Petition for Writ of Certiorari — American Airlines, Inc. v. Criales

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97.152 JUL 2 2 1997

No.

Orrice Ur ine CLenk

In The

Supreme Court of the United States

October Term, 1996

AMERICAN AIRLINES, INC.,

Petitioner,

MAURICIO CRIALES,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID S. STARR CHARLES C. JACKSON

AMERICAN AIRLINES, INC. Counsel of Record

4333 Amon Carter Boulevard EDWARD CERASIA I

Fort Worth, Texas 75261 SEYFARTH, SHAW,

(817) 967-1256 FAIRWEATHER & GERALDSON

900 Third Avenue

New York, New York 10022

(212) 715-9000

Attorneys for Petitioner

American Airlines, Inc.

utz

71538 Ue i

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTION PRESENTED

Whether a dismissal for failure to comply with the statute

of limitations contained in Title VII of the Civil Rights Act of

1964 is a dismissal “for lack of jurisdiction” within the “special

meaning” of Fed. R. Civ. P. 41(b), and therefore not a res judicata

bar to a second lawsuit raising the same claims.

STATEMENT REQUIRED BY RULE 29.6

American Airlines, Inc. is a wholly-owned subsidiary of

AMR Corporation. American has no subsidiaries that are

nonwholly owned.

iti

TABLE OF CONTENTS

Page

EE EES a i

Statement Required By Rule 29.6 ................. ii

Ne Th a esa ne 8S ad eek oes iil

a iv

EE eS eee eee ee eee l

DIE ME NUON ge cece cc ccsccccsvces ]

Statutory Provision and Rule Involved .............. l

a uaa ines eee eee 0's 3

Reasons for Granting the Writ .................5-. 8

I. The Second Circuit’s Decision Conflicts With

Prior Decisions Of This Court, And Demonstrates

That There Is An Apparent Conflict Between

Costello And At Least Two Other Decisions Of

ee ae ah nn bee eee ead bv ee 6 0 10

II. The Second Circuit’s Decision Conflicts With The

Pertinent Decisions Of Other Courts Of Appeals.

SR ae ary on ee ee 13

If]. Prompt Resolution Of This Conflict Is A Matter

Of Great National Importance. .............. 16

eee a octeeaeeaewae 20

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Allen v. McCurry, 449 U.S. 90 (1980) .............. 11

Bailey v. USX Corp., 658 F. Supp. 279 (N.D. Ala. 1987),

aff’d, 850 F.2d 1506 (11th Cir. 1988) ............ 18

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147

By a er err nr wee nog 12

Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589 (7th

A SEE each kh bike ae eke eee Teka eee ha euke 18

Cemer v. Marathon Oil Co., 583 F.2d 830 (6th Cir. 1978)

EPC TT eee ee Tee eT Cr er oe ere 13-14

Costello v. United States, 365 U.S. 265 (1961) ....... passim

Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983)

PP eee eee ee Oe ee Pe eee ee 9

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394

er ee Per mer Tm ie. eae passim

Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294 (1917)

PE ee re eer ee PN er ere ae 10-11

Heiser v. Woodruff, 327 U.S. 726 (1946) ............ 11

—— eee ee ew

Contents

Page

Jeter v. Hewitt, 63 U.S. 352 (1859) ............006- 1]

Kale v. Combined Ins. Co. of Am., 924 F.2d 1161 (1st Cir.),

cert. denied, 502 U.S. 816 (1991) ............... 13

Marin v. HEW, Health Care Financing, 769 F.2d 590 (9th

Cir. 1985), cert. denied, 474 U.S. 1061 (1986) ..... 9

Miller v. United States Postal Serv., 825 F.2d 62 (Sth Cir.

BOOED a oucs baw evew kee eek ee ak uae eee ees 14, 18

Mills v. Des Arc Convalescent Home, 872 F.2d 823 (8th

<a SE 4.3 Gan 44d Hw Gaede es 645 La aRe ees 13

Nilsen v. City of Moss Point, Miss., 701 F.2d 556 (Sth Cir.

1983), rev’g, 674 F.2d 379 (Sth Cir. 1982)

Let nates Sete ear eresanenee eae 13, 14-15, 16

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977)

OE EO IES ET TT Nae ee FE 17

Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447 (1995)

Ce Pe Pee ey Tr Te ee: 3-4, 12, 16, 19

PRC Harris, Inc. v. Boeing Co., 700 F.2d 894 (2d Cir.),

cert. denied, 464 U.S. 936 (1983) ............... 14, 19

Prochotsky v. Baker & McKenzie, 966 F.2d 333 (7th Cir.

| PORE RE TT TST ETT ee ee ee eee oe 18

Shoup v. Bell & Howell Co., 872 F.2d 1178 (4th Cir. 1989)

PTTTT CITT TCT Tee ee ee 9, 14, 19

Contents

Page

Stebbins v. Nationwide Mut. Ins. Co., 528 F.2d 934 (4th

Cir. 1975), cert. denied, 424 U.S. 946 (1976) ..... 9,17

Torres v. Shalala, 48 F.3d 887 (Sth Cir. 1995) ........ 13

United States v. Oppenheimer, 242 U.S. 85 (1916).... 12-13

Weiss v. Coca Cola Bottling Co. of Chicago, 990 F.2d 333

PURGE. FSGS cecciccicccecesvaucceneceieerens 18

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)

$05 b5060566000080 000000660 BONES ES UE eee passim

Statutes Cited:

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Oe Sic © FPOE 60 66b00cs008esessuceeeeeee een 5

GS UBL. § AICCCR) ove scciivvewesewaveuns 1-2

Rules Cited:

Pe. Sai FH SRO ovo 4 4kas a eke eeceens 4,5, 6, 13, 18

POEs We, Ste Bee b vckees cddcesasss eee passim

Re 8 PP ore erry er rr ee 18

vil

Contents

Other Authorities Cited:

J. Eichhorst, Res Judicata Effects of Involuntary

Dismissals: When Involuntary Dismissals Based Upon

Prematurity Or Failure To Satisfy A Precondition To

Suit Should Bar A Second Action, 70 Cornell L. Rev.

We UE Ceca e i a teecaktsartbk ers ooun ieee:

18 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 4435 (1981) .............0c0eee

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Second Circuit Decided January 21,

EE Ce RE ha hk wa inn hbd oa erenaeueie.

Appendix B — Memorandum and Order of the United

States District Court for the Eastern District of New

York Dated November 6, 1995 (1995 WL 669900) .

Appendix C — Memorandum and Order of the United

States District Court for the Eastern District of New

York Dated November 14, 1994 .................

Appendix D — Denial of Petition for Rehearing En Banc

of the United States Court of Appeals for the Second

Circuit Filed April 23, 1997 ......ccccccccsccess

Page

17a

4la

OPINIONS BELOW

Petitioner American Airlines, Inc. (“American”) seeks

review of a decision of the United States Court of Appeals for

the Second Circuit which, with the dissenting opinion, is reported

as Criales v. American Airlines, Inc., 105 F.3d 93 (2d Cir. 1997),

and is reproduced in the appendix to this petition (App. 1a-16a).

The opinion of the district court is available on Westlaw, Criales

v. American Airlines, Inc., 95-CV-1709, 1995 WL 669900

(E.D.N.Y. Nov. 6, 1995) (“Criales IT’), and is reproduced in the

appendix (App. 17a-40a). The district court’s decision

dismissing respondent Mauricio Criales’ first Title VII lawsuit

on the ground of untimeliness is unreported (“Criales I’), and

is also reproduced in the appendix (App. 41a-52a).

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on

January 21, 1997. American filed a timely Petition for Rehearing

and Suggestion for Rehearing En Banc on February 4, 1997.

That petition was denied in an Order dated and filed April 23,

1997, which is reproduced in the appendix (App. 53a-54a). The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION AND RULE INVOLVED

Section 706(e)(1) of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e-5(e)(1), and Rule 41(b)

of the Federal Rules of Civil Procedure are pertinent to this case.

Section 706(e)(1) of Title VII provides as follows:

§ 2000e-5. Enforcement provisions

* * *

(e) Time for filing charges; time for

service of notice of charge on respondent;

filing of charge by Commission with State

or local agency; seniority system

(1) A charge under this section shall be

filed within one hundred and eighty days

after the alleged unlawful employment

practice occurred . . . except that in a case of

an unlawful employment practice with

respect to which the person aggrieved has

initially instituted proceedings with a State

or local agency with authority to grant or seek

relief from such practice ... such charge

shall be filed by or on behalf of the person

aggrieved within three hundred days after the

alleged unlawful employment practice

occurred, or within thirty days after receiving

notice that the State or local agency has

terminated the proceedings under the State

or local law, whichever is earlier, and a copy

of such charge shall be filed by the

Commission with the State or local agency.

42 U.S.C. § 2000e-5(e)(1).

Rule 41(b) of the Federal Rules of Civil Procedure provides

as follows:

Rule 41. Dismissal of Actions

* * *

(b) Involuntary Dismissal: Effect

Thereof: For failure of the plaintiff to

prosecute or to comply with these rules or

any other order of court, a defendant may

move for dismissal of an action or of any

claim against the defendant. Unless the court

in its order for dismissal otherwise specifies,

a dismissal under this subdivision and any

dismissal not provided for in this rule, other

than a dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication

upon the merits.

Fed. R. Civ. P. 41(b).

STATEMENT OF THE CASE

This case presents the recurring question of whether a statute

of limitations dismissal of a Title VII suit “operates as an

adjudication upon the merits” for purposes of Fed. R. Civ. P.

41(b) and res judicata. Relying on this Court’s pre-Title VII

decision in Costello v. United States, 365 U.S. 265 (1961), the

Second Circuit majority ruled that the district court’s dismissal

of Criales I on statute of limitations grounds was not an

adjudication upon the merits, but rather was a dismissal for “lack

of jurisdiction” within the “special meaning” of Rule 41(b)

(App. 10a-11a). While the Fourth Circuit has embraced a similar

rationale, the Second Circuit’s resolution of this question

conflicts with the decisions of the First, Fifth, Sixth and Eighth

Circuits, as well as the purposes and policies of the doctrine of

res judicata. The Second Circuit’s decision, as well as Costello,

also cannot be reconciled with other decisions of this Court,

including Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982) (“filing a timely charge of discrimination with the EEOC

is not a jurisdictional prerequisite to suit in federal court, but

[is] like a statute of limitations”); Plaut v. Spendthrift Farm,

Inc., 115 S. Ct. 1447, 1457 (1995) (“[t}he rules of finality, both

statutory and judge-made, treat a dismissal on statute-of-

limitations grounds the same way they treat a dismissal for

failure to state a claim ... as a judgment on the merits”); and

Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398,

399 n.3 (1981) (“the res judicata consequences of a final,

unappealed judgment on the merits [are not] altered by the fact

that the judgment may have been wrong”; a Rule 12(b)(6)

dismissal is a “ ‘judgment on the merits’ ”).

On December 20, 1991, American fired Criales, a former

union-represented airline mechanic, for submitting a false

expense report. The termination was sustained in arbitration by

a three-member Railway Labor Act Board of Adjustment

(App. 3a). After his discharge, Criales filed two national origin

discrimination charges against American concerning his

termination: (1) a February 5, 1992 EEOC charge (No. 160-92-

1069), which was transferred for processing to the New York

State Division of Human Rights (“NYSDHR”); and (2) a

December 3, 1992 charge with the New York City Commission

on Human Rights, which was transferred for processing to the

EEOC (No. 160-93-0816). While Criales’ February 1992 charge

was pending, the EEOC dismissed the December 1992 charge

as untimely, and on October 26, 1993 issued Criales his statutory

right-to-sue notice relating to the December 1992 charge

(App. 3a-4a).

In November 1993, based on the right-to-sue notice relating

to his untimely December 1992 charge, Criales filed a pro se

complaint in the district court (Criales I), alleging Title VII

violations (App. 4a).' Criales thereafter retained counsel, who

1. At the time Criales I was filed, Criales’ February 1992 EEOC charge

was still pending before the NYSDHR (App. 4a). However, on August 29,

1994, before the district court dismissed Criales J, the NYSDHR notified

Criales and American by letter than it had dismissed the February 1992 charge,

explaining that Criales’ discrimination claims were being litigated in federal

court (App. 4a-Sa).

filed an amended complaint alleging national origin

discrimination under Title VII and 42 U.S.C. § 1981 (/d.). The

amended complaint also sought to set aside the arbitration

board’s decision, and asserted state law claims of defamation

and intentional infliction of emotional distress (App. 50a-52a).

On November 14, 1994, the district court granted

American’s motion to dismiss in Criales I under Fed. R. Civ. P.

12(b)(6). The court dismissed Criales’ Title VII claims on the

ground his EEOC discrimination charge was untimely filed

(App. 4a; 46a-48a). The district court also dismissed on their

merits Criales’ § 1981 claims and his claim to set aside the

arbitration decision, and dismissed the state law claims for lack

of jurisdiction (App. 48a-52a). On December 1, 1994, Criales

filed a pro se notice of appeal with the Second Circuit (App. 4a).

On August 3, 1995, on the advice of counsel, Criales filed a

motion to withdraw his appeal in Criales I “with prejudice”

(App. Sa & n.1). The court of appeals granted Criales’ motion

on August 8, 1995 (App. 5a).

In the meantime, on January 31, 1995, the EEOC issued

Criales a Notice of Right to Sue with respect to his timely-filed

February 1992 EEOC charge (/d.). On April 28, 1995, Criales

(through counsel) filed the complaint in Criales I] alleging race

discrimination under Title VII and § 1981, and state law claims

for defamation and intentional infliction of emotional distress

(Id.). On July 10, 1995, while Criales’ appeal in Criales I was

pending, American filed its Fed. R. Civ. P. 12(b)(6) motion to

dismiss Criales II, contending that the decision in Criales |

barred the discrimination claims raised in Criales I] under well-

settled res judicata principles (App. 5a; 23a).

On November 6, 1995, the district court granted American’s

motion, dismissing Criales’ Title VII and § 1981 race

discrimination claims as barred by the doctrine of res judicata

(App. 5a-6a; 23a-34a). Rejecting Criales’ contention that the

dismissal in Criales I could be likened to a dismissal for “lack

of jurisdiction” under Fed. R. Civ. P. 41(b), the district court

held, in reliance on Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 388 (1982), and other authority, that “the dismissal of

Criales I was predicated on a lack of statutory prerequisite, not

a ‘lack of jurisdiction’ ” (App. 29a). The district court also

exercised its discretion not to retain jurisdiction over the

supplemental state law claims (App. 39a).

Criales appealed once again, and on January 21, 1997, the

Second Circuit vacated that portion of the district court’s

decision dismissing Criales’ Title VII claims on res judicata

grounds (App. 13a, 14a).? The majority reached that conclusion

despite acknowledging that “the district court’s dismissal of

Criales’s complaint arising from his untimely charge was styled

as a dismissal for failure to state a claim under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, and that dismissals under

Rule 12(b)(6) are generally considered judgments on the merits,

unless the court specifies otherwise” (App. 11a) (citing

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3

(1981)).

Although it cited Zipes for a different proposition (see App.

12a), the court of appeals relied on the pre-Title VII decision of

Costello v. United States, 365 U.S. 265 (1961),° stating that

“[a]lthough the district court viewed the problem [in Criales I]

2. The court of appeals also vacated that portion of the district court

decision dismissing Criales’ state law claims for lack of jurisdiction, but

affirmed the dismissal of Criales’ remaining federal claims (App. 14a).

3. In Costello, a case brought by the United States to revoke an order

admitting the defendant to citizenship, the Court held that when a dismissal

occurs because a party has failed to satisfy certain prerequisites to suit, it

should be treated as one for lack of jurisdiction. 365 U.S. at 285-88.

as one of untimeliness, it is more appropriately seen as one of

prematurity” (App. 6a). The court of appeals reasoned:

Because [Criales] remained capable of

complying with [a precondition requisite] by

instituting his [second] suit after receipt of

the right-to-sue notice on the timely charge,

the dismissal of the first complaint should

not have been found to operate as an

adjudication upon the merits and as a bar to

the subsequent complaint filed after the

precondition had been satisfied. It was a

dismissal “for lack of jurisdiction” within the

special meaning of that term in Rule 41(b),

as explained in Costello.

(App. 11a) (emphasis added). The court of appeals went on to

state that “Costello makes clear that a dismissal in these

circumstances (for failure to comply with a statutory prerequisite

to suit) operates as a dismissal for ‘lack of jurisdiction’ ”

(App. 13a, n.3). The majority also believed that res judicata was

not applicable because American “had not been ‘put to the

necessity of preparing a defense’ ” (App. 10a) (quoting Costello,

365 U.S. at 287), and emphasized the harshness of the district

court’s “drastic ruling” (App. 12a) — “ ‘[i]n properly seeking

to deny a litigant two ‘days in court,’ courts must be careful not

to deprive him of one’ ” (App. 13a) (citation omitted).

In dissent, Judge Miner explained that, by basing its decision

upon Costello, the majority disregarded this Court's holdings

in Moitie and Zipes (App. 14a-15a).* Judge Miner was

4. Judge Miner also dissented from the majority’s ruling to reinstate

Criales’ state law claims, but concurred in the decision to affirm the dismissal

of Criales’ remaining federal law claims (App. 14a, 16a).

particularly troubled by the majority’s reliance upon Costello

in light of this Court’s subsequent decision in Zipes:

[w]hatever may have been the rule in

Costello, it cannot be applied in a Title VII

action involving untimely filing with the

EEOC. It is because the “statutory

requirement is analogous to a statute of

limitations,” . . . that dismissal for failure to

comply with the requirement is a judgment

on the merits ...

(App. 15a-16a) (citations omitted).

Judge Miner explained that “[a]Ithough the result envisioned

by the foregoing is most unfortunate, it could have been avoided”

(App. 16a). Criales could have pursued two options in order to

avoid dismissal on the ground of res judicata: (1) Criales could

have moved for a stay of Criales I pending receipt of a right-to-

sue notice relating to his timely-filed February 1992 EEOC

charge; or (2) Criales could have requested the district court to

dismiss Criales I “without prejudice to renewal upon receipt of

the timely right-to-sue letter” (/d.). Judge Miner concluded that

Criales’ “failure to have considered these alternatives leaves

[him] in his present bind” (/d.).

REASONS FOR GRANTING THE WRIT

This case presents the fundamental question whether a

dismissal for failure to file a timely Title VII charge with the

EEOC “operates as an adjudication upon the merits” for purposes

of Fed. R. Civ. P. 41(b) and res judicata. The Second Circuit’s

decision is contrary to decisions by this Court foreclosing “ad

hoc_determinations” of the finality of judgments. It is also

contrary to this Court’s holdings that filing a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite

a ee ee ee a eee

to filing a Title VII action in federal court, but rather is similar

to a statute of limitations, and that a statute of limitations

dismissal is a judgment on the merits. In addition, the Second

Circuit’s conclusion that the district court’s dismissal of Criales’

first Title VII suit on the ground of untimeliness was not an

adjudication upon the merits under Rule 41(b) conflicts with

decisions of the First, Fifth, Sixth and Eighth Circuits, as well

as the overriding policies and purposes of the doctrine of res

judicata.’ As still other circuits have recognized, the continued

vitality and scope of the “special meaning” (App. 11a) exception

of Costello v. United States, 365 U.S. 265 (1961), to Rule 41(b)

jurisdiction questions is an unresolved source of continuing

confusion even outside the arena of discrimination law.°

5. The only court of appeals that has decided the issue presented and

not rejected the Second Circuit’s approach is the Fourth Circuit. See Stebbins

y. Nationwide Mut. Ins. Co., 528 F.2d 934, 936 (4th Cir. 1975), cert. denied,

424 U.S. 946 (1976).

6. See Shoup v. Bell & Howell Co., 872 F.2d 1178, 1180-81 & n.1 (4th

Cir. 1989) (distinguishing Costello from cases presenting statute of limitations

issues and finding that ad hoc determinations of equities are inconsistent

with Moitie and res judicata principles); id. at 1184-85 (Murnaghan, J.,

dissenting) (arguing that Costello allows courts to decline to give res judicata

effect in certain statute of limitations cases involving “unusual” or

“extraordinary circumstances”); Marin v. HEW, Health Care Financing, 769

F.2d 590, 593 (9th Cir. 1985) (Costello gives a “broad reading to the

jurisdictional exception set forth in Rule 41(b) . . .”), cert. denied, 474 U.S.

1061 (1986); Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 1983)

(Scalia, J.) (suggesting that Costello has continuing vitality if jurisdictional

defects “could be remedied by occurrences subsequent to the original

dismissal”) (emphasis original); see also J. Eichhorst, Res Judicata Effects

of Involuntary Dismissals: When Involuntary Dismissals Based Upon

Prematurity Or Failure To Satisfy A Precondition To Suit Should Bar A Second

Action, 70 Cornell L. Rev. 667, 670-85 (1985) (collecting cases that do and

do not apply Costello’s “new jurisdictional exception” to actions involving

dismissals for failure to satisfy preconditions to suit, and recognizing that

courts that decline to apply Costello “have ameliorated the unfairness to the

defendant and harm to judicial economy that can result from strict application

of the Costello ‘jurisdictional’ test”).

This Court has never ruled on the question presented in this

case, and prompt resolution of the conflict in the courts of

appeals is a matter of critical importance for Title VII

jurisprudence and the finality of judgments in general. Until

reversed or set aside, the Second Circuit’s decision will

encourage multiple litigation under Title VII, other federal and

state anti-discrimination statutes and common law tort or

contract theories. And, until the Court determines whether

Costello is still good law or clarifies its application to Title VII

cases, the unresolved scope of Rule 41(b)’s exception for

jurisdictionally-based dismissals will impair principled

application of res judicata in succeeding litigations under

discrimination and other statutes that impose “preconditions”

to suit.

THE SECOND CIRCUIT’S DECISION CONFLICTS

WITH PRIOR DECISIONS OF THIS COURT, AND

DEMONSTRATES THAT THERE IS AN APPARENT

CONFLICT BETWEEN COSTELLO AND AT LEAST TWO

OTHER DECISIONS OF THIS COURT.

In ruling that the dismissal of the untimely Title VII claim

in Criales I was not an adjudication on the merits because Criales

had merely failed to satisfy a “precondition” to suit within the

meaning of Costello, the Second Circuit disregarded explicit

holdings of this Court. Because the Second Circuit’s decision is

based upon an ad hoc determination of fairness to a particular

plaintiff (App. 11a-13a), and not the rigid application of res

judicata, it contravenes this Court’s repeated admonitions that

a rigorous application of res judicata principles must not give

way to a court’s “ad hoc determination of the equities in a

particular case.” E.g., Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 401 (1981); Hart Steel Co. v. Railroad Supply

Co., 244 U.S. 294, 299 (1917); Jeter v. Hewitt, 63 U.S. 352, 364

(1859). “There is simply ‘no principle of law or equity which

sanctions the rejection by a federal court of the salutary

principles of res judicata.’” Moitie, 452 U.S. at 401 (quoting

Heiser v. Woodruff, 327 U.S. 726, 733 (1946)). This approach

promotes the evenhanded administration of justice and judicial

economy, and “serves vital public interests.” Moitie, 452 U.S.

at 401; Allen v. McCurry, 449 U.S. 90, 94 (1980).

The Second Circuit’s application of Costello to Title VII

timeliness “preconditions” — to draw Criales J into Rule 41 (b)’s

“lack of jurisdiction” exception — also cannot be reconciled

with this Court’s decision in Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982). Zipes makes plain 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.” Jd. at 393 (emphasis added). Indeed, “the

structure of Title VII” and “the congressional policy underlying

it” demonstrate that the timely filing requirements cannot be

considered “jurisdictional” for any purpose:

The provision granting district courts

jurisdiction under Title VII, 42 U.S.C.

§ 2000e-5(e) and (f), does not limit

jurisdiction to those cases in which there has

been a timely filing with the EEOC. It

contains no reference to the timely filing

requirement. The provision specifying the

time for filing charges with the EEOC

appears as an entirely separate provision, and

it does not speak in jurisdictional terms or

refer in any way to the jurisdiction of the

district courts.

Id. at 393-94 (footnotes omitted; emphasis added).

The Second Circuit’s decision therefore creates an

unworkable anomaly whereby courts must deem Title VII’s

charge-filing “preconditions” to be statutes of limitations under

Zipes, but are authorized to treat the same preconditions as

jurisdictional requirements under Rule 41(b) and Costello’s

“special meaning” when they seek to work equity and avoid

“drastic” rulings (see App. 11a, 12a).’ The Second Circuit’s

approach not only creates an unacceptable conflict between

Title VII’s timeliness requirements and the purportedly differing

requirements of Rule 41(b), but it also contravenes this Court’s

admonition in Baldwin County Welcome Center v. Brown, 466

U.S. 147, 152 (1984), that the “[pJrocedural requirements

established by Congress for gaining access to the federal courts

{under Title VII] are not to be disregarded by courts out of a

vague sympathy for particular litigants.”

In addition to its incompatibility with Title VII principles,

the Second Circuit’s approach violates this Court’s express

directives that a statute of limitations dismissal is an adjudication

upon the merits for purposes of Rule 41(b) and the doctrine of

res judicata. “The rules of finality, both statutory and judge-

made, treat a dismissal on statute-of-limitations grounds the

same way they treat a dismissal for failure to state a claim, for

failure to prove substantive liability, or for failure to prosecute:

as a judgment on the merits.” Plaut v. Spendthrift Farm, Inc.,

115 S. Ct. 1447, 1457 (1995) (citing Rule 41(b); emphasis

added); United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916)

7. Commentators have also criticized Costello’s interpretation of the

“lack of jurisdiction” exception in Rule 41(b). 18 C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure § 4435 at 337 (1981). Professors

Wright, Miller and Cooper opine that Costello's “method of interpreting Rule

41(b) is directly objectionable because it involves so slippery a method of

manipulating the concept of jurisdiction.” Jd. at 335. They conclude that

Costello's interpretation of the term “jurisdiction” is both distorted and

ambiguous, “demonstrat[ing] the capacity of the Costeilo opinion to confuse

proper analysis.” Jd. at 337.

(“A plea of the statute of limitations is a plea to the merits, . . .

and however the issue was raised in the former case, after

judgment upon it, it could not be reopened in a later

prosecution”); see also Moitie, 452 U.S. at 399 n.3 (a Rule

12(b)(6) dismissal, as here (App. 11a), operates as a “ ‘judgment

on the merits’ ” for purposes of res judicata).

Il.

THE SECOND CIRCUIT’S DECISION CONFLICTS

WITH THE PERTINENT DECISIONS OF OTHER

COURTS OF APPEALS.

In view of this Court’s holdings, the courts of appeals for

the First, Fifth, Sixth and Eighth Circuits have all reached a

conclusion opposite to that of the Second Circuit, holding that

a dismissal for failure to comply with Title VII’s or the Age

Discrimination In Employment Act’s (“ADEA’s”) timely-filing

“preconditions” to suit operates as an adjudication upon the

merits under Rule 41(b). See Mills v. Des Arc Convalescent

Home, 872 F.2d 823, 826 (8th Cir. 1989) (“a disposition of a

Title VII action as untimely filed is a decision on the merits for

purposes of res judicata”); Nilsen v. City of Moss Point, Miss.,

701 F.2d 556, 562 (5th Cir. 1983) (en banc) (same), rev’g,

674 F.2d 379 (5th Cir. 1982); see also Kale v. Combined Ins.

Co. of Am., 924 F.2d 1161, 1164 (Ist Cir.) (“It is beyond

peradventure that the dismissal of a claim [under the ADEA] as

time-barred constitutes a judgment on the merits, entitled to

preclusive effect”), cert. denied, 502 U.S. 816 (1991); Cemer v.

8. The Second Circuit’s recognition of a “new facts” exception to the

application of res judicata (App. 12a), also undermines the Moitie rule that a

Rule 12(b)(6) dismissal is a judgment on the merits for purposes of res

judicata. Indeed, “[{i)f simply submitting new evidence rendered a prior

decision factually distinct, res judicata would cease to exist.” Torres v. Shalala,

48 F.3d 887, 894 (Sth Cir. 1995).

Marathon Oil Co., 583 F.2d 830, 831-32 (6th Cir. 1978)

(concluding that the dismissal of an untimely ADEA action was

an adjudication on the merits for purposes of Rule 41(b)). The

Fourth Circuit is the only court of appeals to consider the issue

that has not rejected the Second Circuit’s approach. See supra

note 5.°

The Fifth Circuit’s en banc decision in Nilsen v. City of

Moss Point, Mississippi, 701 F.2d 556 (Sth Cir. 1983), rev’g,

674 F.2d 379 (Sth Cir. 1982), underscores both the conflict the

Second Circuit’s decision has created and the error of its

rationale.'° The en banc Fifth Circuit, relying upon Zipes, held

that “the timely filing requirements of Title VII are to be treated

as limitations periods for all purposes,” including application

of the doctrine of res judicata. Id. at 562 (emphasis added). The

Fifth Circuit explained:

Based on Zipes, we hold that the timely

filing requirements of Title VII are to be

treated as limitations periods for all

purposes. Zipes clearly holds that these

requirements are not jurisdictional, so that

in any event it is beyond our power to declare

9. Notably, numerous courts, including the Second and Fourth Circuits,

have held that the Costello analysis does not apply in determining the res

judicata effect of a prior statute of limitations dismissal outside of the Title

VII or discrimination law context. E.g., Shoup v. Bell & Howell Co., 872

F.2d 1178, 1180-81 (4th Cir. 1989) (collecting cases); PRC Harris, Inc. v.

Boeing Co., 700 F.2d 894, 896-97 n.2 (2d Cir.), cert. denied, 464 U.S. 936

(1983).

10. See also Miller v. United States Postal Serv., 825 F.2d 62, 63-64

(Sth Cir. 1987) (relying on Nilsen, court concluded that plaintiff’s claim under

the Rehabilitation Act of 1973 was barred by res judicata, where, like the

present case (App. 3a-Sa), that claim was pending before the administrative

agency at the time his original Title VII action was dismissed as untimely).

ee ees

them to be so. This leaves us only the choice

between viewing them as either limitations

periods or as provisions sui generis —

subject to waiver and to equitable tolling, but

nevertheless not merits adjudications for

purposes of the preclusion doctrines. We see

no reason to reach the second — as it seems

to us — bizarre result, especially in view of

Zipes’ entire failure to envision it and its

repeated analogizing of these provisions to

“limitations periods.”"

Id. (emphasis added). The Fifth Circuit is right, and the Second

Circuit is wrong. As set forth above, at least three other circuits

have agreed with the Fifth Circuit and disagreed with the Second

Circuit. See supra pages 13-14.

As the Fifth Circuit in Nilsen also recognized, this Court’s

“repeated analogizing” of Title VII’s timely-filing requirements

to “limitations periods” in Zipes and its progeny makes clear

that this Court never envisioned that a court would use Costello’s

broad interpretation of the term “jurisdiction” under Rule 41(b)

to nullify settled res judicata principles in the context of an

untimely Title VII claim. 701 F.2d at 562. Yet, by relying on

Costello to attribute “special meaning” (App. 11a) to the term

“jurisdiction” under Rule 41(b), that is precisely what the Second

11. Prior to the en banc decision, a panel of the Fifth Circuit had all but

decided that Zipes, and not Costello, governs the question whether the

dismissal of an untimely Title VII suit is an adjudication on the merits (as

opposed to a dismissal “for lack of subject matter jurisdiction”) for purposes

of res judicata. 674 F.2d at 382-83 & nn.3, 5. As the en banc Fifth Circuit

recognized, the panel “veer[ed] away [from making that determination] only

at the last minute because it concluded that a resolution of it was not necessary

to its decision.” 701 F.2d at 562. The en banc Fifth Circuit resolved that

issue by relying upon Zipes, and not Costello. Id.

Circuit has done in this case, and courts will do so in the future

if they follow the Second Circuit’s, rather than the Fifth Circuit’s,

lead on this issue.

Thus, although the conflict in rationales is most vividly

spelled out in the en banc decision of the Fifth Circuit in Nilsen,

701 F.2d at 562, it is clear that this case would have been decided

differently in at least four of the federal courts of appeals, all of

which have recognized that a dismissal for failure to file a timely

Title VII or ADEA claim operates as an adjudication on the

merits for purposes of res judicata. See supra pages 13-14.

Ill.

PROMPT RESOLUTION OF THIS CONFLICT IS A

MATTER OF GREAT NATIONAL IMPORTANCE.

Not only is there a fundamental conflict on the question

presented, but prompt resolution of this conflict is a matter of

national importance with profound, immediate implications. The

Second Circuit’s decision completely vitiates the policies and

purposes underlying the doctrine of res judicata, thereby

permitting parties to relitigate matters that easily could have

been raised in a prior lawsuit and creating havoc in future

employment discrimination cases. It will encourage piecemeal

litigation, distort statutory requirements in favor of individual

notions of equity and disrupt settled expectations based upon

the holdings of Zipes, Plaut and Moitie.

In contrast, the approach embraced\in Title VII and ADEA

cases by the First, Fifth, Sixth and Eighth Circuits recognizes

the salutary principle of res judicata. Most notably, the approach

embraced by these circuits does not deprive a plaintiff of his or

her day in court; rather, those circuits simply require, consistent

with this Court’s teachings, that a plaintiff bring all claims based

Pi Se

on the same underlying facts in one action. Such an approach

recognizes the need for finality and avoidance of inconsistent

results — the cornerstone principles of res judicata. This rigid

application of res judicata produces sensible results which

should not be disregarded lightly.

Moreover, in seeking to avoid an allegedly “drastic” result

(App. 12a), the Second Circuit’s result-oriented approach

_ disregards that, during the pendency of Criales I, Criales easily

could have raised his Title VII claims based upon his timely-

filed February 1992 EEOC charge — but he and his counsel

made a tactical decision not to do so. As Judge Miner recognized

in his dissenting opinion, during the pendency of Criales I,

Criales had several options for preserving his Title VII claim

relating to his timely EEOC charge: (1) he “could have moved

to stay [Criales I] pending receipt of a right-to-sue letter that

resulted from the timely filing of his first [February 1992]

administrative charge”; or (2) he “could have requested the

district court to dismiss the prior action without prejudice to

renewal upon receipt of the timely right-to-sue letter”

(App. 16a). The majority failed to acknowledge that, after 180

days, “issuance of [EEOC] suit letters is a purely ministerial

task involving the exercise of no official discretion.” Stebbins,

528 F.2d at 937 n.5. Indeed, this Court has recognized that “a

complainant . . . may elect to circumvent the EEOC procedures

and seek relief through a private enforcement action in a district

court” after 180 days. Occidental Life Ins. Co. v. EEOC, 432

U.S. 355, 361 (1977); see also Stebbins, 528 F.2d at 937 n.5

(“Such [right-to-sue] letters are issued upon request after

expiration of the statutorily prescribed waiting period”).'?

12. Contrary to the majority’s opinion, the procedural history in this

case is not “unusual” (App. 2a) or “complex” (App. 3a). Numerous cases

demonstrate that employment discrimination plaintiffs often file more than

one EEOC charge, and often file federal court actions at the same time they

(Cont'd)

Further, Criales could have filed a motion under Fed. R. Civ. P.

60 to vacate or modify the judgment in Criales I, or he could

have pursued his direct appeal in Criales I (which he voluntarily

withdrew with prejudice).

In addition to the overriding interest of ensuring the finality

of judgments, the corresponding iaterest in promoting judicial

economy is equally vital. Indeed, the overburdened dockets of

today’s federal courts require that court access be denied to those

who have had an opportunity to litigate their claims in a prior

action. See, e.g., Moitie, 452 U.S. at 401 (recognizing that the

policies favoring res judicata are “even more compelling in view

of today’s crowded dockets”). “It would undermine the basic

policies protected by the doctrine of res judicata to permit [a

party] to once again avail [himself] of judicial time and energy

while another litigant, who has yet to be heard even once, waits

in line behind [him].” Car Carriers, Inc. v. Ford Motor Co., 789

F.2d 589, 596 (7th Cir. 1986). In short, allowing Criales to

maintain a second Title VII action following the Rule 12(b)(6)

dismissal of his first, untimely Title VII lawsuit interferes with

the quest for efficient docket management and strips the original

decision of its legal significance.

(Cont'd)

have a charge pending before the EEOC. E.g., Weiss v. Coca Cola Bottling

Co. of Chicago, 990 F.2d 333, 335 & n.1 (7th Cir. 1993); Prochotsky v. Baker

& McKenzie, 966 F.2d 333, 334-35 (7th Cir. 1992); Miller v. United States

Postal Serv., 825 F.2d 62, 63-64 (Sth Cir. 1987); Bailey v. USX Corp., 658 F.

Supp. 279, 281-82 (N.D. Ala. 1987), aff'd, 850 F.2d 1506 (11th Cir. 1988).

Yet res judicata is no less applicable to Title VII claims simply because

Congress saw fit to require that a plaintiff exhaust his administrative remedies

before commencing a federal court action. Prochotsky, 966 F.2d at 334-35

(concluding that plaintiff’s Title VII claim was barred by res judicata, where

her Title VII charge was pending at the EEOC at the time her original ERISA

action had been dismissed).

Moreover, unless the Second Circuit’s decision is

overturned, courts will have separate rules for determining the

preclusive effect under Rule 41(b) of limitations dismissals in

Title VII actions and limitations dismissals in all other civil

actions. Compare Criales II (App. 6a-14a) (dismissal of an

untimely Title VII action is not an adjudication upon the merits),

and Stebbins, 528 F.2d at 936 (same), with Plaut, 115 S. Ct. at

1457 (statute of limitations dismissal of federal securities law

claims operates as an adjudication upon the merits under Rule

41(b)), Shoup, 872 F.2d at 1181 (dismissal of an untimely

personal injury suit is an adjudication upon the merits), and PRC

Harris, 700 F.2d at 896-97 & n.2 (dismissal of an untimely

breach of contract action is an adjudication upon the merits).

Clearly this Court never envisioned that the pre-Title VII

decision in Costello could be applied to modify the Zipes holding

to produce such an unworkable result.

Most significantly, this Court can end this potential

confusion and disruption without burdening its docket. Because

the majority opinion of the Second Circuit so thoroughly

misapprehends settled principles of res judicata and disregards

this Court’s precedent, it would be entirely appropriate for the

Court summarily to vacate the decision of the Second Circuit

and remand with directions to dismiss the complaint.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for certiorari, summarily vacate the Second Circuit’s

decision, and remand with directions that the complaint be

dismissed on the ground of res judicata. Alternatively, the Court

should grant the petition and give the case plenary consideration.

Respectfully submitted,

CHARLES C. JACKSON

Counsel of Record

EDWARD CERASIA II

SEYFARTH, SHAW,

FAIRWEATHER &

GERALDSON

900 Third Avenue

New York, New York 10022

(212) 715-9000

DAVID S. STARR

AMERICAN AIRLINES, INC.

4333 Amon Carter Boulevard

Fort Worth, Texas 75261

(817) 967-1256

Attorneys for Petitioner

American Airlines, Inc.

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDED JANUARY 21, 1997

(105 F.3d 93)

UNITED STATES COURT OF APPEAiS

FOR THE SECOND CIRCUIT

No. 1390—August Term, 1995

(Argued: April 19, 1996 Decided: January 21, 1997)

Docket No. 95-9170

MAURICIO CRIALES,

Plaintiff-Appellant,

—

AMERICAN AIRLINES, INC.,

Defendant-Appellee.

Before:

MINER, MCLAUGHLIN, and LEVAL,

Circuit Judges.

Pro se plaintiff appeals from a judgment of the United

States District Court for the Eastern District of New

York (Glasser, J.) dismissing his discrimination com-

plaint primarily on res judicata grounds.

Appendix A

Affirmed in part, vacated in part and remanded.

Judge Miner concurs in part and dissents in part by

separate opinion.

MAURICIO CRIALES, Pro Se, Woodside,

N.Y., for Plaintiff-Appellant.

EDWARD CERASIA II, New York, N.Y., (Sey-

farth, Shaw, Fairweather & Geraldson,

New York, N.Y., Of Counsel), for Defen-

dant-Appellee.

LEVAL, Circuit Judge:

Mauricio Criales, appearing pro se, appeals from a

judgment of the United States District Court for the

Eastern District of New York (I. Leo Glasser, Senior

Judge), dismissing his complaint. The complaint alleges

in part that Criales’s employer American Airlines, Inc.

(“AA”), discriminated against him by reason of his His-

panic origin in violation of 42 U.S.C. § 2000¢ er seq.

(codifying Title VII of the Civil Rights Act of 1964).

The district court dismissed the complaint for a number

of reasons including that the Title VII claims were

barred by res judicata because of the previous dismissal

of similar claims. In the unusual circumstances of this

case, we conclude that the Title VII claims were not

barred by res judicata.

We therefore reverse that portion of the judgment

which dismissed Criales’s Title VII claims on res “1di--

cata grounds.

Appendix A

I. Background

This case has a rather complex procedural history,

which we explain here in some detail because it is cru-

cial to our decision.

Criales is an American citizen who was born in the

Republic of Colombia and is Hispanic. In November

1990, he was hired by AA to work as an airline

mechanic at John F. Kennedy International Airport. The

complaint alleges that his co-workers harassed and

ridiculed him because of his Latino origin, and that AA

officials condoned this harassment.

On December 7, 1991, AA suspended Criales while it

investigated an allegation that he had filed a false

expense report relating to his attendance at a training

course in Chicago. Criales maintains that, at the hearing

on his alleged misconduct, he tried unsuccessfully to

assert his allegations of discriminatory harassment. Cri-

ales was terminated on December 20, 1991. On March

12, 1992, he and his union contested the termination

before an arbitration panel, which upheld the dismissal.

Without the aid of counsel, Criales filed two admin-

istrative charges against AA alleging discrimination

because of his national origin. The first charge, dated

February 5, 1992, was filed with the Equal Employment

Opportunity Commission (“EEOC”) within the time

allowed by Title VII. The EEOC transferred this charge

for processing to the New York State Division of Human

Rights (“NYSDHR”). After a number of months with no

' response, Criales filed a second similar charge, dated

December 3, 1992, this time with the New York City

Commission on Human Rights (“NYCCHR”); it was

transferred for processing to the EEOC. The second

Appendix A

charge was not filed within the time allowed by Title

VII. These two charges each alleged discrimination on

the basis of national origin, and were based substantially

on the same allegedly discriminatory conduct. Compare

Brief of Appellant, Exhibit B, with id., Exhibit C. The

EEOC dismissed the December 1992 charge because it

was not timely filed, and issued a right-to-sue notice in

connection with that charge on October 26, 1993.

On November 18, 1993, after receiving the right-to-

. < notice based on the untimely December 1992 charge

(but before receiving a right-to-sue notice on his timely

charge), Criales filed a pro se complaint in the district

court. Criales then retained counsel] and amended his

complaint in several respects, adding claims under 42

U.S.C. § 1981, and pendent state law claims of defama-

tion and intentional infliction of emotional distress. AA

moved to dismiss the complaint for failure to state a

claim. The district court granted the motion, ruling that

Criales’s Title VII claims must be dismissed because the

underlying administrative charge (the one filed in

December 1992) was not timely filed. Criales v. Amer-

ican Airlines, Inc., 93 Civ. 5340 (E.D.N.Y. Nov. 17,

1994) (“Criales I’). The other claims were dismissed for

various reasons that are not of significance to this opin-

ion. On December 1, 1994, Criales, no longer repre-

sented by counsel, filed a pro se notice of appeal with

this court.

Meanwhile, his first charge was making its way

through the administrative process. As noted above, this

timely charge had been referred by the EEOC for initial

processing to the NYSDHR. On August 29, 1994, rec-

ognizing that Criales’s complaint stemming from the

second charge was being litigated in district court, the

NYSDHR dismissed the timely charge for “administra-

Appendix A

tive convenience” on the rationale that the litigation of

the second charge in the district court would resolve all

the issues raised in the first charge. On January 31,

1995, while his appeal was pending, Criales received a

right-to-sue notice on the timely charge.

Apparently seeking to inform this court that he could

now proceed on the timely charge, Criales attempted to

append his right-to-sue notice on the timely charge to his

appellate brief. AA moved to strike the right-to-sue

notice from Criales’s brief on the grounds that it had not

been in the record below. Criales then moved to with-

draw his appeal without prejudice so that he could, as he

put it in his motion papers, “seek judicial remedy in the

Eastern District of New York on the basis of a newly

issued, timely ‘Right to Sue’ letter by the EEOC.” AA

opposed the motion, and it was denied by this court on

May 26, 1995, in an order stating that Criales would be

permitted to withdraw his appeal with prejudice. On

August 8, 1995, this court granted Criales’s pro se

motion to withdraw his appeal with prejudice.!

Criales (represented again by counsel) then filed a

new complaint in the district court based on the new

right-to-sue notice granted on the first, timely charge.

AA moved to dismiss the complaint. The district court

granted the motion, ruling that Criales’s claims of dis-

crimination under Title VII were barred by res judicata.

Criales v. American Airlines, Inc., 95 Civ. 1709, 1995

WL 669900 (E.D.N.Y. Nov. 6, 1995) (“Criales IT’). The

other federal claims were dismissed on various grounds,

and the state claims were dismissed for lack of juris-

' Although Criales filed this motion pro se, he indicated at oral argu-

ment that he did so after receiving informal advice from his former

attorney.

Appendix A

diction, by reason of the absence of a valid federal claim

to which they could be appended.

This appeal followed.

II. Discussion

The primary question raised by this appeal is as fol-

lows: Where a plaintiff filed two administrative charges

alleging illegal discrimination under Title VII—one

timely, the other untimely—and instituted suit upon the

agency’s delivery of a right-to-sue notice on the

untimely charge, which suit was then dismissed by rea-

son of the untimeliness of that charge, does that dis-

missal operate as an adjudication on the merits, barring

the plaintiff from proceeding upon the timely charge?

The district court believed it did. We disagree.

The prerequisites for a suit under Title VII include a

timely filed administrative charge and timely institution

of the suit after receipt of a right-to-sue notice. See 42

U.S.C. § 2000e-5(e)(1) (timely charge) & (f)(1) (right-

to-sue notice); Alexander v. Gardner-Denver Co., 415

U.S. 36, 47, 94 S. Ct. 1011, 1019 (1974); McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct.

1817, 1822 (1973). Criales complied with both require-

ments. The only reason for the dismissal was that he had

previously filed a suit, based on an untimely adminis-

trative charge, which suit was dismissed because of the

untimeliness of the charge. Although the district court

viewed the problem as one of untimeliness, it is more

appropriately seen as one of prematurity. Had Criales

waited to file his suit until receipt of the right-to-sue

notice on the timely charge, there would have been no

defect. The superfluous untimely administrative charge

would have been irrelevant to Criales’s right to proceed

Appendix A

on his timely charge. His problem was that he filed the

initial complaint without waiting for the issuance of the

Tight-to-sue notice based on his timely charge.

Like any other dismissal for failure to exhaust admin-

istrative remedies, a dismissal of a Title VII action by

reason of a plaintiff's failure to wait for a right-to-sue

notice is not a bar to instituting the suit after the notice

is delivered. See, e.g., Johnson v. Nyack Hosp., 86 F.3d

8, 10 (2d Cir. 1996) (noting district court’s dismissal

without prejudice for failure to exhaust administrative

remedies); see also Twitty v. Smith, 614 F.2d 325, 335

n.16 (2d Cir. 1979) (dismissal for failure to exhaust state

remedies is without prejudice). There is no reason why

the result should be different here merely because plain-

tiff had filed a second administrative charge that was

superfluous and untimely.

The district court. believed the bar to suit was man-

dated by the terms of Rule 41(b) of the Federal Rules of

Civil Procedure, which provides

Unless the court in its order for dismissal otherwise

specifies, . . . any dismissal. . . , other than a

dismissal for iack of jurisdiction, [or for other spec-

ified reasons not here pertinent] operates as an adju-

dication on the merits.

The district court noted that courts have found the

administrative time limits of Title VII to be subject to

equitable tolling and estoppel and have thus considered

them to be “not jurisdictional.” Criales J], 1995 WL

669900, at *6. The court thus concluded that the dis-

missal] for untimeliness of the charge was not within the

“lack of jurisdiction” exception of Rule 41(b), and that

it operated as an adjudication on the merits.

Appendix A

The teachings of the Supreme Court in Costello

v. United States, 365 U.S. 265, 81 S. Ct. 534 (1961),

require a different analysis and result. The Court there

considered whether a district court’s dismissal of a

denaturalization action, because of the government’s

failure to file an affidavit of good cause, barred the gov-

ernment from filing a new complaint with the proper

affidavit. The district cou.t had not designated the dis-

missal as jurisdictional, nor had it stated whether the

dismissal was with or without prejudice. 365 U.S. at

268, 81 S.Ct. at 536. The Court ruled that, despite the

district court’s silence on the question, the dismissal was

jurisdictional within the meaning intended by Rule

41(b), and thus without prejudice. 365 U.S. at 285; 81 S.

Ct. at 544. The Court noted that the term “lack of juris-

diction” as used in Rule 41(b) was a term of art, 365

U.S. at 287, 81 S. Ct. at 546, encompassing failure to

comply with statutory prerequisites, 365 U.S. at 285, 81

S.Ct. at 545. Writing for the Court, Justice Brennan

referred to the exception in Rule 41(b) for certain enu-

merated dismissals that are without prejudice, and

explained:

We regard the exception as encompassing those dis-

missals which are based on a plaintiff’s failure to

comply with a precondition requisite to the Court’s

going forward to determine the merits of his sub-

Stantive claim.

365 U.S. at 285, 81 S.Ct. at 545. The origins of this

exception, according to Justice Brennan, were in the

common law rule that “dismissal on a ground not going

to the merits was not ordinarily a bar to a subsequent

action on the same claim.” Jd. Justice Brennan noted that

this principlé haa been applied at common law in many

cases involving motions to dismiss by a defendant, and

Appendix A

that Rule 41(b) did not alter this rule. He quoted Hughes

v. United States, 71 U.S. (4 Wall.) 232, 237 (1866),

accordingly: “If the first suit was dismissed for defect of

pleadings, or parties, or a misconception of the form of

proceeding, or the want of jurisdiction, or was disposed

of on any ground which did not go to the merits of the

action, the judgment rendered will prove no bar to

another suit.” 365 U.S. at 286, 81 S.Ct. at 545.

Shortly thereafter, we interpreted Costello to mean

that

the preclusive effect afforded dismissals by Rule

41(b) was intended to apply only to those situations

in which a defendant must incur the inconvenience

of preparing to meet the merits of the plaintiff’s

claims because there is no initial bar to the court’s

reaching the merits as there would be, for illustra-

tive purposes, if there were a defect in pleadings or

parties.

Nasser v. Isthmian Lines, 331 F.2d 124, 127 (2d Cir.

1964); see also Saylor v. Lindsley, 391 F.2d 965, 967,

969 (2d Cir. 1968) (in light of Costello, dismissal of

derivative suit for failure to post bond, despite being

labeled “with prejudice,” did not bar subsequent suit

by another stockholder because defendants were not

required to prepare defense and court did not reach mer-

its of plaintiff’s substantive claim); Papilsky v. Berndt,

466 F.2d 251, 256-57 (2d Cir.) (similar), cert. denied,

409 U.S. 1077, 93 S.Ct. 689 (1972); 9 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure,

Civil 2d § 2373, at 405 (1995) (“[CJourts have recog-

_ nized that Rule 41(b) does not apply in situations in

which a case is dismissed because of some initial bar to

reaching the merits of the plaintiff’s claims . . . .”);

10a

Appendix A

18 Charles A. Wright et al., Federal Practice and Pro-

cedure, Jurisdiction § 4437, at 347 (1981) (“In ordinary

circumstances a second action on the same claim is not

precluded by dismissal of a first action for prematurity

or failure to satisfy a precondition to suit.”).

Like the government’s failure to file an affidavit of

good cause in Costello, Criales’s filing of a complaint

based on an untimely underlying administrative charge,

where he also had filed a timely charge upon which he

had not yet received his right-to-sue notice, “simply con-

stituted non-fulfillment of a prerequisite to the initiation

of the proceedings.” Weston Funding Corp. v. Lafayette

Towers, Inc., 550 F.2d 710, 713 (2d Cir. 1977) (inter-

preting Costello). AA had not been “put to the necessity

of preparing a defense.” Costello, 365 U.S. at 287, 81 S.

Ct. at 546. Plaintiff had not yet fulfilled a statutory pre-

requisite to suit, but remained capable of fulfilling it.

His suit was premature.

The district court’s initial characterization of the first

dismissal as being due to Criales’s failure to satisfy a

“statutory prerequisite[ ]” was entirely correct. Criales

I, slip op. at 7, 8. The court described the dismissal in

similar terms when it dismissed the Title VII claims in

Criales’s second complaint on res judicata grounds, stat-

ing that the first dismissal had been “predicated on a

lack of a statutory prerequisite. . . .’” Criales II, 1995

WL 669900, at *6. The court went on, however, to con-

clude that a dismissal predicated on lack of a statutory

prerequisite was not based on a “lack of jurisdiction.” Jd.

In light of Costello, Nasser, and similar decisions, the

district court was drawing a distinction where one

should not have been drawn. Criales simply had failed to

comply “with a precondition requisite to the Court’s

lla

Appendix A

going forward to determine the merits of his substantive

claim.” Costello, 365 U.S. at 285, 81 S. Ct. at 545.

Because he remained capable of complying with that

precondition by instituting his suit after receipt of the

right-to-sue notice on the timely charge, the dismissal of

the first complaint should not have been found to oper-

ate as an adjudication upon the merits and as a bar to the

subsequent complaint filed after the precondition had

been satisfied. It was a dismissal “for lack of jurisdic-

tion” within the special meaning of that term in Rule

41(b), as explained in Costello. See Truvillion v. King's

Daughters Hosp., 614 F.2d 520, 524 (Sth Cir. 1980)

(“Because a dismissal for failure to meet a condition for

filing suit does not operate as an adjudication upon the

merits, it cannot bar a subsequent suit between the par-

ties.”) (internal quotations omitted).

We recognize that the district court’s dismissal of Cri-

ales’s complaint arising from his untimely charge was

styled as a dismissal for failure to state a claim under

Rule 12(b)(6) of the Federal Rules of Civil Procedure,

and that dismissals under Rule 12(b)(6) are generally

considered judgments on the merits, unless the court

specifies otherwise. See Federated Dep't Stores, Inc., v.

Moitie, 452 U.S. 394, 399 n.3, 101 S.Ct. 2424, 2428 n.3

(1981).

Nonetheless, we would not permit the choice of labels

to distort substance, especially where the consequence

would be so drastic as to deprive a party of the oppor-

tunity to be heard. Regardless whether characterized as

a failure to plead the necessary elements of his cause of

action, or as failure to comply with all the statutory pre-

requisites, the reason for the first dismissal was that

plaintiff had not waited until receipt of the right-to-sue

notice on his timely administrative charge. To consider

12a

Appendix A

it an adjudication on the merits of his discrimination

complaint is a distortion.

Furthermore, some authorities hold that a Rule

12(b)(6) dismissal “will not bar a second action if new

facts have come into existence or have been alleged for

the first time and it was the absence of these facts that

made the first complaint defective.” 9 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure,

Civil 2d § 2373, at 408 (1995) (citing cases). Here, the

pertinent new fact was that Criales’s second complaint

was based on the EEOC’s delivery of a right-to-sue

notice upon Criales’s timely charge.

The district court also noted that Criales had proce-

dural means at his disposal either to compel the issuance

of a right-to-sue notice on his timely complaint prior to

the dismissal of his first action, or to convince the court

to stay, rather than dismiss, the first action while await-

ing the issuance of the right-to-sue notice on the timely

charge. These observations were all true but, in our view,

irrelevant to whether the dismissal of the initial action

should have been considered an adjudication on the mer-

its.2 If anything, by stressing the simple procedural

devices by which Criales might have avoided the drastic

ruling, the district court’s observations underscore the

inappropriateness of denying him the opportunity to

have his claim adjudicated. Cf. Zipes v. Trans World Air-

lines, Inc., 455 U.S. 385, 397, 102 S. Ct. 1127, 1134

(1982) (“a technical reading [of Title VII] would be

‘particularly inappropriate in a statutory scheme in

2 No contrary inference may be drawn from this court's denial of

Criales’s motion to withdraw his first appeal without prejudice. The prej-

udice in question related to the appeal of the first action. There was no

suggestion that Criales’s voluntary dismissal of the appeal should bar

him from proceeding to file suit upon his timely charge, which is what

he had told this court he intended to do.

13a

Appendix A

which laymen, unassisted by trained lawyers, initiate the

process’ ”) (quoting Love v. Pullman Co., 404 U.S. 522,

527, 92 S. Ct. 616, 619 (1972)).

We noted in Fay v. South Colonie Central School Dis-

trict, 802 F.2d 21, 29 (2d Cir. 1986), that “[i]n properly

seeking to deny a litigant two ‘days in court’, courts

must be careful not to deprive him of one.” (quotation

marks and citation omitted). Because plaintiff never had

a day in court on his Title VII claims, and because his

initial suit was dismissed by reason of a curable defect—

his failure to satisfy a statutory prerequisite—we reverse

the part of the judgment which held that res judicata

barred those claims.?

3 Samuels v. Northern Telecom Inc., 942 F.2d 834 (2d Cir. 1991), does

not require a different result. In that case, the plaintiff voluntarily dis-

missed his first action “with prejudice” and his stipulation to this effect

was so ordered by the court. Under Rule 41(a) such a dismissal so

ordered with prejudice acts as an adjudication on the merits.

In contrast, the dismissal of Criales’s complaint did not arise under

Rule 41(a); rather, it was an involuntary dismissal under Rule 41(b),

imposed because of Criales's failure to wait for the right to sue letter on

his first administrative compiaint. By the terms of Rule 41(b), an invol-

untary dismissal is on the merits unless it is a dismissal for lack of juris-

diction (as well as other specified exclusions). As explained above,

Costello makes clear that a dismissal in these circumstances (for failure

to comply with a statutory prerequisite to suit) operates as a dismissal for

“lack of jurisdiction.” Unlike the dismissal in Samuels, such a dismissal

was not on the merits. Indeed, the judge did not say the dismissa! was

with prejudice. After the involuntary dismissal of his first action by rea-

son of his failure to comply with the statutory prerequisite, Criales was

free to file his second complaint without preclusion.

The dismissal “with prejudice” of Criales’s appeal in his first action

did not convert the prior dismissal of that action from one for lack of

jurisdiction to one on the merits. The judgment of the district court

remained what it was—a dismissal for lack of jurisdiction without

preciusive effect. It could not be changed by the taking or dropping of

an appeal. Thus, when Criales voluntarily dismissed his appeal from the

first action with prejudice, that terminated the first action. It did not

transform the dismissal from one for lack of jurisdiction to one on the

merits. 4

14a

Appendix A

We find no-error in the district court’s dismissal of the

remaining federal claims. As to the pendent state claims,

however, the district court dismissed these for lack of

subject matter jurisdiction because there was no federal

claim to which they could be appended. Our direction

that Title VII claims be reinstituted nullifies the ratio-

nale for that ruling. The dismissal of the state claims is

therefore also vacated.

Ill. Conclusion

The portions of the judgment dismissing plaintiff’s

Title VII claims on grounds of res judicata and dis-

missing pendent state claims are vacated. The dismissal

of the remaining federal claims is affirmed. The action

is remanded for further proceedings.

MINER, Circuit Judge, concurring in part and dissenting

in part:

Because I agree with the district court that Criales’

Title VII claims are barred by res judicata, I respectfully

dissent from so much of the majority opinion as vacates

the judgment dismissing the Title VII claims and pen-

dent state claims. I concur in the majority opinion to the

extent that it dismisses the remaining federal claims.

The prior action brought by Criales was dismissed as

to the Title VII claims for untimely filing of his second

employment discrimination complaint with the EEOC.

The majority opinion acknowledges that the dismissal of

the Title VII portion of the complaint in that action was

grounded in Criales’ failure to state a Title VII claim,

15a

Appendix A

Fed. R. Civ. P. 12(b)(6), and that such a dismissal gen-

erally is considered a judgment on the merits. See Fed-

erated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3

(1981). .

My colleagues nevertheless see the dismissal of the

prior action as being for lack of jurisdiction within the

intendment of Fed. R. Civ. P. 41(b) and therefore with-

out prejudice to the bringing of a new action based upon

the earlier timely filing with the EEOC. This analysis is

predicated in the main upon the decision of the Supreme

Court in Costello v. United States, 365 U.S. 265 (1961).

In that case, the Court held that dismissal for the gov-

ernment’s failure to file a statutorily required affidavit

of good cause in a denaturalization action was for lack

of jurisdiction under 41(b) and therefore without preju-

dice. There, the district court had not classified the dis-

missal as without prejudice or for lack of jurisdiction.

Aside from the fact that the district court in the opin-

ion giving rise to this appeal makes it clear that the dis-

missal of the previous action was not intended to have a

jurisdictional basis, precedent compels us to arrive at the

same result. The Supreme Court could not have been

more clear on this subject:

We hold that filing a timely charge of discrimi-

nation with the EEOC is not a jurisdictional pre-

requisite 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). Whatever may have been the rule in Costello, it

cannot be applied in a Title VII action involving

untimely filing with the EEOC. It is because the “statu-

tory requirement is analogous to a statute of limitations,”

16a

Appendix A

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712

(2d Cir. 1996), that dismissal for failure to comply with

the requirement is a judgment on the merits. See PRC

Harris, Inc. v. Boeing Co., 700 F.2d 894, 896-97 n.2 (2d

Cir. 1983) (holding that a-dismissal on statute of limi-

tations grounds is an adjudication on the merits for pur-

poses of res judicata).

Although the result envisioned by the foregoing is

most unfortunate, it could have been avoided. Criales

could have moved for a stay in the prior action in the

district court pending receipt of the right-to-sue letter

that resulted from the timely filing of his first adminis-

trative complaint. See Woods v. Dunlop Tire Corp., 972

F.2d 36, 41 (2d Cir. 1992). In the alternative, Criales

could have requested the district court to dismiss the

prior action without prejudice to renewal upon receipt of

the timely right-to-sue letter. Although Criales has con-

ducted the bulk of this litigation as a pro se litigant, he

did appear by counsel at various stages of the first

action. Whether the fault is that of counsel or Criales

himself, the failure to have considered these alternatives

leaves Criales in his present bind.

Because the district court properly dismissed Criales’

federal claims, it did not abuse its discretion in declin-

ing to exercise jurisdiction over his state law claims. See

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988). Criales may bring his state claims in state court

if he chooses to do so.

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17a

APPENDIX B — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NEW YORK

DATED NOVEMBER 6, 1995

(1995 WL 669900)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV-95-1709

MAURICIO CRIALES,

Plaintiff,

-against-

AMERICAN AIRLINES, INC.,

Defendant.

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

SUMMARY

This is the second action brought in this court by plaintiff

Mauricio Criales (“Criales”) in response to his employment

termination by defendant American Airlines, Inc. (“AA”). Criales

charges racial discrimination claims under Title VII of the Civil

Rights Act of 1964, codified at 42 U.S.C. §2000e er seq. (“Title

VII”) and 42 U.S.C. § 1981 (“§ 1981”), as amended by the

Civil Rights Act of 1991; and pendent state law tort claims of

intentional infliction of emotional distress, defamation, and

slander.

AA moves in the alternative for a dismissal of the complaint

18a

Appendix B

on the grounds of res judicata; for a dismissal of the complaint

pursuant to Fed. R. Civ. Proc. 12(b)(1) or (6); or for summary

judgment on the post-November 21, 1991 claims pursuant to

Fed. R. Civ. Proc. 56 which would have the effect of dismissal.

For the reasons below, AA’s motion to dismiss is granted.

FACTS

For purposes of this motion to dismiss, the following facts

are accepted as true. Plaintiff Mauricio Criales (“Criales”), is an

American citizen, is Hispanic by descent, and was born in the

Republic of Colombia. Complaint J 2. Criales was hired by

defendant American Airlines, Inc. (“AA”) on or about November

10, 1990. Complaint { 6.

Criales alleges that he experienced ridicule and harassment

by various employees of AA during his employment because

of his Hispanic or Latin ancestry. Complaint {J 7, 11, 12, 15-

16, 19, 24, 29. Criales alleges that his supervisors at AA were

aware of this harassment and condoned it. Complaint {{¥ 13-

14, 18, 27-28, 30, 36. For example, Criales alleges that a series

of pranks involving AA’s public address system caused him to

perform badly and to lose his job. Complaint JJ 25-26, 35, 42.

In addition, Criales alleges that a disparate application of AA’s

regulations caused him to be fired wrongfully.

From September 20, 1991 to October 18, 1991, Criales

and other AA employees were each allotted a $1,000 spending

allowance for attending an avionics course in Chicago.

Complaint J 44-45. Criales filed a report seeking reimbursement

of $729 for expenses incurred, including $120 in dry cleaning

receipts incurred in Queens, New York. Complaint 7 46-47.

Criales falsely reported that the $120 in dry cleaning had been

19a

Appendix B

incurred at his hotel in Chicago, relying on statements by his

co-workers that “everybody” submitted receipts for things they

had not paid for and that AA “never even bothered to check

expense reports.” Complaint { 48.

On December 7, 1991, AA placed Criales on suspension

while investigating alleged expense accounts improprieties.

Complaint { 50. Criales states that at a mandatory pretermination

AA hearing he was ignored with respect to his complaints of

harassment. Complaint { 68. On December 20, 1991, AA

permanently terminated Criales’ employment. Complaint ] 51.

On March 12, 1991, Criales and his union unsuccessfully

contested his employment termination before a three-person

arbitration panel of the American-Transport Workers Union New

York Area Board of Adjustment. Complaint { 62. Criales states

that AA employees refused to supply him with documents he

requested to prepare for the arbitration. Complaint J 63-65. At

the arbitration, Criales was not permitted to discuss

discrimination and harassment he had experienced. Complaint

q 67.

The following facts are not based on statements made by

Criales, but are based on documents submitted by AA’s counsel

(“AA Notice of Motion,” “AA Brief”), the affidavit of AA’s

counsel (“Cerasia Aff’t”), and documents of which Criales had

knowledge.

After his termination, Criales filed two discrimination

charges against AA: (1) a February 5, 1992 charge with the

EEOC (“EEOC Charge No. 160-92-1069,” “ ‘1069 Charge”),

which was transferred for processing to the New York State

Division of Human Rights (““NYSDHR”); and, after hearing

20a

Appendix B

nothing for several months from the NYSDHR, (2) a second,

December 3, 1992 charge with the New York City Commission

on Human Rights (“NYCCHR”), which was transferred for

processing to the EEOC (“EEOC Charge No. 160-93-0816,”

“ *816 Charge”). The EEOC dismissed the ‘816 Charge as

untimely filed, but on October 26, 1993 issued Criales a “right-

to-sue” notice in connection with that charge.

I. Criales I

On November 18, 1993, Criales filed a pro se complaint in

this court, Criales v. American Airlines, Inc., 93-CV-5340

(“Criales I’), based on the right-to-sue notice for the ‘816

Charge. Since many of the decisive factors in this case turn on

the disposition of Criales I, a brief synopsis follows.

After filing his initial complaint, Criales retained present

counsel. On July 29, 1994, Criales amended his complaint to

state national origin discrimination violations of Title VII and

§ 1981 and pendent state law claims of defamation and

intentional infliction of emotional distress.

This court granted AA’s motion to dismiss the Amended

Complaint in Criales I in a Memorandum and Order of

November 14, 1994 (“Memo”), familiarity with which is

presumed. Briefly, the Court made the following conclusions

and findings:

1. A timely filed charge was a prerequisite

to a federal Title VII case. Since the right-to-

sue notice on which Criales sued was

predicated on an untimely filed EEOC

charge, the Court found that Criales had

2la

Appendix B

failed to meet a prerequisite for bringing the

case. Therefore, the Title VII claims were

dismissed.

2. Section 1981 created causes of action only

for racial discrimination and that Criales’

general allegations of national origin

discrimination did not constitute claims of

racial discrimination. Furthermore, that the

1991 amendment making harassment

actionable under § 1981 applied

prospectively only to conduct occurring after

November 21, 1991. Criales failed to allege

any specific instances of harassment

occurring after the effective date of the

amendment. Therefore, the § 1981 claims

were dismissed.

3. Since the underlying federal claims were

dismissed it had no jurisdiction to consider

the pendent state law claims. Therefore, the

state law claims were dismissed.

On December 1, 1994 Criales filed a pro se Notice of Appeal

with the Court of Appeals for the Second Circuit. On January

31, 1995, during the pendency of the appeal, Criales obtained

a right-to-sue notice for the ‘1069 Charge. Criales attempted to

append the new right-to-sue notice to his appellate brief.

AA moved to strike that right-to-sue notice since it was

not in the lower court record. Criales moved to withdraw his

appeal without prejudice, which AA opposed. The Court of

Appeals permitted Criales to withdraw his appeal in Criales ]

with prejudice and denied AA’s motion to strike as moot.

22a

Appendix B

II. Criales II

This case (“Criales IT’) arises from the ‘1069 Charge, which

Criales timely filed with the EEOC on February 3, 1992. On

February 7, 1992, the EEOC notified Criales and AA by letter

(“NYSDHR Referral Letter”) that the ‘1069 Charge had been

referred for initial processing to the New York State Division of

Human Rights (“NYSDHR’’);' and that Criales and AA had

the right to request EEOC review of the NYSDHR’s decision.

Cerasia Aff’t Exh. B. The NYSDHR Referral Letter stated, “For

such a request to be honored, you must notify the Commission

in writing within 15 days of your receipt of the Agency’s final

decision and order.” Cerasia Aff’t, Exhibit B.

On August 29, 1994, the NYSDHR notifies Criales and

AA by letter (“NYSDHR Dismissal Letter”) that the ‘1069

Charge had been dismissed. Cerasia Aff’t, Exhibit C. The

NYSDHR gave “administrative convenience” as the reason for

dismissing the ‘1069 charge, explaining that Criales ] was being

litigated in Federal Court, “in which forum all the issues

concerning the question of National Origin discrimination can

be resolved.” Jd. The NYSDHR Dismissal Letter also notified

Criales and AA of their right to seek state judicial review of the

NYSDHR’s dismissal and of the accompanying waiver of their

right to federal judicial review. Jd.

As has been indicated, on January 31, 1995, during the

appeal of Criales I, Criales requested, and was given, a right-

to-sue notice for the ‘1069 Charge. Complaint, Exhibit A. On

April 28, 1995, Criales filed this complaint based on that notice.

1. The EEOC may not consider a claim until a state agency having

jurisdiction over employment discrimination complaints has had at least 60

days to resolve the matter. Section 706(c) of 42 U.S.C. § 2000e-5(c).

23a

Appendix B

On July 10, 1995, AA moved to dismiss the complaint. Oral

argument was held on October 20, 1995.

DISCUSSION

The chief issue in this case is whether the disposition of

Criales I has a preclusive effect on the plaintiff’s ability to

maintain this action. In addition, the defendant raises other

arguments in support of its motion to dismiss.

I. Motion to Dismiss Standards

When deciding a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), the court

must view all allegations in the complaint as true and draw all

reasonable inferences in favor of the plaintiff. Ortiz v. Cornetta,

867 F.2d 146, 149 (2d Cir. 1989). A complaint should not be

dismissed “unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

see also Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.

1991), cert. denied, 493 U.S. 816 (1992). The court’s

consideration of a motion to dismiss is limited to the factual

allegations in the complaint; documents incorporated by

reference into the complaint; matters of which judicial notice

may be taken; and documents either in plaintiff’s possession or

of which plaintiff had knowledge and on which plaintiff relied

in bringing suit. Brass v. American Film Technologies, Inc.,

987 F.2d 142, 150 (2d Cir. 1993).

II. Res Judicata

In general, a defense of res judicata must be affirmatively

24a

Appendix B

pleaded. Federal Rule of Civil Procedure 8(c) (“Rule 8(c)”).

However, if all relevant facts are shown by the court’s own

records, the court may uphold a defense of res judicata on a

motion to dismiss for failure to state a claim without requiring

an answer. Day v. Moscow, 955 F.2d 807 (2d Cir. 1992).

Therefore, AA has properly raised the defense of res judicata in

their motion to dismiss.

Res judicata, or claim preclusion, prevents litigation of a

matter that could have been raised and decided in a previous

suit, whether or not it was raised. Murphy v. Gallagher, 761

F.2d 878, 879 (2d Cir. 1985) (citing Migra v. Warren City

School District Board of Education, 465 U.S. 75 (1984)). A

final judgment on the merits of an action precludes the parties

from relitigating issues that were or could have been raised in

that action. Federated Department Stores, Inc. v. Moitie, 452

U.S. 394, 398 (1980).

The Second Circuit prescribed the following three

considerations for determining whether the disposition of one

claim operates as res judicata on another: (1) whether the same

transaction or connected series of transactions is at issue;

(2) whether the same evidence is needed to support both claims;

and (3) whether the facts essential to the second were present

in the first. Woods v. Dunlop Tire Corp., 972 F.2d 36, 38-39

(2d Cir. 1992), cert. denied, 113 S. Ct. 977 (1993). With these

considerations in mind, the Court will examine the possible

preclusive effect of Criales I on each of the claims raised in this

action.

III. Title VII and Section 1981 Claims

Section 1981 of 42 U.S.C. (“§ 1981”) guarantees to all

25a

Appendix B

persons within the jurisdiction of the United States the same

rights under the law as are enjoyed by white persons. 42 U.S.C.

§ 1981. Section 1981 was amended in 1991 to provide remedies

for intentional discrimination and to cover unlawful harassment

in the workplace because of race. Pub.L 102-166, Nov. 21,

1991, 105 Stat. 1071, Civil Rights Act of 1991. The effective

date of the amendment was November 21, 1991. Jd.

Title VII of the Civil Rights Act of 1964, codified at 42

U.S.C. § 2000e et seg. (“Title VII’), is both broader and narrower

than § 1981. Title VII is broader in that it covers other bases of

discrimination, such as national origin, sex or religion, whereas

§ 1981 covers only racial discrimination. Title VII is narrower

in that it provides for detailed administrative remedies that must

be exhausted before the statute’s protections may be invoked in

federal court.

Courts are not allowed to infer any positive preference for

Title VII or § 1981 where the statutes do in fact overlap.

Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

However, courts should be reluctant to read § 1981 broadly

where the result is to circumvent the detailed remedial scheme

constructed in Title VII. Jd. Therefore, although claims of

employment discrimination or harassment in the workplace due

to race could be brought under both statutes, § 1981 should

not be used to avoid the procedural prerequisites of Title VII.

A. Section 1981 Claims

Criales’ First and Second causes of action, as stated in the

Complaint, are: (1) employment discrimination based on

national origin, Complaint, {J 4-37; and (2) wrongful discharge

and disparate impact of employer regulations due to race.

26a

Appendix B

Complaint, {J 38-69. Criales states that these claims arise under

§ 1981. Criales Brief, 8 n.2.

First, there is a threshold issue of whether Criales has made

out any cognizable claims under § 1981. The Complaint states

that the First cause of action is for national origin discrimination.

Since § 1981 applies only to discrimination based on race, a

cause of action for national origin discrimination cannot be

brought under that statute. However, in the Brief, Criales treats

the First cause of action as one for discrimination based on

race, stating that “Hispanic, Latin and Race are all terms ...

which are not mere ‘national origin.’ ” Criales Brief, at 8 n.3.

In the Second Cause of Action, Criales alleges many specific

incidents where he was singled out for disparate treatment by

AA. However, the only places in which Criales alleges that the

disparate treatment was due to his race are paragraph 37, where

he incorporates by reference all the allegations in the First cause

of action, and a conclusory statement in paragraph 69, where

he states that the disparate treatment he experienced “is evocative

of a climate of racial hostility, and of intolerance for Hispanics

in particular.”

Even assuming that these thinly pleaded allegations are

sufficient to raise claims under § 1981, there remains the much

more serious hurdle of res judicata. The conduct complained of

here is essentially the same as that charged in Criales J. Both

concern Criales’ term of employment at AA, both allege facts

involving harassment over the public address system, and both

complain of discrimination regarding the expense reimbursement

investigation, the pretermination hearing, Criales’ termination,

and subsequent arbitration. The only difference here is that this

time, Criales has attributed AA’s alleged conduct to his race,

rather than his national origin.

CRS Kae trea aur PAE: a os Arne

27a

Appendix B

Since the harassment and discrimination claims here arise

out of the same transaction, evidence, and facts as those in Criales

I, Criales cannot allege any differences as a reason for raising

§ 1981 claims again. Woods, 972 F.2d at 38-39. That Criales

may have pleaded these claims with more specificity this time

or attributed the alleged discrimination to a different factor does

not create different transactions, evidence, or facts.

The § 1981 claims based on these transactions, evidence,

and facts were dismissed in Criales J for failure to state a claim.

A dismissal for failure to state a claim under Rule 12(b)(6) is a

“judgment on the merits” for purposes of res judicata, Federated

Department Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981).

Therefore the dismissal of the § 1981 claims in Criales ] is a

“judgment on the merits” for purposes of res judicata.

Since a final judgment on the merits precludes the parties

from relitigating issues that could have been raised in a prior

action, Federated Department Stores, 452 U.S. at 398, and since

Criales could have raised § 1981 claims of racial discrimination

as well as national origin discrimination in Criales I, the Court

holds that res judicata precludes Criales from bringing a claim

against AA under § 1981 for workplace harassment occurring

between November 20, 1990 and December 20, 1991.

B. Title VII Claims

Criales argues that the dismissal of Criales J has no res

judicata effect on his Title VII claims because that case was

predicated on an untimely filed charge. In doing so, Criales

draws an analogy between the dismissal of Criales ] and a

dismissal for lack of jurisdiction pursuant to Federal Rule of

Civil Procedure 41(b) (“Rule 41(b)”).?

2. ... Unless the court in its order for dismissal

(Cont'd)

28a

Appendix B

The analogy is inapposite. Ordinarily, a timely filed EEOC

charge is a condition precedent to bringing suit in federal court

under Title VII. Smith v. American President Lines, Ltd., 571

F.2d 102, 105 (2d Cir. 1978) (citing United Air Lines, Inc. v.

Evans, 431 U.S. 553, 555 n.4 (1977)); Edmonston v. MGM

Grand Air, Inc., 808 F.Supp. 197, 202 (E.D.N.Y. 1992)

(opinion of this court citing cases).

Although a timely filed EEOC charge has been called a

“jurisdictional prerequisite,” see, e.g., Alexander v. Gardner-

Denver Co., 415 U.S. 36, 47 (1974); Smith v. American

President Lines, Ltd., 571 F.2d 102, 108 (2d Cir. 1978), the

Second Circuit has given the requirement of timeliness the effect

of a statutory prerequisite in all but the most extraordinary

circumstances. Dillman v. Combustion Engineering, Inc., 784

F.2d 57, 60 (2d Cir. 1986).? Because they are subject to equitable

tolling and estoppel, “Title VII’s administrative time limits are

not jurisdictional.” Weiss v. Coca-Cola Bottling Co. of Chicago,

(Cont'd)

otherwise specifies, a dismissal under this subdivision

and any dismissal not provided for in this rule, other

than a dismissal for lack of jurisdiction, for improper

venue, or for failure to join a party under Rule 19,

operates as an adjudication on the merits.

Rule 41(b) (emphasis added).

3. For example, tolling of the time periods provided by statute may be

appropriate where the defendant has actively misled the plaintiff respecting

the cause of action, where the plaintiff has in some extraordinary way been

prevented from asserting his rights, or where the plaintiff has raised the precise

Statutory claim in issue but has mistakenly done so in the wrong forum.

Smith, 571 F.2d at 108) (citing Electrical Workers v. Robbins & Myers, Inc.,

429 U.S. 229, 237 n.10 & 238 (1976)).

29a

Appendix B

990 F.2d 333, 335 n.1 (7th Cir. 1993) (citing Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 398 (1982)); see also Bayer

v. U.S. Dept. of Treasury, 956, F.2d 330, 332 (D.C. Cir. 1992).

Rather, “timely filing and receipt of a right-to-sue letter is a

Statutory pre-requisite to bringing a Title VII claim.”

Edmonston, 808 F.Supp. at 202 (citing Miller v. International

Telephone & Telegraph Corp., 755 F.2d 20, 22-23 (2d Cir.),

cert. denied, 474 U.S. 851 (1985)) (emphasis in original).

The Court finds no extraordinary circumstances applicable

here. Criales was represented by counsel in Criales J and thus

had a means of acquiring knowledge of his rights and

responsibilities under Title VII. Smith, 571 F.2d at 109-110.

Criales I was dismissed for lack of a timely filed EEOC charge.

Since a timely filed EEOC charge is a prerequisite to bringing

suit under Title VII, the dismissal of Criales I was predicated

on a lack of a statutory prerequisite, not a “lack of jurisdiction.”

Therefore, Criales cannot avail himself of the exception provided

by Rule 41(b).

Since the Title VII claims here concern largely the same

transactions, facts, and evidence as in Criales I, Criales’ only

argument against the application of res judicata is an appeal to

the discretion of the Court to construe narrowly the preclusive

effect of Criales I. Criales essentially argues that the issuance of

the right-to-sue notice for the ‘1069 Charge implicates different

“transactions, facts, or evidence” warranting a new case. The

Court would have to find that Criales “could not have raised”

the Title VII claims relating to the ‘1069 Charge in Criales / in

order to permit Criales to raise them now.

Since “[a] party cannot escape the requirements of full faith

and credit and res judicata by asserting its own failure to raise

30a

Appendix B

matters clearly within the scope of a prior proceeding,” Kremer

v. Chemical Construction Corp., 456 U.S. 461, 465 n.4 (1982),

the issue is whether Criales’ lack of a valid right-to-sue notice

was caused by his own failure or by circumstances over which

he had no control. The Court finds the cause to be the former.

While the absence of a valid right-to-sue notice may have

rendered the claims in the ‘1069 Charge an improper subject

for Criales I,‘ Criales failed to exercise available options for

obtaining such a notice. Although the Court must draw all

reasonable inferences in favor of the plaintiff, Ortiz, 867 F.2d

at 149, the most reasonable inference that can be drawn from

the pleadings is that Criales simply did not follow proper

administrative procedure for obtaining a right-to-sue notice for

the ‘1069 Charge.

Criales ascribes his delay in bringing this action to his

“previous inability to obtain a right-to-sue notice.” He explains

that “the EEOC failed to provide a timely right-to-sue notice

before this Court’s dismissal of [Criales I],” but Criales has not

alleged or made any showing that he attempted to obtain a right-

to-sue notice or was in any way prevented from receiving one.

Criales ignored at least one of the most obvious alternatives

for preserving his rights with regard to the ‘1069 Charge: EEOC

review of the state agency’s decision. The NYSDHR Referral

Letter informed Criales of his duty to request EEOC review, if

desired, within fifteen days after the dismissal of the charge by

4. Since the December 3, 1992 charge was given a separate file number

by the EEOC and was not consolidated with the February 5, 1992 charge,

and since Criales had not obtained the requisite right-to-sue notice in

connection with the February 5, 1992 charge, it was not a proper subject for

Criales 1. See Smith, 571 F.2d at 105, n.7.

3la

Appendix B

NYSDHR. Since the NYSDHR Dismissal Letter notified Criales

on August 29, 1994 that the charge had been dismissed, Criales

could have requested review until about September 15, 1994.

Since EEOC review would have been conducted only at the

request of Criales, Criales cannot now assert his own failure to

request review as “inability” to obtain a right-to-sue letter, absent

a showing that he was refused such a request.

Criales also failed to pursue another means of obtaining

review of the state agency dismissal of the ‘1069 Charge: state

court review. Under New York election-of-remedies provisions,

a state court lacks jurisdiction over employment discrimination

claims once a charge is filed with a state agency, such as the

NYSDHR. Buscemi v. Pepsico, Inc., 726 F.Supp. 99, 100

(S.D.N.Y. 1989) (citing New York Executive Law § 297(9)

(McKinney 1982 & Supp. 1989). A complainant’s right to bring

suit is restored if the NYSDHR dismisses the complaint on the

grounds of administrative convenience. Jd. Criales should have

been aware that state court review was available, since the

NYSDHR Dismissal Letter dated August 29, 1994 notified him

of this option.

Finally, Criales failed to exercise an independent means of

pursuing the allegations in the ‘1069 Charge: federal agency

proceedings. Subsection (c) of 42 U.S.C. § 2000e-5(c)

(“subsection (c)”) provides that in “deferral” states such as New

York,* a claimant may file a charge directly with the EEOC

after sixty days of the commencement of state agency review,

5. New York is a state “which has a local law prohibiting the unlawful

employment practice alleged and establishing or authorizing a State or local

authority to grant or seek relief from [alleged unlawful employment]

practice[s}” within the meaning of subsection (c). See, e.g., Weise v. Syracuse,

522 F.2d 397, 411-12 (1975).

32a _

Appendix B

or upon termination of such review, whichever is earlier. Since

Criales filed the ‘1069 Charge on February 5, 1992, and since

NYSDHR began review of the ‘1069 Charge on February 7,

1992, Criales could have filed a charge with the EEOC pursuant

to subsection (c) sixty days after the commencement of

NYSDHR’s proceedings, or in April 1992. New York Gaslight

Club, Inc. v. Carey, 447 U.S. 54, 64 (1980).

If the EEOC then dismissed the charge, Criales would have

received in due course a right-to-sue notice under 42 U.S.C.

§ 2000e-5(f)(1) (“subsection (f)(1)”).° Since Criales never filed

an EEOC charge pursuant to subsection (c), the EEOC could

not have dismissed the charge, nor filed a civil action on behalf

of Criales, nor entered into a conciliation agreement to which

Criales was a party. As a result, the EEOC did not notify Criales

of any of these occurrences pursuant to subsection (f)(1). Hence,

Criales received no “right-to-sue” notice.

If Criales had chosen to pursue any of these options, he

could have stayed Criales J and then sought leave of the Court

6. Ifacharge filed with the Commission . . . is dismissed

by the Commission, or if within one hundred and

eighty days from the filing of such charge or the

expiration of any period of reference under subsection

filed a civil action ... or the Commission has not

entered into a conciliation agreement to which the

person aggrieved is a party ... 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.

42 U.S.C. § 2000e-5(f)(1) (emphasis added).

33a

Appendix B

to amend the complaint to add a Title VII claim based on a

proper right-to-sue notice. Woods, 972 F.2d at 40-41. Therefore,

the Court finds that Criales’ failure to obtain a timely right-to-

sue letter for the ‘1069 Charge does not justify the

commencement of a new federal court case.

In lieu of exercising these options, the proper course for

challenging the dismissal of Criales 1 would have been for

Criales to pursue a direct appeal or a motion to modify or to

vacate the judgment pursuant to Federal Rule of Civil Procedure

60. An adverse judgment from which no appeal has been taken

is res judicata and bars any future action on the same claim.

Federated Department Stores, 452 U.S. at 399 n.4. Much as he

may regret it now, Criales voluntarily gave up his right to attack

the dismissal of Criales I when he withdrew the appeal with

prejudice. If Criales had maintained his appeal, the Second

Circuit might have held, as it did in Dalessandro v. Monk, 864

F.2d 6 (2d Cir. 1988), that the suit should have been stayed

rather than dismissed, and then modified or reversed the

judgment accordingly.

The Court cannot grant relief here that Criales should have

sought in a previous action. The res judicata implications on a

final, unappealed judgment on the merits are not altered by the

fact that the judgment may have been wrong. Federated

Department Stores, 452 U.S. at 398. Criales seems to argue

that his pro se status during the appeal should somehow excuse

the withdrawal of the appeal with prejudice. Since Criales was

represented by counsel during the motion to dismiss and before

withdrawing his appeal, he had ample opportunity to exercise

any of these options. The Court finds his failure to do so

insufficient to exempt him from the effect of res judicata.

34a

Appendix B

In making this finding, the Court is well aware that Title

VII requirements “exist not for their own sake, but rather in

furtherance of dispute resolution through accommodation rather

than litigation.” Weise v. Syracuse, 522 F.2d 397, 412 (1975)

(citing Love v. Pullman Co., 404 U.S. 522, 527 (1972)).

Nevertheless, the plaintiff cannot reopen the door to the federal

courts after voluntarily closing them behind him. Since Title

VII's time limitations are “specifie[d] with precision,” Alexander

v. Gardner-Denver Co., 415 U.S. 36, 47 (1974), and since

“[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 litigants,” Baldwin County

Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (per

curiam), the Court cannot waive procedural requirements

because the plaintiff failed on the first try.

Sound policy reasons underlie the Court’s finding that

Criales is precluded from making a second Title VII complaint

for essentially the same behavior at issue in Criales /. if a plaintiff

could file multiple EEOC complaints for the same conduct and

were allowed to commence a separate action for each right-to-

sue notice, a claimant could continue to sue on different notices

until he achieved a favorable result. The administrative

provisions of Title VII would be meaningless if a claimant could

assert his own failure to invoke them as a basis for preserving

the right to bring innumerable federal judicial proceedings. See

Soso Liang Lo v. Pan American World Airways, Inc., 787 F.2d

827, 828 (2d Cir. 1986). For all these reasons, the court finds

that res judicata prevents Criales from bringing the Title VII

claims in this action.

IV. Failure to State a Claim

Even if, as plaintiff urges, the Court treated this case as a

35a

Appendix B

“different transaction” in order to escape the effect of claim

preclusion, there would be other difficulties for Criales to

surmount. The Court would have to consider whether the

Complaint is within the scope of the underlying EEOC charge

as well as the possible adverse effects of plaintiff’s 52-month

delay in bringing this action.

A. Scope of Complaint

A district court only has jurisdiction to hear Title VII claims

that are included in an EEOC charge or that are based on conduct

“reasonably related” to that alleged in the EEOC charge. Butts

v. City of New York Dept. of Housing, 990 F.2d 1397, 1401

(2d Cir. 1993). To do otherwise would defeat the policy

underlying the notice provision, which is “to encourage

settlement of discrimination disputes through conciliation and

voluntary compliance.” Jd.

Criales urges the court to construe claims of racial

discrimination as “reasonable outgrowths” of the ‘1069 Charge.

In the ‘1069 Charge, Criales marked “national origin” as the

basis for discrimination and added

I allege that I have been discriminated against

on the basis of my national origin (Colombia)

in violation of Title VII of the Civil Rights

Act of 1964, as amended, in that there is

inconsistency in Respondent's disciplinary

policy.

The Court does not find racial discrimination claims

“reasonably related” to Criales’ underlying charge, which alleged

only national origin discrimination. Criales could have included

36a

Appendix B

“racial discrimination” as a basis for the ‘1069 Charge, but did

not. Since Criales did not allege racial discrimination in the

‘1069 Charge, Criales cannot now broaden his complaint to

include racial discrimination claims against AA.

In addition, the Court considered the difference between

national origin discrimination and racial discrimination in

Criales I and found the difference substantial. Memo, at 10

(“the Supreme Court did not interpret racial discrimination so

broadly as to include discrimination based on ‘national origin’ ’’)

(citing Saint Francis College v. Al-Khazraji, 481, U.S. 604,

613 (1987)). To allow Criales to sue on racial discrimination

claims where the underlying EEOC Charge alleged only national

origin discrimination would enable Criales to circumvent this

Court’s previous distinction and render the “reasonably related”

standard all but meaningless.

Since Criales’ underlying EEOC charge does not allege

racial discrimination, Criales’ Title VII claims of racial

discrimination are not claims on which relief can be granted.

Therefore, dismissal of Criales’ claims of racial discrimination

would be appropriate in any event under Rule 12(b)(6).

B. Statute of Limitations

Even assuming that the Court should treat the claims

deriving from the ‘1069 Charge as an independent cause of

action, the Court would have to consider the effects of Criales’

long delay in bringing this action.

A court should look to state statutes of limitations for

§ 1981 actions. Goodman v. Lukens Steel Co., 482 U.S. 656,

660-62 (1987); Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir.),

37a

Appendix B

cert denied, 498 U.S. 869 (1990). The applicable statute of

limitations in New York is three years. Id.; Butts, 990 F.2d, at

1412. Since the alleged discriminatory conduct ended on

December 20, 1991, Complaint, 51, and since this action was

commenced on April 28, 1995, more than three years after the

alleged discrimination ended, New York law would bar the

§ 1981 claims. The pendent state law claims would be similarly

barred.

Criales admits that the three-year statute of limitations would

ordinarily bar this action, but argues that his § 1981 claims and

pendent state law claims are subject to equitable tolling due to

his “continued attempts to bring this case to a trial on the merits.”

However, for the reasons discussed above under “Res Judicata:

Title VII Claims,” the Court finds that Criales did not diligently

pursue proper procedures for bringing this case to trial. For

example, Criales could have instituted a state court action well

within the New York statute of limitations, or sought a stay of

Criales I while he obtained a proper right-to-sue letter.

Therefore, equitable tolling of the statute of limitations is

unwarranted. The Court finds that the statute of limitations

would bar Criales from maintaining the § 1981 and pendent

State law actions at this time.

Vv. Summary Judgment

AA moves this court in the alternative for an order

dismissing Criales’ post-November 21, 1991 harassment claims

pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”).

The Local Civil Rules of the Eastern District of New York

provide in part that

38a

Appendix B

Upon any motion for summary judgment

pursuant to Rule 56 of the Federal Rules of

Civil Procedure, there shall be annexed to

the notice of motion a separate, short and

concise statement of the material facts as to

which the moving party contests there is no

genuine issue to be tried. Failure to submit

such a statement constitutes grounds for

denial of the motion.

Local Civil Rule 3(g) (“Rule 3(g)”). AA, the moving party,

provided such a statement.

The party opposing a motion for summary judgment must

submit a statement of material facts as to which it contends

there is a genuine issue to be tried. Jd. The local rules further

provide:

All material facts set forth in the statement

required to be served by the moving party

will be deemed to be admitted unless

controverted by the statement required to be

served by the opposing party.

Id. (emphasis added).

Criales did not submit any statement in opposition to AA’s

Local Rule 3(g) statement. Therefore, the Court deems the facts

in AA’s Rule 3(g) statement to be admitted. The Court finds

that a grant of summary judgment in favor of AA would be

appropriate as an alternate basis for dismissal of this portion of

defendant’s complaint. Dusanenko v. Maloney, 726 F.2d 82,

84 (2d Cir. 1984) (per curiam).

39a

Appendix B

VI. Pendent State Claims

Criales concedes that if AA’s motion to dismiss is granted

as to the § 1981 and Title VII causes of action, there is no

supplemental basis for pendent jurisdiction for the Third and

Fourth causes of action, his state law claims. Criales Brief, at 6

n.1. Accordingly, those claims are dismissed for lack of subject

matter jurisdiction. Dunton v. County of Suffolk, 729 F.2d 903,

910-11 (2d Cir. 1984).

VII. Relief

AA moves this court for an award of costs, attorney fees,

and other appropriate relief. The Federal Rules of Civil

Procedure provide for the award of costs “as of course” to the

prevailing party unless the court otherwise directs. Fed. R. Civ.

Proc. 54(d)(1); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

U.S. 437 (1987). The Court hereby directs otherwise and AA’s

motion for an award of costs and attorney’s fees is hereby denied.

CONCLUSION

For the reasons discussed above, Criales is precluded from

asserting Claims against AA of wrongful termination under Title

VII and claims of harassment or discrimination under 42 U.S.C.

§ 1981. As a result, the Court lacks supplemental jurisdiction

to consider the state law claims of defamation, slander, and

intentional infliction of emotional distress. Accordingly,

defendant’s motion to dismiss is granted; defendant’s motion

for costs and attorney’s fees is denied; and the plaintiff’s

complaint is dismissed in its entirety.

40a

Appendix B

SO ORDERED

Dated: November 6th, 1995

Brooklyn, New York

s/ I. Leo Glasser

I. Leo Glasser, U.S.D.J.

Copies of the foregoing Memorandum and Order were this

day sent to:

Joseph A. Bondy, Esq.

Canton & Jasper

276 Fifth Avenue

New York, New York 10001

Edward Cerasia II, Esq.

Seyfarth, Shaw, Fairweather & Geraldson

900 Third Avenue

New York, New York 10022

4la

APPENDIX C — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NEW YORK

DATED NOVEMBER 14, .¥3 |

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV-93-5340

MAURICIO CRIALES,

Plaintiff,

-against-

AMERICAN AIRLINES, INC.,

Defendant.

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

This is a motion to dismiss brought by defendant American

Airlines, Inc. pursuant to Federal Rule of Civil Procedure

12(b)(6). In its Notice of Motion, American Airlines also requests

an award of costs and attorneys’ fees.

BACKGROUND

For purposes of this motion to dismiss, the following facts

are accepted as true. Plaintiff Mauricio Criales (“Criales”) was

employed by defendant American Airlines as a commercial

airline mechanic from, on or about November 10, 1990 to

December 20, 1991. Amended Complaint ] 6. Criales, an

42a

Appendix C

American citizen, was born in Colombia and is of Colombian

descent. Amended Complaint { 5.

During the term of his employment, Criales alleges, he was

subjected to ridicule and harassment by various employees of

American because of his “Colombian ethnicity” and national

origin. Amended Complaint { J 7-10, 12-20, 22-23, 26, 27-29.

Criales’ superiors and supervisors at American were aware, he

alleges, that other employees were ridiculing him. Amended

Complaint 7 ¥ 11, 19, 21.

Criales was suspended by American Airlines on December

7, 1991, and was terminated by American, after an investigation

into alleged expense account improprieties, on December 20,

1991. Amended Complaint { ¢ 43, 44. Criales had been sent to

a training course in Chicago from September 20, to October 18,

1991, and had been given a one thousand dollar spending

allowance for that period. Amended Complaint { { 37 - 38.

Criales filed an expense report indicating that he had spent

$729.00 of the $1,000 during the month-long course. Amended

Complaint { 39. Included in the $729 was $120 for dry cleaning

expenses incurred in Queens, New York while Criales was home

visiting his wife and children. Amended Complaint { 40. Criales

reported those expenses as having been spent at the Ramada

Inn in Chicago, based on his understanding from fellow

mechanics that “ ‘everybody’ submitted receipts with their

expense vouchers for things they had not paid for,” and that

American did not check expense reports. Amended Complaint

{ 41. Criales also believed that he was entitled to charge his

drycleaning expenses to American. Amended Complaint { 41.

Criales further alleges; on information and belief, that he “was

singled out for investigation and was the only employee of

ls csaeaenaininiinhamnaateaieiaeaiiaiiitiiaaasinitel

43a

Appendix C

defendant American who had been investigated and terminated

for expense report falsification since the course’s inception.”

Amended Complaint { 50.

In March 1992, Criales and his union presented his

complaint to a three-member arbitration panel that confirmed

that Criales’ termination was for “just cause.” Amended

Complaint { 45; Defendant’s Memorandum in Support of its

Rule 12(b)(6) Motion to Dismiss (“Defendant’s Memo”), p. 9.

Criales was not supplied with documents he requested in order

to prepare for the arbitration and was precluded from discussing

the acts of harassment at the arbitration hearing. Amended

Complaint ¥ J 46-48. Criales also states that American’s

management did not consider his complaints of discriminatory

harassment and his dry cleaning receipts from Queens, during

his pre-termination hearing. Amended Complaint { 49.

The following facts are not based on statements made by

Criales, but are based on documents submitted by American

Airlines’ counsel, together with his affidavit. Although there is

some disagreement as to whether Criales’ attorney had these

documents in his possession, it does not appear to be disputed

that Criales had knowledge of the relevant documents. On

February 5, 1992, Criales filed a complaint under Title VII of

the Civil Rights Act of 1964 with the Equal Employment

Opportunity Commission (“EEOC”), which referred it to the

New York State Division of Human Rights (“NYSDHR”) on

February 7, 1992. Cerasia Aff’t, Exhibits B, C. In that complaint,

Criales states that he “experienced harassment” during his

employment with American and that he had been discriminated

against on the basis of national origin, in that American’s

disciplinary policy was inconsistently applied. Cerasia Aff’t

Exhibit B. The date of the violation complained of is December

44a

Appendix C

20, 1991, the date of Criales’ termination. Thus, this claim

appears to be limited to a charge of wrongful termination.

Criales also filed a complaint, against American and various

employees of American, with the New York City Commission

on Human Rights (“NYCCHR”) on December 3, 1992, which

was referred to the EEOC on January 6, 1993. Cerasia Aff’t

Exhibit A. That complaint alleged specific acts of harassment

and charged that American Airlines “discriminated against him

in the terms and conditions of his employment and terminated

his employment of the basis of his national origin” in violation

of the Administrative Code of the City of New York. Cerasia

Aff’t, Exhibit A, { 18. Criales also charged that American

Airlines “violated Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e et seg., on the basis of his national

origin.” Cerasia Aff’t, Exhibit A, { 19.

Criales’ December 3, 1992 claim was dismissed by the

EEOC because it was untimely filed and a “right to sue” notice

was issued on October 26, 1993. Amended Complaint, Exhibit

A. Criales filed a complaint in this court on November 18, 1993;

this Motion to Dismiss is addressed to the Amended Complaint

dated July 29, 1994. On August 10, 1994, the NYSDHR issued

a notice of its intention to dismiss Criales, February 5, 1992

claim because this claim had been filed in this court. Cerasia

Aff’t, Exhibit D. The NYSDHR did, thereafter, dismiss the claim

on August 29, 1994. Defendant’s Reply Memorandum in Further

support of it Rule 12(b)(6) Motion to Dismiss (“Defendant’s

Reply Memo”), Exhibit 7.

The Amended Complaint alleges four causes of action:

(1) “Employment harassment based upon national origin,”

Amended Complaint { { 4-29; (2) “Wrongful discharge from

45a

Appendix C

employment based on national origin,” Amended Complaint

{ { 30-51; (3) “Defamation based on libel and slander per se,”

Amended Complaint ¥ ¥ 52-61; and (4) “Intentional infliction

of emotional distress.” Amended Complaint { 7 62-64.

DISCUSSION

I. Motion to Dismiss Standards

When deciding a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6), the court must view all allegations

in the complaint as true and draw all reasonable inferences in

favor of the plaintiff. Ortiz v. Cornetta, 867 F.2d 146, 149 (2d

Cir. 1989). A complaint should not be dismissed “unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957); see also Easton v.

Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied,

493 U.S. 816, 112 S. Ct. 1943, 118 L.Ed 2d 548 (1992). The

court’s consideration of a motion to dismiss is limited to the

factual allegations in the complaint; documents incorporated by

reference into the complaint; matters of which judicial notice

may be taken; and documents either in plaintiff’s possession or

of which plaintiff had knowledge and relied on in bringing suit.

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150

(2d Cir. 1993).

As an initial matter, plaintiff asks the court to ignore Criales’

December 3, 1992 complaint filed with the City of New York

Commission on Human Rights, and the NYSDHR’s notice of

intention to dismiss the initial complaint filed by Criales.

Plaintiff’s Memorandum in Opposition to Defendant’s Motion

to Dismiss (“Plaintiff’s Memo”) p.4, fn. 4. Plaintiff’s attorney

46a

Appendix C

contends that he had neither knowledge nor possession of these

documents at the time the Amended Complaint was filed and,

accordingly, they may not be relied upon.' However, there does

not seem to be any dispute as to plaintiff's knowledge or

possession of these documents. Accordingly, the court may rely

on these documents in considering this motion to dismiss. Cortec

Indus., Inc. v. Sum Holding Co., 949 F.2d 42, 48 (2d Cir. 1991),

cert. denied, 112 S.Ct. 1561 (1992).

Il. Title VII claims

The timely filing of a charge with the EEOC and the receipt

of a right-to-sue notice are statutory prerequisites to bringing a

Title VII claim in the federal courts. See, e.g., Edmonston v.

MGM Grand Air, Inc., 808 F.Supp. 197, 202 (E.D.N.Y. 1992).

As such, these requirements are subject to equitable modification

when appropriate. Hladki v. Jeffrey’s Consol. Ltd., 652 F.Supp.

388, 392 (E.D.N.Y. 1987).

Criales clearly has not satisfied the statutory prerequisites

to filing a Title VII claim. At the time he filed his complaint,

Criales had received a right-to-sue notice based on an untimely

filed charge (the December 3, 1992 charge). The complaint was

not based on the charge that Criales had timely filed (on February

5, 1992) with the EEOC — that claim was before the NYSDHR

(to which it had been deferred by the EEOC) when Criales filed

his complaint in federal court. Thus, the only Title VII claim

before this court is one based on the untimely charge that Criales

filed with the NYCCHR on December 3, 1992.

1. Ignoring these documents, plaintiff contends that, due to

administrative error, a new case number was issued with respect to the

complaint filed by Criales on February 5, 1992 and that, as a result of that

renumbering, it was dismissed as untimely filed. Plaintiff's Memo, p. 3.

47a

Appendix C

This court, in Hladki, reviewed the reasons that would

justify equitable modification of the statutory prerequisites to a

Title VII action:

“(1) when a claimant has received

inadequate notice; (2) when a motion for

appointment of counsel is pending; (3) when

a court has led a plaintiff to believe that he

or she has done everything required;

(4) when affirmative misconduct by a

defendant has lulled a plaintiff into inaction

[citations omitted] ...;(5) when a ‘plaintiff

has in some extraordinary way been

prevented from asserting his rights’;

(6) when a plaintiff ‘has raised the precise

Statutory claim in issue but has mistakenly

done so in the wrong forum’ [citations

omitted] ...; (7) when a right to sue letter

has been received subsequent to

commencement of a Title VII action and

while the action is still pending, [citations

omitted] ...; or (8) when the EEOC or

Attorney General has incorrectly refused to

__ issue a right to sue letter [citations omitted].”

Hladki, 652 F. Supp. at 393. Criales has not alleged that entitled

to equitable consideration on the basis of any of these factors.

Instead, Criales asserts that the right-to-sue letter on which he

sued mistakenly referred to an untimely filed charge because of

administrative error (that is, the renumbering of his original

claim). Plaintiff’s Memorandum, p. 15. However, plaintiff’s

claim of “bureaucratic inefficiency” is not supported by the

documents. Plaintiff makes no attempt to correlate his claims

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Appendix C

for relief to these documents, but rather asks the court to ignore

several of the documents related to claims that he filed, and

grant relief from the statutory prerequisites to a Title VII claim

based on this revised state of events.”

Because Criales’ claim is based on an untimely filed charge,

he has not satisfied the statutory prerequisites for a Title VII

claim. Neither has Criales presented this court with reasons

justifying equitable modification of those requirements.

Accordingly, defendant’s motion to dismiss Criales’ Title VII

claims is granted.

III. Substantive claims: Federal Law

Section 1981 claims: Plaintiff’s remaining federal claims

are brought under section 1981, which prohibits discrimination

by reason of race in making and enforcing contracts. Prior to

the 1991 Act, harassment claims were not actionable under 42

U.S.C. § 1981. Patterson v. McLean Credit Union, 491 U.S. 164

(1989). Section 101 of the 1991 Act amended § 1981, effectively

overruling Patterson, by defining the term “make and enforce

contracts” to include “the making, performance, modification,

and termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.”

42 U.S.C. § 1981(b). The 1991 Act amendment to § 1981 does

not apply to conduct prior to November 21, 1991. Rivers v.

Roadway Exp., Inc., 114 §.Ct 1510, 1519-20 (1994).

Furthermore, because the 1991 Act created liabilities for conduct

2. In any event, a reading of the supporting documents in accordance

with plaintiff's suggestion would limit his Title VII claim to one for wrongful

discharge, as that was the only discrimination charged in Criales’ February

5, 1992 complaint. However, Criales relies solely on § 1981 in prosecuting

his wrongful discharge claim. Plaintiffs Memorandum pp. 21, 27-31.

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Appendix C

that had no legal consequences previously, such pre-1991 Act

conduct cannot be considered in determining the existence of a

cause of action under § 1981. Tillman v. St. Vincent’s Hospital,

1992 WL 426882 (S.D.N.Y.). Thus, in determining whether

Criales has an actionable claim for harassment under § 1981,

the court can only consider the conduct of defendant from

November 21, 1991 until December 7, 1991 (the date Criales

was suspended).

Before considering Criales’ § 1981 claim, the court must

consider whether the statute embraces discrimination based on

national origin. In Saint Francis College v. Al-Khazraji, 481 U.S.

604 (1987), the Supreme Court held that racial discrimination

includes discrimination against “identifiable classes of persons

. . Solely because of their ancestry or ethnic characteristics.” Jd.

at 613. The Supreme Court recognized that the “racial

discrimination” that Congress intended to forbid could not be

understood “in terms of modern scientific theory.” at 613.

Although “§ 1981, ‘at a minimum,’ reaches discrimination

against an individual ‘because he or she is genetically part of

an ethnically and physiognomically distinctive grouping of homo

sapiens,’ . . .a distinctive physiognomy is not essential to qualify

for § 1981 protection.” Jd. However, the Supreme Court did not

interpret racial discrimination so broadly as to include

discrimination based on “national origin.” Thus, the Supreme

Court stated “If respondent . . . can prove that he was subjected

to intentional discrimination based on the fact that he was born

an Arab, rather than solely on the place or nation of his origin,

... he will have made out a case under § 1981.” Jd. (emphasis

added).

Although plaintiff, in his memorandum in opposition to this

motion, attempts to equate national origin with “ancestry and

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Appendix C

prevailing characteristics,” the allegations in the complaint rely

strictly on national origin. The Supreme Court’s holding in Saint

Francis prec)udes the plaintiff’s argument that the term “national

origin” is “synonymous with his ancestry and ethnic

characteristics.” Plaintiff’s Memorandum, pp. 30 -31. Thus,

because Criales’ § 1981 claim for wrongful discharge is based

on “national origin,” that claim must be dismissed.

Similarly, except for a general allegation that “From the

second day of his employment until the moment of his

termination on December 20, 1991, Mr. Criales was subjected

to intentional and continuous public ridicule and harassment

with respect to his Colombian ethnicity,” the acts complained

of as the basis for Criales’ § 1981 claim relate to discrimination

based on national origin. Amended Complaint { ¥ 1, 7. Criales

alleges only one specific act of harassment based on “Colombian

ethnicity.” However, that act occurred from “on or about

November 20, 1990 to November 27, 1990,” prior to the effective

date of the 1991 Act. Amended Complaint { 10. Accordingly,

Criales’ harassment claim under § 1981 must also be dismissed.

IV. Arbitration Board’s Non-neutrality

In his memorandum opposing this motion, Criales attacks

the neutrality of the arbitration board that heard his claim.

Although the Amended Complaint did not seek to set aside the

board’s decision, Criales asserts that the board’s non-neutrality

“when proven through further discovery, constitutes sufficient

grounds to overturn the board’s decision.” Plaintiff’s

Memorandum, p. 2, n.2.

The bases on which a court may set aside the arbitration

board’s decision are limited to those set forth in Section 153

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Appendix C

First (q) of the Railway Labor Act: non-compliance, ultra-vires

acts and fraud/corruption. See Union Pac. R.R. Co. v. Sheehan,

439 U.S. 89, 93 (1978). Criales, in relying on Pacific & Arctic

Ry. & Navigation Co. v. United Transp. Union, 952 F.2d 1144,

1149 (9th Cir. 1991), appears to be implying that the arbitration

board’s partiality constitutes fraud.

As this court said in Weik v. American Airlines, CV-91-2617,

to demonstrate fraud or corruption, a plaintiff must show more

than “partiality,” citing as examples cases in which one board

member lied and misrepresented facts to other board members,

or in which a party (or board member) had bribed a board

member. Pacific & Arctic Ry. & Navigation Co., the case relied

on by Criales, also involved something more than partiality in

the arbitration board’s proceedings. In that case, an arbitration

board member who exhibited partiality also had ex parte contacts

with a member of the union’s board.

The Amended Complaint filed by Criales includes

allegations indicating that Criales was unable to obtain

documents he requested in order to prepare for the arbitration

proceeding and that he was precluded from discussing the

harassment which he had experienced during the arbitration

proceedings. Amended Complaint ¥ { 46 - 48. Although these

allegations might conceivably suggest partiality on the part of

the arbitration board, they fail to allege anything more, which

would be required for “partiality” to rise to the level of “fraud

or corruption.” See Weik, at p. 3.

Accordingly, this claim should be dismissed.

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Appendix C

V. State Law Claims

This-court’s dismissal of plaintiff’s federal claims compels

the dismissal of his state law claims for lack of subject matter

jurisdiction. Dunton v. County of Suffolk, 729 F.2d 903, 910-

911. Accordingly, this court will not discuss the merit of Criales’

state law claims for defamation and intentional infliction of

emotional distress.

CONCLUSION

Because plaintiff's complaint fails to set forth facts which

would entitle him to relief, defendant’s motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) is granted. American Airlines’

request for an award of costs and attorneys’ fees is denied.

SO ORDERED.

Dated: Brooklyn, New York

November 14th 1994

53a

APPENDIX D — DENIAL OF PETITION FOR

REHEARING EN BANC OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

FILED APRIL 23, 1997

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

GEORGE LANGE III

CLERK

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse, Foley

Square, in the City of New York, on the twenty-third day of

April one thousand nine hundred and ninety-seven.

Dkt. No: 95-9170

Criales

Appellant,

American Airlines

Appellee.

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed herein by the appellee

American Airlines, Inc.,

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Appendix D

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED. .

It is further noted that the suggestion for rehearing in banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

By: s/ Beth J. Meador

Beth J. Meador,

Administrative Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.