Kirkwood v. Buffalo & Erie Cnty. Naval & Military Park

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EDWARD B. KIRKWOOD, Plaintiff, v. BUFFALO & ERIE COUNTY NAVAL & MILITARY PARK, et al., Defendants.

No. 22-CV-703-LJV

United States District Court, W.D. New York

August 3, 2023

DECISION & ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

On September 16, 2022, the pro se plaintiff, Edward Kirkwood, commenced this action against the Buffalo &amp Erie County Naval & Military Park (“Buffalo Naval Park”) and Paul Marzello, a Buffalo Naval Park employee. Docket Item 1. He raises claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with Disabilities Act of 1990 (“ADA”), and the New York State Human Rights Law (“NYSHRL”). Id.

On January 20, 2023, the defendants moved to dismiss the complaint on the grounds that Kirkwood's claims are time barred. Docket Item 7. On January 25, 2023, Kirkwood filed a “notice to respon[d],” Docket Item 10, and on February 23, 2023, the defendants replied in further support of the motion to dismiss, Docket Item 12. Kirkwood then filed another response to the motion to dismiss, Docket Items 13-14, and on March 16, 2023, the defendants again replied in further support of the motion to dismiss, Docket Item 17. Kirkwood then filed two additional responses to the motion to dismiss, Docket Items 18 and 19, as well as “evidence of retaliation,” Docket Item 20.

For the reasons that follow, the defendants' motion to dismiss will be granted unless Kirkwood files an amended complaint or otherwise demonstrates either that his claims are not time barred or that for some reason this Court can consider his untimely claims.

FACTUAL BACKGROUND^[1]

Kirkwood worked at Buffalo Naval Park from 1987 until he was fired in May 2019. Docket Item 1 at 10-13. He says that during his time there, he was subjected to “neglect, racism, and numerous other illegal and immoral practices.” Id. at 10.

For example, Kirkwood says that in December 2017, he was “put in charge of most of the responsibilities” in connection with a “party for the commissioning of the new Little Rock” ship.^[2] Id. at 10. “Many of the white employees at the [Buffalo] Naval Park referred to it as a ‘whites only' [p]arty.” Id. Kirkwood was not “allowed to bring guests []on the ship, despite numerous other white employees being able to.” Id. “By the end of the party a derogatory term was written on one of the museum's bathroom stalls.” Id. Kirkwood was asked to clean that stall “nearly a year later” because “there was going to be an investigation” and Kirkwood's supervisor, John Branning, “didn't want it to affect [Buffalo Naval] Park's image.” Id. Branning “was the perpetrator behind most of the acts taken during and pertaining to this party.” Id.

After the investigation concluded in October 2018, Kirkwood was “forced [] to sign a document [that he] was unable to read by [himself]” because of a “learning disability.” Id. Although he “request[ed] a reading assistant for the document, [he] was told [that] if [he] didn't sign” the document, he “would no longer have a job.” Id. Kirkwood also “was unable to seek any legal counsel” before signing the document. Id. Kirkwood's coworkers were “completely aware of [his] learning disability and took advantage of it to get what they wanted.” Id.

Kirkwood also faced several “unsafe working condition[s]” at Buffalo Naval Park. Id. at 11. On one occasion, Branning “made [Kirkwood] clean asbestos without any equipment or training.” Id. Kirkwood had to “buy [his] own [equipment] with the promise of a refund, which was only pa[id] in half with Canadian money.” Id. He also “was forced to work parties where children were exposed to drinking.” Id.

Kirkwood suffered several work-related injuries at Buffalo Naval Park as well. See id. On October 19, 2017, for example, he “slipped in the showers at work and ended up breaking one of [his] toes.” Id. But Branning “would not let [Kirkwood] take any time off” after that injury. Id.

About a year-and-a-half later, on March 27, 2019, Kirkwood “fell through the floorboards on the submarine” at Buffalo Naval Park. Id. “Multiple employees, including [Branning,] saw [Kirkwood] fall,” but no one “filed an accident report.” Id. On April 30, 2019, Kirkwood had to “call off of work” because of the injury. Id. And “[o]n the weekend after April 30[, 2019]” Kirkwood “was feeling very ill still and could not work” at an “unscheduled party” at Buffalo Naval Park. Id. at 8.

Although Kirkwood saw a doctor after his March 2019 injury and provided a doctor's note to Buffalo Naval Park, id. at 8, Marzello “refused to look at [his] doctor's” note, id. at 11. On May 6, 2019, Kirkwood was fired. Id. Kirkwood was told he was fired “for not calling in” sick, “even though [he] called in beforehand.” Id. at 8. Buffalo Naval Park then “lied about the day [Kirkwood] was fired in order to make sure [he] did not receive unemployment benefits.” Id. at 11.

The day after he was fired, Kirkwood contacted the EEOC. See Docket Item 10 at 2. Shortly after that, he “received [F]orm 290A,” which he then completed and “hand delivered to [the] Buffalo local office” of the EEOC on May 14, 2019. Id. After Kirkwood submitted the completed form, the EEOC “start[ed] to ignore [him],” and he “was told to keep in mind that the [EEOC] process takes time.” Id.

In August 2021, Kirkwood filed a discrimination complaint with the NYSDHR,^[3]see Docket Item 7-4; Docket Item 13 at 7, and on December 16, 2021, he filed a charge of discrimination with the EEOC, see Docket Item 7-2. The NYSDHR and the EEOC both dismissed Kirkwood's claims as untimely. See Docket Item 7-3; Docket Item 7-5.

LEGAL PRINCIPLES

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

DISCUSSION

I. TIMELINESS

“Plaintiffs asserting claims under Title VII, the ADEA, or the ADA must first file a complaint with the [EEOC] or an equivalent state agency within 300 days of the allegedly discriminatory action.” Gindi v. N.Y.C. Dep't of Educ., 786 Fed.Appx. 280, 282 (2d Cir. 2019) (summary order); see 42 U.S.C. § 12117(a) (ADA); 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA); see also Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (“As for the permissible temporal scope of a federal claim of employment discrimination, generally if the plaintiff has initially filed an administrative claim in a state whose laws prohibit such discrimination, the limitations period for filing an action is 300 days after the alleged unlawful practice.”). “A claim under each of these three statutes is time[ ]barred if the plaintiff does not” do so. Verne v. N.Y.C. Dep't of Educ., 2022 WL 4626533, at *6 (S.D.N.Y. Sept. 30, 2022); see Jiles v. Rochester Genesee Reg'l Transp. Auth., 217 F.Supp.3d 688, 691 (W.D.N.Y. 2016) (“The statutory filing period operates as a statute of limitations; therefore, the failure to file an administrative complaint within the required time period will bar a plaintiff's action.”).^[4]

Kirkwood filed a complaint with the NYSDHR in August 2021 and a charge of discrimination with the EEOC on December 16, 2021.^[5] Docket Item 7-2; Docket Item 7-4.

Because “a complaint filed with the NYSDHR is considered to be cross-filed with the EEOC,” Jiles, 217 F.Supp.3d at 691 (citation and internal quotation marks omitted), Kirkwood's claims would be timely if they relate to conduct that occurred no more than 300 days before he filed his August 2021 complaint with the NYSDHR. See Pearson v. City of New York, 2022 WL 4569476, at *3 (S.D.N.Y. Sept. 29, 2022) (using “the date of filing with the NYSDHR [as] the date of filing with the EEOC for purposes of the statute of limitations”); Docket Item 7-4 at 7 (Kirkwood's NYSDHR complaint, which notes that Kirkwood “underst[ood] that [he was] also filing [his] employment complaint with the [EEOC] under the [ADA], Title VII . . ., and[] the [ADEA]”). But Kirkwood's claims all relate to conduct that occurred before or when his employment was terminated in May 2019 and therefore more than two years before he filed his NYSDHR complaint. And for that reason, those claims appear to be time barred. See Gindi, 786 Fed.Appx. at 282.

Kirkwood maintains that his claims nevertheless are timely because he submitted Form 290A to the EEOC in May 2019. See Docket Item 10 at 2; Docket Item 13 at 2. But Form 290A is not a charge of discrimination, and Kirkwood's submission of that form does not make his claim timely. And a Supreme Court case finding that another type of form was such a charge illustrates the point.

In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme Court considered whether an “intake questionnaire” that a plaintiff completed and filed with the EEOC was a charge of discrimination sufficient under the ADEA. See id. at 395-96. The Court concluded that the completed form was a charge of discrimination because it provided “the information required by the regulations” and could be “reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the...