Kirkwood v. Buffalo & Erie County Naval & Military Park

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDWARD B. KIRKWOOD,

Plaintiff,

22-CV-703-LJV

v. DECISION & ORDER

BUFFALO & ERIE COUNTY NAVAL &

MILITARY PARK, et al.,

Defendants.

On September 16, 2022, the pro se plaintiff, Edward Kirkwood, commenced this

action against the Buffalo & 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 BACKGROUND1

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

1 Unless otherwise noted, the following facts are taken from the complaint,

Docket Item 1. On a motion to dismiss under Rule 12(b)(6), the Court “accept[s] all

factual allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.”

Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d

Cir. 2016).

The parties also have submitted Kirkwood’s charge of discrimination with the

United States Equal Employment Opportunity Commission (“EEOC”), his complaint with

the New York State Division of Human Rights (“NYSDHR”), and other documents from

Kirkwood’s interactions with the EEOC and NYSDHR. See Docket Item 1 at 7; Docket

Item 7-2; Docket Item 7-3; Docket Item 7-4; Docket Item 7-5; Docket Item 10 at 4-10.

Because those documents are subject to judicial notice, the Court considers them in

deciding this motion. See, e.g., Zabar v. N.Y.C. Dep’t of Educ., 2020 WL 2423450, at

*2 n.4 (S.D.N.Y. May 12, 2020) (collecting cases finding that “a court may take judicial

notice of the records and reports of [] relevant administrative bodies” in cases “where

exhaustion of administrative remedies is a prerequisite to bringing suit”).

2 Kirkwood also alleges that he was discriminated against in December 2015

because his “personnel evaluation did not start until [then],” which “do[es] not match

[his] history.” Docket Item 1 at 3-4.

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

3 Kirkwood apparently signed that complaint on August 10, 2021, and it was

received by the NYSDHR two days later. See Docket Item 7-4 at 3, 7. As discussed

below, Kirkwood’s claims appear to be untimely regardless of whether he filed his

complaint on August 10 or August 12.

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 F. App’x 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

Kirkwood also apparently filed a second complaint with the NYSDHR in May

2022. Docket Item 10 at 9. Because that complaint was filed after his first NYSDHR

complaint and his EEOC charge, it does not affect the timeliness of his claims.

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 “While discrete claims of discrimination and retaliation must be brought within

the 300-day limitations period to be actionable, a different rule applies with regard to

hostile work environment claims.” Zoulas v. N.Y.C. Dep’t of Educ., 400 F. Supp. 3d 25,

50 (S.D.N.Y. 2019). For those claims, “the entire time period of the hostile environment

may be considered by a court for the purposes of determining liability” so long as “any

act contributing to the hostile work environment claim falls within the 300-day period.”

Id. But because Kirkwood challenges conduct that occurred in 2019 at the latest, the

“different rule” that applies to hostile work environment claims does not render his

claims timely.

5 The NYSDHR complaint indicates that Kirkwood signed the complaint on

August 10, 2021, and that the NYSDHR marked the complaint as “received” two days

later. See Docket Item 7-4 at 3, 7. Because Kirkwood’s federal claims challenge

conduct that occurred far more than 300 days before either August 10, 2021, or August

12, 2021, the Court need not pinpoint the precise date on which Kirkwood filed his

NYSDHR complaint. See Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575,

579 (2d Cir. 2020) (summary order) (declining to resolve “whether [a] charge is ‘filed’ on

the date that the plaintiff faxes the complaint to the EEOC or on the date that the EEOC

officially stamps the complaint ‘received’” because the plaintiff’s “claims accrued well

outside the limitations window” either way); but see Pearson v. City of New York, 2021

WL 2894776, at *4 (S.D.N.Y. July 9, 2021) (noting that “[d]istrict courts in this Circuit[]

routinely hold” that a charge is filed when it is stamped “received” and using the date the

“administrative charge was stamped as received by the [NYSDHR]” as the “operative

date of ‘filing’”). And while Kirkwood alleges in his complaint that he filed his NYSDHR

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 F. App’x 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

complaint on August 12, 2020, Docket Item 1 at 3, that appears to be a typo based on

the documents cited above. In any event, Kirkwood’s federal claims all relate to

conduct that occurred more than 300 days before August 12, 2020.

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 employee.” Id. at

402. In other words, the Court held that a plaintiff files a charge of discrimination when,

“from the standpoint of an objective observer,” the plaintiff’s filing asks “the agency to

activate its machinery and remedial processes.” Id. Although the Court in Holowecki

decided only the timeliness of the plaintiff’s ADEA claim, courts have applied Holowecki

in evaluating the timeliness of ADA and Title VII claims as well. See, e.g., Brown v. City

of New York, 2013 WL 3789091, at *7-9 (S.D.N.Y. July 19, 2013); Price v. City of New

York, 797 F. Supp. 2d 219, 224-26 (E.D.N.Y. 2011).6

Kirkwood did not file an intake questionnaire like the one in Holowecki; instead,

he completed Form 290A, a “pre-charge inquiry.” See Docket Item 10 at 5-7. Other

courts have concluded that Form 290A is not a formal charge of discrimination within

the meaning of Holowecki. See, e.g., Kindred v. Memphis Light Gas & Water, 2021 WL

6752163, at *5 (W.D. Tenn. Dec. 6, 2021), adopted, 2022 WL 989478 (W.D. Tenn. Mar.

31, 2022), aff’d, 2023 WL 3158951 (6th Cir. Feb. 27, 2023); Herrera v. Di Meo Bros.,

Inc., 529 F. Supp. 3d 819, 827-28 (N.D. Ill. 2021). And this Court agrees.

6 In Holowecki, the Supreme Court cautioned that “employees and their counsel

must be careful not to apply rules applicable under one statute” within EEOC jurisdiction

“to a different statute” involving the EEOC “without careful and critical examination.”

Holowecki, 552 U.S. at 393. But as mentioned above, other courts have looked to

Holowecki to evaluate the sufficiency of a charge of discrimination under the ADA and

Title VII. See, e.g., Price, 797 F. Supp. 2d at 224-26 (comparing “the regulations that

apply to both the ADA and Title VII” with “the ADEA regulations at issue in Holowecki”

before concluding that “the permissive standard announced in Holowecki appl[ies]

here”). This Court therefore applies Holowecki in deciding whether Kirkwood’s

completed Form 290A was a charge of discrimination for each of his federal claims.

First, unlike the completed form in Holowecki, Form 290A is not a charge of

discrimination because it cannot be “reasonably construed as a request for the [EEOC]

to take remedial action.” Holowecki, 552 U.S. at 402. Indeed, Form 290A includes

several explicit warnings—repeated on the bottom of each page—that it is “not a charge

of discrimination.” See, e.g., Docket Item 10 at 5 (warning that “THIS PRE-CHARGE

INQUIRY IS NOT A CHARGE OF DISCRIMINATION” (emphasis in original)).

Moreover, the form explicitly advises anyone completing it that he or she still “must file a

charge of job discrimination within 180 days from the day [he or she] knew about the

discrimination, or within 300 days from the day [he or she] knew about the

discrimination if the employer is located where a state or local government agency

enforces job discrimination laws on the same basis as the EEOC’s laws.” Id. To

underscore the point, Form 290A advises that if the person completing the form “would

like to file a charge of discrimination immediately, [he or she should] contact the EEOC

office on the cover letter.” Id. Finally, Form 290A notes that its “principal purpose” is “to

solicit information about claims of employment discrimination, determine whether the

EEOC has jurisdiction over those claims, and provide charge counseling, if appropriate.”

Id.

“In Holowecki, the Supreme Court explained that similar language included in the

intake-questionnaire form used by the EEOC in 2001 did not ‘give rise to the inference

that the employee requests action against the employer’ and ‘in fact suggested the

opposite: that the form’s purpose was to facilitate pre[-]charge filing counseling and to

enable the agency to determine whether it has jurisdiction over potential charges.’”

Kindred, 2023 WL 3158951, at *5 (alterations and internal quotation marks omitted)

(quoting Holowecki, 552 U.S. at 405). But the Court concluded that the intake

questionnaire was an adequate charge of discrimination in Holowecki because the

plaintiff “supplemented” the completed questionnaire with a “detailed six-page

affidavit”—an affidavit explicitly “ask[ing] the agency to please force Federal Express to

end their age discrimination plan so we can finish out our careers absent the unfairness

and hostile work environment created” by the company. See id. at 405 (alterations and

internal quotation marks omitted); see also Kindred, 2023 WL 3158951, at *5 (“[T]he

Court deemed the intake form in [Holowecki] to be part of the charge only because it

was supplemented with an affidavit in which the employee expressly requested that the

EEOC take action.”). In other words, the Court found that a request for EEOC action

added to the intake questionnaire turned that form into a charge of discrimination.

Here, by contrast, Kirkwood’s completed Form 290A did not include any request

for action by the EEOC. On the contrary, the form includes only the information

requested by the EEOC, including Kirkwood’s personal information, the alleged bases

of discrimination, and the names of individuals treated better or worse than Kirkwood.

See Docket Item 10 at 5-6. Moreover, and as noted above, the form includes several

explicit warnings that it is not a charge of discrimination. See id. Based on those

warnings, and based on the absence of any request for action similar to that in the

addendum in Holowecki, Kirkwood’s completed Form 290A cannot be reasonably

construed as a request for the EEOC “to take remedial action to protect [his] rights or

otherwise settle a dispute between [him] and [Buffalo Naval Park].” See Holowecki, 552

U.S. at 402; see also Kindred, 2023 WL 3158951, at *5 (“[G]iven the pre-charge inquiry

form’s express statement that it does not constitute a charge of discrimination and its

design as a tool for determining whether an employee’s allegations are covered by

employment-discrimination laws, it cannot be considered a charge under the ADEA.”);

Shaukat v. Mid Atl. Pros., Inc., 2021 WL 5743909, at *4 (D. Md. Nov. 30, 2021) (“[T]he

explicit language in [the plaintiff’s] pre-charge inquiry form stating that it is not a charge

of discrimination, and that other steps need to be taken in order to file such a charge,

precludes a reasonable construction of the form as a request that the EEOC take

remedial action.”).

Because Kirkwood’s Form 290A was not a charge of discrimination, and because

Kirkwood filed his complaint with the NYSDHR more than two years after the

termination of his employment, his claims are untimely on their face. But because

exhaustion is “a requirement that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling,” see Francis v. City of New York, 235 F.3d 763, 767 (2d

Cir. 2000), Kirkwood’s claims may nevertheless be viable if some equitable defense

excuses his failure to timely exhaust, see Fowlkes v. Ironworkers Loc. 40, 790 F.3d 378,

386 (2d Cir. 2015).7

7 Courts have waived administrative exhaustion requirements in other

circumstances, including when administrative exhaustion would have been futile. See,

e.g., Lerer v. Spring Valley Fire Dep’t, Inc., 2021 WL 1425238, at *5 (S.D.N.Y. Apr. 14,

2021); see also Ferguson v. Park Slope Food Co-op, 2023 WL 2462726, at *5 (E.D.N.Y.

Mar. 10, 2023) (noting that courts also consider otherwise untimely or unexhausted

claims “when the plaintiff has experienced a continuous practice and policy of

discrimination” or when “the plaintiff filed an earlier EEOC charge” and the new

allegations are “reasonably related” to the discrimination alleged in the earlier charge

(citation and internal quotation marks omitted)). Furthermore, a defendant may be

equitably estopped from asserting the failure to exhaust when the defendant engaged in

some conduct that hindered the timely filing of the plaintiff’s claims. See, e.g., Lerer,

2021 WL 1425238, at *5. But none of those exceptions appear relevant here: Kirkwood

does not say that exhaustion would have been futile, nor does he say that the

defendants somehow prevented him from filing timely claims. And because Kirkwood

did not file a charge of discrimination with the EEOC or NYSDHR until well after the time

Kirkwood does not explicitly invoke any such defense. See generally Docket

Items 10, 13-14, 18-20. But because Kirkwood is proceeding pro se, the Court gives

him every benefit of the doubt and looks for arguments that he might be trying to raise.

See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (“[T]he

submissions of a pro se litigant must be construed liberally and interpreted to raise the

strongest arguments that they suggest.” (citation and internal quotation marks omitted)).

And a broad and generous reading of his papers suggests that Kirkwood may be trying

to argue that he is entitled to equitable tolling for one or more of three reasons: the

COVID-19 pandemic, his learning disability, or the EEOC’s conduct. See, e.g., Docket

Item 13 at 2 (“I filed with the EEOC during [COVID and] access to actual office was hard

and mostly done over the phone.”); id. (“In respon[se] to the timely filing charge[] . . . . I

am [a] slow learner and everyone just continues to pass the buck.”); Docket Item 10 at 2

(Kirkwood’s stating that after he submitted his complaint, the EEOC “start[ed] to ignore

[him and] he was told keep in mind that the [EEOC] process takes time”).

“Generally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” A.Q.C. ex rel. Castillo v. United States,

656 F.3d 135, 144 (2d Cir. 2011) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)); see also Gindi, 786 F. App’x at 282 (same). “[E]quitable tolling is considered a

drastic remedy applicable only in rare and exceptional circumstances.” A.Q.C. ex rel.

to do so passed, his claims are not timely under the “continuing violation” or “reasonably

related violation” doctrines. See Ferguson, 2023 WL 2462726, at *5.

Castillo, 656 F.3d at 144 (alterations, citations, and internal quotation marks omitted).

And Kirkwood has not provided any reason why that drastic remedy applies here.

First, Kirkwood’s passing mention of COVID-19 does not suffice to show the sort

of rare and exceptional circumstance that might support equitable tolling. See, e.g.,

Verne, 2022 WL 4626533, at *6 (“The COVID-19 pandemic alone is insufficient to

warrant equitable tolling without a more specific personal reason.”). And while equitable

tolling also can apply “where a plaintiff’s medical condition or mental impairment

prevented [him] from proceeding in a timely fashion,” Zerilli-Edelglass v. N.Y.C. Transit

Auth., 333 F.3d 74, 80 (2d Cir. 2003), Kirkwood has not offered a “particularized

description” of any “condition [that] adversely affected [his] capacity to function generally

or in relationship to the pursuit of [his] rights,” Boos v. Runyon, 201 F.3d 178, 185 (2d

Cir. 2000).

Moreover, Kirkwood’s allegations that the EEOC “start[ed] to ignore [him]” after

he filed his pre-charge inquiry and that he “was told . . . that the [EEOC] process takes

time,” Docket Item 10 at 2, do not show that “some extraordinary circumstance”

prevented him from filing a timely charge. See A.Q.C. ex rel. Castillo, 656 F.3d at 144.

In some circumstances, courts have applied equitable tolling “when the EEOC

erroneously advised the plaintiff or otherwise erred.” See Jiles, 217 F. Supp. 3d at 692

(collecting cases); but see id. (“[T]he Second Circuit has raised questions as to ‘whether

the EEOC’s actions can be a basis for equitable tolling where the EEOC is not a

defendant.’” (quoting Li-Lan Tsai v. Rockefeller Univ., 46 F. App’x 657, 658 (2d Cir.

2002) (summary order)). But Kirkwood does not allege that the EEOC erroneously

advised him of anything; in fact, the EEOC notified Kirkwood that he had to do more

than complete Form 290A to pursue his claims. See, e.g., Docket Item 10 at 4 (“If you

do not file a charge of discrimination within the time limits, you will lose your rights and

the EEOC will not take further action.”); id. at 5 (“This Pre-Charge Inquiry is not a

charge [of discrimination]. If you would like to file a charge of discrimination

immediately, contact the EEOC office on the cover letter.”). So the cases cited in Jiles

do not support equitable tolling here. See Jiles, 217 F. Supp. 3d at 692 (finding that

equitable tolling did not apply where “there are no allegations that the EEOC made any

misrepresentations to [the p]laintiff”); cf. Zerilli-Edelglass, 333 F.3d at 81 (finding no

basis for equitable tolling where the EEOC correctly “inform[ed the plaintiff] that she was

required to file a formal complaint within 300 days of the allegedly discriminatory act

well within this 300 day period”).

Because Kirkwood’s claims under Title VII, the ADA, and the ADEA appear to be

time barred, and because he has not shown how any equitable defense might change

that, his claims are subject to dismissal. Nevertheless, and in light of Kirkwood’s pro se

status, he may amend his complaint or otherwise show why his federal claims are not

subject to dismissal for the reasons stated above. See Shibeshi v. City Univ. of N.Y.,

531 F. App’x 135, 136 (2d Cir. 2013) (summary order) (“[D]istrict courts should generally

not dismiss a pro se complaint without granting the plaintiff leave to amend . . . .”).

II. SUPPLEMENTAL JURISDICTION

As just noted, Kirkwood’s federal claims are subject to dismissal. His remaining

claims all arise under state law, and this Court does not have some independent basis

for jurisdiction over those claims. See Docket Item 1 at 2 (Kirkwood’s alleging that the

parties are all New York residents).

A “district court[] may decline to exercise supplemental jurisdiction over a claim” if

“the district court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3). “Once a district court’s discretion is triggered under § 1367(c)(3), it

balances the traditional ‘values of judicial economy, convenience, fairness, and comity’

in deciding whether to exercise jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455

F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988)). “[I]n the usual case in which all federal[ ]law claims are eliminated before

trial, the balance of factors will point toward declining to exercise jurisdiction over the

remaining state[ ]law claims.” Id. (alterations omitted) (quoting Cohill, 484 U.S. at 350

n.7).

This case remains at its earliest stages, and it is not clear whether Kirkwood can

allege viable federal claims. So judicial economy favors declining to pass on Kirkwood’s

NYSHRL claims at this stage. And there is nothing to suggest that convenience,

fairness, or comity weigh against that conclusion. This Court therefore declines to

exercise supplemental jurisdiction over Kirkwood’s remaining state law claims, and

those claims will be dismissed without prejudice if Kirkwood does not amend his

complaint to correct the deficiencies noted above or otherwise demonstrate how this

Court can hear his claims.

CONCLUSION

For the reasons stated above, the defendants’ motion to dismiss, Docket Item 7,

will be granted unless Kirkwood files an amended complaint within 45 days of the date

of this order that corrects the deficiencies noted above or otherwise demonstrates how

this Court can hear his claims. No later than 30 days after any amended complaint is

filed, the defendants may answer, move against, or otherwise respond to the amended

complaint. If Kirkwood does not amend his complaint within 45 days of the date of this

order or otherwise demonstrate how this Court can hear his claims, then his complaint

will be dismissed without further order and the Clerk of the Court shall close the case.

SO ORDERED.

Dated: August 3, 2023

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE