Labor & Employment Law

Arbitration does not toll requirement to administratively file charge of discrimination within 300 days

McAllister v. Queens Borough Pub. Library, ___F.3d___(2d Cir. Feb. 10, 2009), is an important, but unreported employment discrimination case. The plaintiffs ADA claim was dismissed because it was not timely filed within 300 days of his termination. The fact that an arbitration was pending did not toll the statute of limitations. Additionally, the court rejected plaintiff's claim of retaliation. Though this decision is quite short, it does contain a nice summary of the applicable law as follows:

"We agree with the District Court that McAllister?s discrimination claim was timebarred because McAllister first filed an administrative complaint with the New York State Division of Human Rights more than 300 days after his termination, the only alleged act of discrimination. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999).

"McAllister argues that he was entitled to wait to file his administrative charge until he learned his termination was discriminatory, but no such tolling exists given the facts as McAllister alleges them. See Miller v. Int?l Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985). Nor did the pendency of an arbitration proceeding toll the time limit. See Delaware State Coll. v. Ricks, 449 U.S. 250, 261 (1980).

"McAllister failed to state a claim for retaliation because the only adverse employment action by his employer that McAllister alleges is his termination, which occurred before his protected activity, filing a charge with the administrative agency. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (stating requirements for a prima facie case of retaliation including alleging facts that demonstrate a causal connection between the alleged adverse action and the protected activity).

"To the extent McAllister?s retaliation claim is based on the conduct of his union at his arbitration, he failed to exhaust this claim by filing an administrative complaint. See 41 U.S.C. § 12117(a) (adopting Title VII procedures for ADA claims); Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001) (describing Title VII?s exhaustion requirement)."

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on March 11, 2009 (boomark / email).