17-279-cv
Smith v. Met. Museum of Art

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of September, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             JOSÉ A. CABRANES,
             RICHARD C. WESLEY,
                           Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X

    JAMES SMITH,
             Plaintiff-Appellant,

                 -v.-                                               17-279-cv

    THE METROPOLITAN MUSEUM OF ART, JOHN
    AND JANE DOES 1-10, XYZ CORP. 1-20,
    LOCAL UNION 1503, DISTRICT COUNCIL 37,
    AFSCME AFL-CIO,
             Defendants-Appellees.

    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                        RUDY A. DERMESROPIAN, Law Office
                                          of Rudy A. Dermesropian, LLC,
                                          New York, NY.

                                             1
FOR APPELLEES:             CLIFFORD R. ATLAS (Suzanne E.
                           Peters on the brief), Jackson
                           Lewis P.C., New York, NY, for
                           defendants-appellees
                           Metropolitan Museum of Art, John
                           and Jane Does 1-10, and XYZ
                           Corp. 1-20.

                           MAUREEN M. STAMPP (Jessica N.
                           Tischler on the brief), Kaufman
                           Dolowich & Voluck, LLP, New
                           York, NY, for defendant-appellee
                           Local Union 1503, District
                           Council 37, AFSCME AFL-CIO.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Rakoff, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     James Smith sued his union (Local Union 1503, or “the
Union”) and his former employer (the Metropolitan Museum of
Art, or “the Museum”), alleging (1) age discrimination
against the Museum, and (2) breach of the duty of fair
representation against the Union.1 The United States
District Court for the Southern District of New York
(Rakoff, J.) dismissed the complaint on motion, concluding
that his claims against the Museum were released and that
his claims against the Union were time-barred. We review
that determination de novo. See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir. 2008). We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.



    1
      Smith’s operative complaint also asserted a claim for
the Union’s breach of fiduciary duty and both parties’
breach of a collective bargaining agreement; but Smith’s
briefs do not address these claims on appeal, so they are
deemed abandoned.
                             2
     1. The Museum fired Smith because it believed that he
had defaced Egyptian statues. Smith disputed the Museum’s
allegation and instituted a grievance procedure to challenge
his termination. Before that process concluded, Smith, the
Union, and the Museum entered into a settlement agreement
(“the Release”), in which the Museum agreed to pay Smith
six-and-a-half months of salary in exchange for his waiver
of all potential claims against the Museum. The Release
provides:

    Smith . . . hereby voluntarily, knowingly, and
    willingly waives (i.e. gives up) and releases the
    Museum and [associated entities] from, any and all
    claims, rights, debts, liabilities, demands, and
    causes of action, known or unknown, arising under
    federal[,] state, local, or common law, . . .
    including but not limited to claims arising from
    his employment with the Museum or the termination
    of his employment . . . .

J. App’x at 20.

     Smith argues that he revoked the Release before it took
effect. The Release provides for revocation:

    Smith has seven (7) days after he signs this
    Agreement to revoke it by notifying the Museum in
    writing. The Agreement will not become effective
    or enforceable until the seven (7) day revocation
    period has expired[.]

J. App’x at 23 (emphasis added).

     Smith failed to allege that he complied with the
revocation procedures set out in the Release. The operative
complaint states that, within the designated time period, he
instructed his attorney to revoke the Release; but the
complaint does not state that Smith’s attorney (or anyone
else) communicated that intent to the Museum in writing.
Smith also alleges that he informed the Museum’s general




                             3
counsel of his intent to revoke the Release.2 But the
complaint does not allege that Smith informed the general
counsel within the seven-day period, or whether the
notification was in writing. Therefore, Smith has not
alleged that he validly revoked the Release. Consequently,
all of Smith’s claims against the Museum are barred by the
Release.3

     2. Smith argues that if his Union-appointed attorney
failed to communicate Smith’s revocation of the Release to
the Museum, then the Union would have breached its duty of
fair representation. The statute of limitations for such a
claim is six months, beginning “when the employee knew or
should have known of the breach.” Carrion v. Enter. Ass’n,
Metal Trades Branch Local Union 638, 227 F.3d 29, 34-35 (2d
Cir. 2000) (per curiam) (quotation marks omitted).

     Smith filed his claim more than six months after the
limitations period began to run. Smith signed the Release
on October 2, 2015. The Release became effective on October
9, 2015, seven days after execution. The Release required
the Museum to send Smith a check for six-and-a-half months
of salary within thirty days of the effective date, that is,
by November 9, 2015. Smith admitted that he received the
check. By the time Smith received the check, he should have
known that his intent to revoke the Release had not been
communicated to the Museum. Therefore, the statute of

    2
      Smith’s complaint actually alleged that he informed
“Sharon Cox,” a member of the Museum’s Board of Directors,
of his intent to withdraw. His brief states this was error;
he actually informed “Sharon Cott,” the Museum’s general
counsel.
    3
      Smith’s reply brief argues that the Release does not
bar his age discrimination claims brought pursuant to New
York State and City law because the Release “do[es] not
specifically release the [Museum] from those claims.”
Appellant’s Reply Br. at 11 (emphasis added). This argument
is frivolous. The Release waives “any and all claims . . .
arising under federal[,] state, local, or common law,” and
in fact does reference the New York State and City Human
Rights Laws (under which Smith brought his claims). J.
App’x at 20-21.
                             4
limitations began to run at least by November 9, 2015.
Because Smith did not file his initial complaint until
August 2016, more than six months later, his claim against
the Union is time-barred.

     For the foregoing reasons, and finding no merit in
Smith’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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