     10-4117-cv
     Dykstra v. Wyeth Pharmaceuticals, Inc.


                                        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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
 2   Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
 3   of January, two thousand twelve.
 4
 5   PRESENT:
 6
 7         JOSEPH M. MCLAUGHLIN,
 8         JOSÉ A. CABRANES,
 9         DEBRA ANN LIVINGSTON,
10                Circuit Judges.
11   _____________________________________
12
13   JOSEPH W. DYKSTRA,
14
15                       Plaintiff-Appellant,
16
17                       v.                                                  10-4117-cv
18
19   WYETH PHARMACEUTICALS, INC.,
20
21               Defendant-Appellee.
22   ______________________________________
23
24
 1   FOR APPELLANT:                        BARRY D. HABERMAN, New City, N.Y.
 2
 3   FOR APPELLEE:                         JAMES H. MCQUADE (Michael Delikat, on the brief), Orrick,
 4                                         Herrington & Sutcliffe, LLP, New York, N.Y.
 5
 6          Appeal from a judgment of the United States District Court for the Southern District of

 7   New York (Cathy Seibel, Judge).

 8          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 9   AND DECREED that the judgment of the District Court is AFFIRMED.

10          Plaintiff-appellant Joseph Dykstra (“Dykstra”) appeals from a judgment entered September

11   16, 2010, granting the motion for summary judgment of defendant-appellee Wyeth Pharmaceuticals

12   (“Wyeth”). The District Court granted Wyeth’s motion solely on the basis that the applicable

13   statute of limitations had expired before Dykstra filed his complaint. We assume the parties’

14   familiarity with the underlying facts, procedural history of the case, and the issues on appeal.

15          Dykstra was employed by Wyeth as an aseptic setup worker, with responsibilities including

16   setting up and maintaining equipment used to fill biological syringes. As a union employee, his

17   employment was governed by the terms of a Collective Bargaining Agreement (“CBA”) between

18   Wyeth and the International Chemical Workers Union, Local 143c. Pursuant to the CBA, “[a]n

19   employee whose action appears to necessitate his/her discharge shall first be suspended subject to

20   discharge and so be informed. If no request for grievance procedure is made within seven (7) days,

21   the action taken by the Company shall become final.”

22          On or about March 29, 2007, Wyeth learned that Dykstra had signed the initials of other

23   employees on documents that Wyeth maintained as part of its obligation, as a manufacturer

24   regulated by the Food and Drug Administration (“FDA”), to document its compliance with FDA


                                                      2
 1   requirements for good manufacturing practices. Section IV of the Wyeth Manufacturing Employee

 2   Manual provides that “[i]ntentional falsification of a cGMP document [that is, a document that

 3   confirms compliance with FDA good manufacturing practices] by any employee will result in

 4   immediate suspension pending discharge!” On April 17, 2007, Dykstra’s supervisor issued him a

 5   notice of suspension pending discharge for falsifying cGMP documents. He was immediately

 6   escorted from the facility and relieved of his facility entrance card and employee badge. Dykstra’s

 7   pay was halted the same day.

 8          Within the seven days allotted by the CBA, Dykstra, through his union, filed a grievance.

 9   A hearing was held on May 22, 2007 before the Associate Director of Labor Relations. By letter

10   of June 11, 2007, the Associate Director advised Dykstra that he had been found responsible for

11   falsifying cGMP documents and therefore his employment was terminated effective June 11, 2007.

12          On June 6, 2008, Dykstra filed a complaint in the Supreme Court of the State of New York,

13   Rockland County, alleging that he was terminated in retaliation for reporting safety violations to a

14   supervisor.1 This termination, he claimed, violated the New York “whistle-blower statute,” N.Y.

15   Labor Law § 740, which prohibits an employer from taking “any retaliatory personnel action against

16   an employee” because the employee discloses to a supervisor or public body an activity, policy or

17   practice of the employer that violates a “law, rule or regulation which violation creates and presents

18   a substantial and specific danger to the public health or safety, or which constitutes health care

19   fraud.” N.Y. Lab. Law § 740(2)(a). Dykstra alleged that he was discharged in retaliation for

20   reporting to a supervisor in March 2007 that he had observed two maintenance workers in a “clean



            1
              The case was subsequently removed to the Southern District of New York on the basis
     of diversity jurisdiction under 28 U.S.C. § 1441.

                                                       3
 1   room” failing to comply with sterilization procedures and lacking proper certification, in violation

 2   of Wyeth policies.2

 3           Section 740 permits an employee who believes he has been retaliated against in violation of

 4   the statute to “institute a civil action . . . within one year after the alleged retaliatory personnel action

 5   was taken.” Id. The dispositive question before the District Court, therefore, was whether

 6   Dykstra’s cause of action accrued on April 17, 2007, when he was notified of his suspension

 7   pending discharge, or June 11, 2007, the effective date of his termination. The District Court

 8   concluded that his cause of action accrued on April 17, 2007, and that his complaint, filed June 6,

 9   2008, was thus barred by the one-year statute of limitations. It accordingly granted Wyeth’s motion

10   for summary judgment.

11           “We review de novo the district court’s grant of summary judgment, drawing all factual

12   inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101,

13   107 (2d Cir. 2008). “Summary judgment is proper only when, construing the evidence in the light

14   most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the

15   movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.

16   2011) (quoting Fed. R. Civ. P. 56(a)). Having conducted a de novo review of the record and

17   considered the parties’ submissions, we agree with the District Court that Dykstra’s claim is barred

18   by the statute of limitations. See Dykstra v. Wyeth Pharmaceuticals, Inc., No. 08-CV-07432 (S.D.N.Y.

19   Sept. 16, 2010).



             2
              Wyeth has argued that, because the violation that Dykstra allegedly reported was of
     company policies, and not a “law, rule or regulation,” he cannot state a claim under § 740. Because
     we agree with the District Court that the statute of limitations bars Dykstra’s action, we need not
     reach that issue.

                                                          4
 1           In arriving at its conclusion that Dykstra’s cause of action accrued on April 17, 2007, when

 2   he was notified of his “suspension pending discharge,” the District Court relied on case law

 3   interpreting statutes of limitation governing comparable federal employment discrimination laws.

 4   Though Dykstra, too, relied on these federal cases below, he now argues that we should look

 5   exclusively to New York state law.

 6           On appeal, Dykstra has cited one New York case, Dobson v. Loos, 716 N.Y.S.2d 220 (4th

 7   Dep’t 2000), which, he contends, provides an interpretation of § 740’s statute of limitations that

 8   supports his position. The Appellate Division held in Dobson that where a Sheriff’s Department

 9   took “active and extraordinary measures to preclude [the plaintiff’s] appointment as Lieutenant

10   during the life of [a] preferred eligibility list until its expiration”—including repeatedly promoting

11   others ahead of the plaintiff—this constituted a continuing violation such that the plaintiff could

12   bring a cause of action within one year of the expiration of the eligibility list. Id. at 221.

13           The ongoing and repeated failure to promote the plaintiff in Dobson is entirely different from

14   Dykstra’s termination. As noted above, the CBA governing Dykstra’s employment with Wyeth

15   effectively prohibits Wyeth from terminating an employee without first suspending him pending a

16   grievance proceeding: “An employee whose action appears to necessitate his/her discharge shall first

17   be suspended subject to discharge and so be informed.” Furthermore, if the employee does not

18   request a grievance proceeding within seven days of this notification, “the action taken by the

19   Company shall become final.” (Emphases added.) In other words, no separate personnel action is

20   required to terminate the employee once notice of suspension pending discharge is provided. The

21   actual termination, therefore, flows as an inevitable consequence from the notice of suspension, and

22   only the potential intervening act of the grievance hearing officer can separate the two. Under these


                                                        5
 1   circumstances, Dykstra’s notice of suspension and his ultimate discharge are properly viewed as one

 2   personnel action, which occurred on April 17, 2007.

 3              Indeed, the New York Court of Appeals expressly adopted this reasoning in Queensborough

 4   Community College v. State Human Rights Appeal Board, 41 N.Y.2d 926 (1977). The court in that case

 5   considered an employment discrimination statute which, similarly to N.Y. Labor Law § 740(4)(a),

 6   provided that “[a]ny complaint filed pursuant to this section must be so filed within one year after

 7   the alleged unlawful discriminatory practice.” Id. at 926 (quoting N.Y. Exec. Law § 297(5)). The

 8   Queensborough court held that the statute of limitations for the employment-discrimination claim

 9   began running as soon as the plaintiff was informed that she would not be reappointed—not, as

10   that plaintiff had argued, on the date that her term of employment actually ended—because “[t]he

11   act of giving complainant notice that she would not be reappointed gave rise immediately to a cause

12   of action.” Id. (internal quotation marks omitted). “Nor is the limitation tolled by the invocation

13   of grievance procedure which is merely an alternative remedy,” the New York Court of Appeals

14   added.3 Id. Accordingly, under New York law, the statute of limitations for Dykstra’s claim began

            3
                Under New York law, it is possible that § 740’s statute of limitations would be tolled for
     the duration of Dykstra’s grievance proceedings if the CBA contractually required Dykstra to
     exhaust the grievance procedures before bringing an action in court, such that the grievance
     procedures were not an independent “alternative remedy” from that provided by § 740. See
     Queensborough, 41 N.Y.2d at 926; Bargstedt v. Cornell Univ., 757 N.Y.S.2d 646, 648 (3d Dep’t 2003)
     (“While [the statute of limitations] will be tolled when the grievance procedure is mandatory, it will
     typically not be tolled where a voluntary grievance procedure is employed.” (citations omitted));
     Roufaiel v. Ithaca Coll., 660 N.Y.S.2d 595, 598 (3d Dep’t 1997) (“Our examination of the record
     discloses that the College’s grievance procedure was not mandatory; instead it merely provided
     plaintiff with an alternative forum in which to seek to vindicate her rights. In light of this, her
     invocation of the grievance procedure did not toll the running of the Statute of Limitations.”
     (citations omitted)). Dykstra, however, has made no argument with respect to tolling in this appeal;
     accordingly, the issue is waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues
     not sufficiently argued in the briefs are considered waived and normally will not be addressed on
     appeal.”); cf. Higgins v. N.Y. Stock Exch., Inc., 942 F.2d 829, 832 (2d Cir. 1991) (noting that a

                                                       6
1   running on April 17, 2007, when he was notified of the adverse employment action. Dykstra

2   commenced this lawsuit more than one year later; the District Court was therefore correct to grant

3   the motion for summary judgment on statute-of-limitations grounds.

4          We reject all of Dykstra’s arguments on appeal. Accordingly, the judgment of the District

5   Court is AFFIRMED.

6                                                  FOR THE COURT:
7                                                  Catherine O’Hagan Wolfe, Clerk
8




    plaintiff’s “equitable tolling point did not suffice to alert the district court to the time-of-accrual
    claim”).

                                                      7
