Employment cases are often difficult to prove, and even the best-intentioned litigants with objectively reasonable factual and legal support for their claim(s) sometimes lose. It happens. Case outcomes are very difficult to predict, due to a variety of factors.
A Memorandum and Order issued by Southern District Judge J. Paul Oetken last week in Tucker v. MTA, 11-cv-05781, however, should serve as a cautionary tale to employment litigators (and litigators in general).
Plaintiff filed the case pro se, but later retained counsel to prosecute his claims against the MTA and LIRR for alleged violations of the ADA, ADEA, and state tort and contract law. Defendants moved to dismiss.
The court dismissed all of plaintiff’s claims as being time barred. For example, while plaintiff alleged that he was constructively discharged in December 2004, he did not file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission – which generally must be filed within 300 days of the alleged discrimination – until more than six years later. The court rejected plaintiff’s argument that the statute of limitations should have been tolled because his “extensive health and age related illnesses up to the present” constitute “continuing violations”, citing the well-established rule that “the 300–day rule is tolled when there is a continuous chain of discriminatory acts, not when the injury from the discriminatory acts continues past the 300–day deadline.” (Emphasis in original)
But the court also, on its own, invoked invoked Federal Rule of Civil Procedure 11(c), which provides the mechanism for sanctioning frivolous, harassing, or unsupported litigation arguments:
[O]n January 18, 2012, [plaintiff’s counsel] wrote a letter to this Court, explaining that he had been retained by Tucker. … In that letter, [plaintiff’s counsel] averred that he would “represent Mr. Tucker properly and fully professionally,” a promise that he did not fulfill, as evidenced by the frivolous arguments contained in the Opposition to Defendant’s Motion to Dismiss filed with this Court.
More than anything else, this Court is troubled by the fact that [plaintiff’s counsel] appears to have accepted money from Tucker to litigate a case that was meritless and in which Tucker had no chance in succeeding, given its obvious untimeliness under applicable law. This Court’s concern about the nature of [plaintiff’s counsel]’s legal practice is compounded by “his history of filing briefs laden with inaccuracies; ignoring controlling precedent; and disregarding the court’s authority. Accordingly, [plaintiff’s counsel] will be ordered to show cause why he should not be sanctioned, as set forth below.
Ouch.