract to work in AVA’s meat department,
according to which he earned a starting salary
of eight dollars per hour, with a twenty-five
cent per hour increase every three months.
(Id.) Plaintiff received the salary increase
during his first year at AVA, but then the
increases stopped. (Id.) After a few months
without a salary increase, plaintiff
complained to AVA, who told him that his
contract had expired. (Id.) At that point,
plaintiff was working more than sixty hours
per week. (Id.)

Plaintiff filed a charge of discrimination
on June 21, 2010 (Compl. ¶ 9), 2 and the
EEOC issued to plaintiff a right-to-sue letter
on February 6, 2013 (Compl. Ex 1).3 Plaintiff
alleges that he received the right-to-sue letter
on February 20, 2013. (Compl. ¶ 12.)
Plaintiff filed the complaint in this action
on May 31, 2013. Accompanying plaintiff’s
complaint was an application to proceed in
forma pauperis, which the Court granted on
July 9, 2013. Defendant filed a motion to
dismiss on October 11, 2013. Plaintiff filed
his opposition to the motion to dismiss on
November 4, 2013. Defendant filed a reply to
plaintiff’s opposition on November 15, 2013.
The Court has fully considered the
submissions of the parties.

On January 4, 2012, AVA attempted to
force all its employees to sign a document
stating that they worked only fifty hours per
week. (Id.) Plaintiff did not sign the
document, but many of his coworkers did.
(Id.)

II. STANDARD OF REVIEW

Sometime in March 2012, plaintiff’s
union provided him with a “contract
ratification sheet” stating that he would
receive four checks between May 1, 2012,
and January 1, 2013, “as progressive
incentive for a total amount of [$]2,300.00.”
(Id.) In addition, plaintiff was to receive a
salary increase of fifty cents per hour on the
anniversary of his start date, plus an

In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to relief

6.) The Court relies on plaintiff’s English allegations
in considering the instant motion.
2
Plaintiff’s complaint does not specify whether he
filed a charge of discrimination with the New York
State Division of Human Rights or the New York City
Commission on Human Rights. (See Compl. ¶ 9.)
3
Plaintiff attached the right-to-sue letter to the
complaint. Thus, the Court may consider this exhibit
in adjudicating defendant’s motion to dismiss. See,

e.g., In re Merrill Lynch & Co., 273 F. Supp. 2d 351,
356–57 (S.D.N.Y. 2003) (explaining that, in
adjudicating a motion to dismiss under Rule 12(b)(6),
the Court may consider, inter alia, “documents
attached to [the complaint] or incorporated in it by
reference”), aff’d in part and rev’d in part on other
grounds sub nom. Lentell v. Merrill Lynch & Co., 396
F.3d 161 (2d Cir. 2005).

2

above the speculative level.’” Operating
Local 649 Annuity Trust Fund v. Smith
Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d
Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.

The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’ to
the complaint and relied upon in it, even if
not attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d at 356–57
(internal citations omitted); see Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
48 (2d Cir. 1991) (“[T]he district court . . .
could have viewed [the documents] on the
motion to dismiss because there was
undisputed notice to plaintiffs of their
contents and they were integral to plaintiffs’
claim.”); Brodeur v. City of New York, No.
04-CV-1859 (JG), 2005 WL 1139908, at *3
(E.D.N.Y. May 13, 2005) (court can consider
documents within the public domain on a
Rule 12(b)(6) motion to dismiss).

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two important
considerations for courts deciding a motion
to dismiss. 556 U.S. 662 (2009). The Court
instructed district courts first to “identify[ ]
pleadings that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679. Though
“legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id. Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Id.
Where, as here, the plaintiff is proceeding
pro se, “[c]ourts are obliged to construe the
pleading of a pro se plaintiff liberally.”
McClusky v. N.Y. State Unified Court Sys.,
No. 10-CV-2144 (JFB)(ETB), 2010 WL
2558624, at *2 (E.D.N.Y. June 17, 2010)
(citing Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008); McEachin
v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff’s complaint, while
liberally interpreted, still must “‘state a claim
to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 F. App’x 60, 61 (2d
Cir. 2010) (quoting Iqbal, 556 U.S. at 678);
see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (applying Twombly and Iqbal to
pro se complaint).

III. DISCUSSION
A. Plaintiff’s Complaint is Time-Barred
Defendant argues that plaintiff’s Title VII
claim should be dismissed due to plaintiff’s
failure to commence this action within ninety
days of receipt of the EEOC right-to-sue
letter. The Court agrees.

Plaintiff clearly filed this action after the
time period allotted by statute. “To maintain
a timely action under 42 U.S.C. § 2000e-5, a
plaintiff
must
comply with
three

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requirements: (1) file a timely charge with the
EEOC, (2) receive an EEOC right-to-sue
letter, and (3) file an action within 90 days of
receipt of that letter.” Collier v. Boymelgreen
Developers, No. 06-CV-5425 (SJ), 2007 WL
1452915, at *2 (E.D.N.Y. May 17, 2007)
(citing Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996));
see also Vincent v. Wal-Mart Store 3420, No.
10-CV-5536 (JFB)(AKT), 2012 WL
3800833, at *5 (E.D.N.Y. Sept. 4, 2012).
These statutory filing periods are “analogous
to . . . statute[s] of limitations,” Van Zant, 80
F.3d at 712, and, as such, “a failure to timely
file a charge acts as a bar to a plaintiff’s
action,” Butts v. N.Y.C. Dep’t of Hous. Pres.
& Dev., No. 00-CV-6307 (KMK), 2007 WL
259937, at *6 (S.D.N.Y. Jan. 29, 2007)
(citing Hill v. Citibank Corp., 312 F. Supp.
2d 464, 472 (S.D.N.Y. 2004)), aff’d sub nom.
Butts v. NYC Dep’t of Hous. Pres. & Dev.,
307 F. App’x 596 (2d Cir. 2009); see also
McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 213–14 (2d Cir. 2006). The period
begins to run for each discrete discriminatory
or retaliatory act when each act occurs. See
Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114 (2002); Hill, 312 F. Supp. 2d
at 472–73; Vincent, 2012 WL 3800833, at *5.

original).) However, plaintiff did not
commence this action until May 31, 2013,
which is one hundred days after February 20,
2013—the date he alleges to have received
the
right-to-sue
letter.
Accordingly,
plaintiff’s complaint was not timely filed.
“A district court may not extend this 90day limitations period ‘by even one day’
unless a ‘recognized equitable consideration’
justifies such an extension.” Jones v. N.Y.C.
Dep’t of Hous., Pres. & Dev., No. 01-CV10619 (AKH), 2002 WL 1339099, at *2
(S.D.N.Y. June 18, 2002) (quoting Johnson
v. A1 Tech Specialties Steel Corp., 731 F.2d
143, 146 (2d Cir. 1984)); see also Pratt v.
Stop & Shop Supermarket Co., LLC, No. 09CV-5417 (JFB)(ETB), 2011 WL 579152, at
*3 (E.D.N.Y. Feb. 9, 2011). It is well-settled
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, 393 (1982). Accordingly,
courts have excused the failure to timely file
an employment discrimination complaint in
court where a plaintiff has received
inadequate notice of his or her obligations or
has been misled by affirmative misconduct of
the defendant. See, e.g., Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984). In addition, the statutory time period
for filing a federal lawsuit has been tolled
during the pendency of an application for the
appointment of pro bono counsel, id. (citing
Harris v. Walgreen’s Distrib. Ctr., 456 F.2d
588 (6th Cir. 1972)), or “where the court has
led the plaintiff to believe that she had done
everything required of her,” id. (citing
Carlile v. S. Routt Sch. Dist. RE 3-J, 652 F.2d
981 (10th Cir. 1981)); see also South v. Saab
Cars USA, Inc., 28 F.3d 9, 11–12 (2d Cir.
1994) (the established equitable grounds
warranting equitable tolling of the ninety-day
limitations period for filing federal

Here, plaintiff’s complaint demonstrates
that plaintiff has failed to meet the third
requirement to maintain a timely Title VII
action; he has not commenced this action
within ninety days of his receipt of the rightto-sue letter. Plaintiff’s complaint alleges that
he received a right-to-sue letter from the
EEOC on February 20, 2013 (Compl. ¶ 12),
and he attached the letter, which is dated
February 6, 2013, to his complaint (Compl.
Ex. 1). The EEOC’s notice clearly warned
plaintiff that he had ninety days to commence
a lawsuit in federal court in the following,
unambiguous language: “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.” (Id. (emphasis in
4

84, 101 (1985); see Carey v. Int’l Bhd. of
Elec. Workers Local 363 Pension Plan, 201
F.3d 44, 48 (2d Cir. 1999) (“[S]tatutes of
limitations are not to be disregarded by courts
out of a vague sympathy for particular
litigants. Indeed, strict adherence to
limitation periods is the best guarantee of
evenhanded administration of the law.”
(internal quotation marks and citations
omitted)); accord Lookingbill v. Cockrell,
293 F.3d 256, 264–65 (5th Cir. 2002)
(rejecting argument that equitable tolling
should apply because petitioner missed
deadline by only four days); Maes v. Chavez,
No. 12-CV-1634-KJM-DAD P, 2013 WL
930604, at *5 (E.D. Cal. Mar. 8, 2013)
(“[T]he fact that petitioner’s pending federal
habeas petition was presented for mailing a
mere five days after the one-year statute of
limitations had expired, does not by itself
provide grounds for equitable tolling.”)
(collecting cases).

employment discrimination claims include
circumstances: (1) “where the claimant has
actively pursued his judicial remedies by
filing a defective pleading during the
statutory period,” (2) “where the claimant has
been induced or tricked by his adversary’s
misconduct into allowing the filing deadline
to pass,” (3) “where the court has led the
plaintiff to believe that she had done all that
was required of her,” (4) “where affirmative
misconduct on the part of the defendant may
have lulled plaintiff into inaction,” (5)
“where the claimant has received inadequate
notice,” and (6) “where a motion for
appointment of counsel is pending.”).
None of these circumstances are present
in the instant case. Plaintiff has neither
alleged any of these circumstances in his
complaint, nor has he raised them in his
opposition to the instant motion. See
Richards v. N. Shore Long Island, No. 10CV-4544, 2011 WL 6102055, at *4
(E.D.N.Y. Dec. 6, 2011) (“Where a plaintiff
fails to raise appropriate equitable
considerations, the ninety day period should
not be tolled and plaintiff’s action should be
dismissed.”). To the extent that plaintiff
argues for equitable tolling on the basis that
his delay in filing was only ten days beyond
the limitations period, this Court has
previously noted that “the standard is not
whether the delay is de minimus, but rather
whether plaintiff acted with reasonable
diligence and [has] proven that his
circumstances were so extraordinary that
equitable tolling should apply.” O’Leary v.
Town of Huntington, No. 11-CV-3754
(JFB)(GRB), 2012 WL 3842567, at *6
(E.D.N.Y. Sept. 5, 2012). As the Supreme
Court has explained, “[f]iling deadlines, like
statute of limitations, necessarily operate
harshly and arbitrarily with respect to
individuals who fall just on the other side of
them, but if the concept of a filing deadline is
to have any content, the deadline must be
enforced.” United States v. Locke, 471 U.S.

Accordingly, the Court concludes that the
plaintiff’s complaint is untimely, and there is
no basis to apply equitable tolling. Given that
plaintiff’s complaint was inexcusably filed
ten days beyond the statutory period, it is
time-barred and is thus dismissed.
B. Plaintiff’s Claims Fail on the Merits
The Court also concludes that, even
assuming arguendo that plaintiff’s claim is
timely, it is not plausible and, thus, cannot
survive a motion to dismiss.
Title VII prohibits employers from
discriminating against an individual on the
basis of “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a). “To
establish a prima facie case of employment
discrimination under Title VII, a plaintiff
must show that ‘(1) he is a member of a
protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse
employment action; and (4) the adverse

5

action took place under circumstances giving
rise to an inference of discrimination.’”
Chang v. N.Y.C. Dep’t for the Aging, No. 11
CIV. 7062 (PAC)(JLC), 2012 WL 1188427,
at *4 (S.D.N.Y. Apr. 10, 2012) (quoting Ruiz
v. Cnty. of Rockland, 609 F.3d 486, 492 (2d
Cir. 2010)), report & recommendation
adopted, 2012 WL 2156800 (S.D.N.Y. June
14, 2012). Even after Twombly and Iqbal, “a
complaint alleging workplace discrimination
need not allege specific facts establishing a
prima facie case of discrimination.”
Thompson v. ABVI Goodwill Servs., 531 F.
App’x 160, 161 (2d Cir. 2013) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002)); see also Pedrosa v. City of New
York, 13-CV-01890 (LGS), 2014 WL 99997,
at *4 (S.D.N.Y. Jan. 9, 2014) (explaining that
courts in this circuit continue to follow
Swierkiewicz’s holding that a plaintiff need
not allege specific facts establishing prima
facie case of employment discrimination to
survive a motion to dismiss). However, “the
pleading must ‘give the defendant fair notice
of what the plaintiff’s claim is and the
grounds upon which it rests.’” Thompson v.
N.Y. State Office of Mental Retardation &
Developmental Disabilities, No. 13-CV-91
(DNH/DEP), 2014 WL 202656, at *3
(N.D.N.Y. Jan. 16, 2014) (quoting
Swierkiewicz, 534 U.S. at 512–15).

antidiscrimination statute. Id. Thus, the
complaint must be dismissed for failure to
state a claim upon which relief can be
granted.
IV. LEAVE TO RE-PLEAD
Although plaintiff has not requested leave
to re-plead his complaint, the Court has
considered whether plaintiff should be given
an opportunity to re-plead his Title VII claim.
Under Rule 15(a) of the Federal Rules of
Civil Procedure, the “court should freely give
leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). However, even
under this liberal standard, this Court finds
that any attempt to amend the pleading in this
case would be futile. As discussed in detail
supra, it is clear from the complaint that
plaintiff does not have any possibility of
asserting a plausible Title VII claim because
his complaint is time-barred. Where any
amendment to the complaint would clearly be
futile, dismissal without leave to re-plead is
appropriate. See, e.g., Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (“The
problem with [plaintiff’s] causes of action is
substantive; better pleading will not cure it.
Repleading would thus be futile. Such a futile
request to replead should be denied.”).

Here, although plaintiff checked off the
box on the complaint form for racial
discrimination under Title VII, the complaint
is “completely devoid of any allegations
whatsoever that plaintiff was subject to
unlawful discrimination.” Pratt, 2011 WL
579152, at *5. Instead, plaintiff’s complaint
and opposition memorandum to defendant’s
motion to dismiss indicate that plaintiff’s
grievance concerns the number of hours he
has worked and his compensation, not
discrimination. This alleged conduct,
“without any allegations that could provide a
plausible claim for discrimination,” is not
cognizable under Title VII or any other
6

V. CONCLUSION
For the reasons stated above, the
defendant’s motion to dismiss the complaint
is granted. Plaintiff’s complaint is timebarred and fails to state a claim upon which
relief can be granted. 4 Accordingly, the
complaint is dismissed with prejudice. The
Clerk of the Court shall enter judgment
accordingly and close this case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 8, 2014
Central Islip, NY

***
Plaintiff proceeds pro se. Defendant is
represented by Joseph Sileo, McNees
Wallace & Nurick LLC, 125 N. Washington
Avenue, Suite 220, Scranton, PA 18503.

As noted supra, plaintiff’s complaint and opposition
to defendant’s motion appear to contain allegations
concerning a dispute between plaintiff, his employer,
and his union regarding his pay. The Court’s dismissal

pertains only to plaintiff’s discrimination claim, and
not to any future claim he may bring in this Court or
any other forum regarding any wage issues.

4

7