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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 906

## Text

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97.152 JUL 2 2 1997
No.

Orrice Ur ine CLenk

In The

Supreme Court of the United States

th

October Term, 1996
AMERICAN AIRLINES, INC.,
Petitioner,
V.
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.

i

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.

ul

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

iv
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

vi

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:
Be Us BERR) 8 6 oc ncceasdvudsweed epee l
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

12

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17a

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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

a

2

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

3

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

4

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).

5

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

6

(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.

7

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).

8

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

9

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”).

10

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.

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 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

11

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).

12

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.

13

(“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).

14

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

.

15

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.

16

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

17

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)

18

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).

19

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.

20
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.

la

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.

2a

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.

3a

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

4a

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-

Sa

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.

6a

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

0

Ta

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.

8a

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

9a

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
(c) ..., whichever is later, the Commission has not
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

48a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1118%3A1. Public record. Not legal advice.