Bovell v. Local 1974 Dry Wall Tapers Union D.C. 9

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
GRADEY V. BOVELL,
Plaintiff,
-against-
LOCAL 1974 DRY WALL TAPERS UNION D.C.
9,
Defendant.
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MEMORANDUM & ORDER
24-CV-2194(EK)(SDE)
ERIC KOMITEE, United States District Judge:
Plaintiff Gradey Bovell worked as a drywall taper.
For more than twenty years, he was a member of the Local 1974
Dry Wall Tapers Union, relying on the union to send him to
construction sites. 	Plaintiff brought this action against Local
1974 after he was left without work for more than a year.
Proceeding pro se, he alleges that Local 1974 discriminated
against him on the basis of race, age, and disability, and
brings claims under various federal civil rights laws.
Local 1974 has moved to dismiss, arguing that
plaintiff’s claims are time-barred. 	For the reasons set out
below, the motion to dismiss is granted.
Background
The following facts are taken from the complaint and
assumed to be true. 	The Court also takes judicial notice of
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exhibits attached to the complaint. 	See Hayden v. County of
Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
Plaintiff joined Local 1974 in 1996. 	Compl. 7, ECF
No. 1.1 	Local 1974 sends its members to work at specific job
sites. 	Id. at 13. 	Plaintiff suffered a heart attack in 2018,
when he was in his late fifties, and took medicine to manage his
heart condition thereafter. 	Id. at 7, 13. 	After union
leadership learned of his heart attack, plaintiff alleges, he
“barely” received opportunities to work. 	Id. at 7. 	He did work
on a few short-term projects from December 2019 to February
2020. 	Id. at 13. 	During that time, plaintiff told one foreman
at a jobsite that he suffered from prostate cancer. 	Id. at 7.
Plaintiff took a few days off, and the employer managing that
job site did not retain him thereafter, despite having made
promises to do so. 	Id. 	Plaintiff wrote to union leadership
describing these concerns and asking for additional work. 	Id.
at 13. 	These efforts failed; he did not work a union job for
eighteen months. 	Id. at 7. 	He resigned from the union at some
point in 2021. 	Id. at 4-5.
1 “Taping is the traditional process for finishing interior walls
constructed with gypsum wallboard, which is also referred to as ‘drywall’ and
as ‘sheetrock.’” 	Drywall Tapers & Pointers of Greater New York, Loc. 1974 v.
Loc. 530 of the Operative Plasters' & Cement Masons’ Int’l Ass’n, No. 93-CV-
154, 2005 WL 638006, at *2 (E.D.N.Y. Mar. 17, 2005). 	Unless otherwise noted,
when quoting judicial decisions this order accepts all alterations and omits
all citations, footnotes, and internal quotation marks.
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On June 8, 2023, plaintiff filed a charge with the
Equal Employment Opportunity Commission (EEOC). 	Id. at 6.
After receiving a right-to-sue letter, he timely filed this
lawsuit.2 	Plaintiff brings claims under Title VII of the Civil
Rights Act of 1964,3 the Age Discrimination in Employment Act
(ADEA), and the Americans with Disabilities Act (ADA).
Local 1974 moved to dismiss, arguing that plaintiff’s
EEOC charge was untimely. 	Plaintiff did not respond. 	The Court
notified plaintiff it would deem this motion fully briefed if he
did not file a response by July 15, 2025. 	Docket Order dated
June 30, 2025. 	Plaintiff did not so file, and the Court now
deems the motion fully briefed.
Legal Standard
On a motion to dismiss, “the court’s task is to assess
the legal feasibility of the complaint.” 	Lynch v. City of New
York, 952 F.3d 67, 75 (2d Cir. 2020). 	In doing so, the court
“must take the facts alleged in the complaint as true, drawing
all reasonable inferences in [the plaintiff’s] favor.” 	In re
NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir.
2007). 	Pro se complaints are “held to less stringent standards”
2 Plaintiff received a right-to-sue letter on January 29, 2024. 	ECF No.
1, at 10. 	He filed this lawsuit on March 22, 2024, well within the ninety-
day requirement set by statute. 	42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. §
626(e); 42 U.S.C. § 12117(a).
3 In his complaint, plaintiff indicated that Local 1974 discriminated
him on the basis of race, color, age, and disability. 	Compl. 5. 	However,
the complaint does not include any allegations about his race or color.
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than pleadings drafted by attorneys, and the court will read a
pro se complaint liberally and interpret it as raising the
strongest arguments it suggests. 	Erickson v. Pardus, 551 U.S.
89, 94 (2007); Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 191 (2d Cir. 2008).
Still, a pro se plaintiff is not exempt from
“compliance with relevant rules of procedural and substantive
law.” 	Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). 	Thus,
to survive a motion to dismiss, the complaint must plead
sufficient “facts to state a claim to relief that is plausible
on its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	Courts
“are not bound to accept as true a legal conclusion couched as a
factual allegation,” and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.” 	Id.
A defendant’s motion to dismiss may raise the
affirmative defense that a claim is time-barred. 	Staehr v.
Hartford Fin. Servs. Grp., 547 F.3d 406, 425-26 (2d Cir.
2008). 	“A complaint may be dismissed on the basis of an
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affirmative defense,” such as the untimely filing of an EEOC
charge, if “the facts supporting the defense appear on the face
of the complaint.” 	Domitz v. City of Long Beach, 737 Fed. App’x
589, 590 (2d Cir. 2018).
Discussion
Plaintiff’s claims are time-barred because he did not
file a charge with the EEOC inside the requisite window and
tolling does not apply.
A plaintiff must timely file a charge with the EEOC
before bringing an employment discrimination claim in federal
court. 	See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109 (2002) (the Title 42 timeline “specifies with precision the
prerequisites that a plaintiff must satisfy before filing
suit”). 	“A claim is time barred if it is not filed within [the
statutory] time limits.” 	Id.; see also Banks v. Gen. Motors,
LLC, 81 F.4th 242, 259 (2d Cir. 2023) (“This statutory
requirement operates as a statute of limitations.”). 	“A Title
VII plaintiff must file a charge with the EEOC within 180 days
of the violation” if they have not first filed with a state or
local agency. 	Cole v. Millard Fillmore Hosp., 116 F.3d 465 (2d
Cir. 1997); 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a)
(incorporating Title VII’s prerequisites in the ADA). 	“In a
State that has an entity with the authority to grant or seek
relief with respect to the alleged unlawful practice” — as New
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York does — “an employee who initially files a grievance with
that agency must file the charge with the EEOC within 300 days
of the employment practice.” 	Nat’l R.R., 536 U.S. at 109; 42
U.S.C. § 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA).
And under the ADEA, a New York plaintiff must file the charge
within 300 days, even if they have not filed with a state
entity. 	Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d
Cir. 1999); 29 U.S.C. § 626(d)(1)(B).4
Here, it is apparent from the face of plaintiff’s
complaint that his EEOC charge came after the 300-day window and
is thus untimely. 	Plaintiff’s complaint alleges discriminatory
acts over a time period terminating in 2021. 	Compl. 4
However, he filed his EEOC charge on June 8, 2023 — more than a
year later. 	Id. at 6.
In rare cases, courts will invoke the doctrine of
equitable tolling to excuse noncompliance with the 300-day
deadline. 	But equitable tolling “is only appropriate in rare and
exceptional circumstances in which a party is prevented in some
extraordinary way from exercising his rights.” 	Zerilli-
4 Plaintiff filed a charge with the EEOC, but not with a New York
authority. 	Thus, the statutes suggest that his ADA and Title VII claims are
subject to a 180-day limitations period, while his ADEA claims are subject to
a 300-day limitations period. 	“The Second Circuit, however, has held that
Title VII and ADA charges filed with the EEOC from New York are deemed to be
simultaneously filed with the appropriate New York state agency pursuant to
the EEOC’s regulations and are therefore entitled to the 300-day limitations
period.” 	Cruz v. City of New York, No. 21-CV-1999, 2021 WL 5605139, at *4
n.5 (S.D.N.Y. Nov. 30, 2021) (citing Tewksbury, 192 F.3d at 327-28).
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Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d
Cir. 2003). 	Plaintiff’s complaint does not plausibly plead that
he has met the requirements for equitable tolling: that he (a)
acted with reasonable diligence during the time period he seeks
to have tolled; and (b) has demonstrated that the circumstances
are sufficiently extraordinary that the doctrine should
apply. 	Id. at 80-81. 	Pro se status alone is not a basis to
invoke equitable tolling. 	A pro se plaintiff, like any other
litigant, must act diligently, see South v. Saab Cars USA, Inc.,
28 F.3d 9, 12 (2d Cir. 1994), and make a “specific personal
showing of extraordinary circumstances” that prevented him from
meeting his filing deadline. 	Pianoforte v. Little Red Sch.
House, 2022 WL 2713659, at *5 (S.D.N.Y. July 13, 2022).
Because plaintiff is proceeding pro se, the Court will
afford him an opportunity to amend his complaint to plead such
facts. 	See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Conclusion
For the foregoing reasons, Local 1974’s motion to
dismiss is granted. 	Plaintiff may amend his complaint by March
6 to allege that he acted with reasonable diligence and that
extraordinary circumstances barred him from timely filing an
EEOC charge. 	If plaintiff has not amended his complaint by that
date, the Clerk of Court will be directed to enter judgment and
close this case.
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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that no appeal from this order would be taken in good faith, and
therefore denies in forma pauperis status for such purpose.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962). 	The
Clerk of Court is respectfully directed to mail a copy of this
order to plaintiff and to note the mailing on the docket.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 4, 2026
Brooklyn, New York
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