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 e ffect. 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 ci ting a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electr onic 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 St ates Court of Appeals for the Second Circuit, held at the Daniel 1 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 4 thday 2 of January, two thousand twelve. 3 4 PRESENT: 5 6 J OSEPH M. M C L AUGHLIN , 7 J OSÉ A. C ABRANES , 8 D EBRA ANN LIVINGSTON , 9 Circuit Judges

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_____________________________________ 11 12 J OSEPH W. D YKSTRA , 13 14 Plaintiff-Appellant , 15 16 v. 10-4117-cv 17 18 W YETH P HARMACEUTICALS , I NC ., 19 20 Defendant-Appellee

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______________________________________ 22 23 242 FOR APPELLANT: B ARRY D. H ABERMAN , New City, N.Y. 1 2 FOR APPELLEE: J AMES H. M C Q UADE (Michael Delikat, on the brief ), Orrick, 3 Herrington & Sutcliffe, LLP, New York, N.Y. 4 5 Appeal from a judgment of the United States District Court for the Southern District of 6 New York (Cathy Seibel, Judge ). 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 8
AND DECREED that the judgment of the District Court is AFFIRMED

. 9 Plaintiff-appellant Joseph Dykstra (“Dykstra”) appeals from a judgment entered September 10 16, 2010, granting the motion for summary judgme nt of defendant-appellee Wyeth Pharmaceuticals 11 (“Wyeth”). The District Court granted Wyeth’s motion solely on the basis that the applicable 12 statute of limitations had expired before Dykstra filed his complaint. We assume the parties’ 13 familiarity with the underlying facts, procedural history of the case, and the issues on appeal. 14 Dykstra was employed by W yeth as an aseptic setup work er, with responsibilities including 15 setting up and maintaining equipment used to fill biological syringes. As a union employee, his 16 employment was governed by the terms of a Collective Bargaining Agreement (“CBA”) between 17 Wyeth and the International Chemical Workers Uni on, Local 143c. Pursuant to the CBA, “[a]n 18 employee whose action appears to necessitate his/ her discharge shall first be suspended subject to 19 discharge and so be informed. If no request for grievance procedur e is made within seven (7) days, 20 the action taken by the Company shall become final.” 21 On or about March 29, 2007, Wyeth learned that Dykstra had signed the initials of other 22 employees on documents that Wyeth maintained as part of its obligation, as a manufacturer 23 regulated by the Food and Drug Administration (“FDA”), to document its compliance with FDA 241 The case was subsequently removed to the So uthern District of New York on the basis of diversity jurisdiction under 28 U.S.C. § 1441.
3 requirements for good manufacturing practices. Section IV of the Wyeth Manufacturing Employee 1 Manual provides that “[i]ntentional falsificati on of a cGMP document [that is, a document that 2 confirms compliance with FDA good manufacturing practices] by any employee will result in 3 immediate suspension pending di scharge!” On April 17, 2007, Dykstra’s supervisor issued him a 4 notice of suspension pending discharge for fals ifying cGMP documents. He was immediately 5 escorted from the facility and r elieved of his facility entrance card and employee badge. Dykstra’s 6 pay was halted the same day. 7 Within the seven days allotted by the CBA, Dykstra, through his union, filed a grievance. 8 A hearing was held on May 22, 2007 before the Associate Director of Labor Relations. By letter 9 of June 11, 2007, the Associate Director advised Dyks tra that he had been found responsible for 10 falsifying cGMP documents and therefore his employment was terminated effective June 11, 2007. 11 On June 6, 2008, Dykstra filed a complaint inthe Supreme Court of the State of New York, 12 Rockland County, alleging that he was terminated in retaliation for reporting safety violations to a 13 supervisor. 1 This termination, he claimed, violated the New York “whistle-blower statute,” N.Y. 14 Labor Law § 740, which prohibits anemployer from taking “any r etaliatory personnel action against 15 an employee” because the emplo yee discloses to a supervisor or public body an activity, policy or 16 practice of the employer that viola tes a “law, rule or regulation whichviolation creates and presents 17 a substantial and specific danger to the public healthor safety, or which constitutes health care 18
fraud.” N.Y. Lab. Law § 740(2)(a). Dykstra alleged that he was discharged in retaliation for 19 reporting to a supervisor in March 2007 that he had observed two maintenance workers in a “clean 202 Wyeth has argued that, because the viol ation that Dykstra allegedly reported was of company policies, and not a “law, rule or regulation,” he cannot st ate a claim under § 740. Because we agree with the District Court th at the statute of limitations bars Dykstra’s action, we need not reach that issue.
4 room” failing to comply with steriliz ation procedures and lacking pr oper certification, in violation 1 of Wyeth policies. 2 2 Section 740 permits an employee who believes he ha s been retaliated against in violation of 3
the statute to “institute a civil acti on . . . within one year after the alleged retaliatory personnel action 4
was taken.” Id. The dispositive question before the District Court, therefore, was whether 5 Dykstra’s cause of action accrued on April 17, 2007, when he was notified of his suspension 6 pending discharge, or June 11, 2007, the effectiv e date of his termination. The District Court 7 concluded that his cause of action accrued on April 17, 2007, and that his complaint, filed June 6, 8 2008, was thus barred by the one-year statute of limita tions. It accordingly granted Wyeth’s motion 9 for summary judgment. 10
“We review de novo the district court’s grant of summary judgment, drawing all factual 11 inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc. , 532 F.3d 101, 12 107 (2d Cir. 2008). “Summary judgment is prope r only when, construing th e evidence in the light 13 most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the 14 movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 15 2011) (quoting Fed. R. Civ. P. 56(a)). Having conducted a de novo review of the record and 16 considered the parties’ submissions , we agree with the District Court that Dykstra’s claim is barred 17 by the statute of limitations. See Dykstra v. Wyeth Pharmaceuticals, Inc. , No. 08-CV-07432 (S.D.N.Y. 18 Sept. 16, 2010). 195 In arriving at its conclusion that Dykstr a’s cause of action accrued on April 17, 2007, when 1 he was notified of his “suspension pending disc harge,” the District Court relied on case law 2 interpreting statutes of limitation governing compar able federal employment discrimination laws. 3 Though Dykstra, too, relied on these federal case s below, he now argues that we should look 4 exclusively to New York state law. 5 On appeal, Dykstra has cited one New York case, Dobson v. Loos, 716 N.Y.S.2d 220 (4th 6 Dep’t 2000), which, he contends, provides an interpr etation of § 740’s statute of limitations that 7 supports his position. The Appellate Division held in Dobson that where a Sheriff’s Department 8 took “active and extraordinary measures to preclude [the plaintiff’s] appointment as Lieutenant 9 during the life of [a] preferred eligibility list until its expiration”—including repeatedly promoting 10 others ahead of the plaintiff—this constituted a c ontinuing violation such that the plaintiff could 11 bring a cause of action within one year of the expiration of the eligibility list. Id. at 221. 12 The ongoing and repeated failure to promote the plaintiff in Dobson is entirely different from 13 Dykstra’s termination. As noted above, the CBA governing Dykstra’s employment with Wyeth 14 effectively prohibits Wyeth from terminating an employee without first suspending him pending a 15 grievance proceeding: “An employee whose acti on appears to necessitate his/her discharge shall first 16 be suspended subject to discharge and so be info rmed.” Furthermore, if the employee does not 17 request a grievance proceeding within seven days of this notification, “the action taken by the 18 Company shall become final.” (Emphases added.) In other words, no sepa rate personnel action is 19 required to terminate the employee once notice of susp ension pending discharge is provided. The 20 actual termination, therefore, flows as an inev itable consequence from the notice of suspension, and 21 only the potential intervening act of the grievance hearing officer can separate the two. Under these 223 Under New York law, it is possible that § 740’s statute of limitations would be tolled for the duration of Dykstra’s grievan ce 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 wh en the grievance procedure is mandatory, it will typically not be tolled where a voluntary grievance procedur e 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 ar gument 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 circumstances, Dykstra’s notice of suspension and hi s ultimate discharge are properly viewed as one 1 personnel action, which occurred on April 17, 2007. 2 Indeed, the New York Court of Appeals expressly adopted this reasoning in Queensborough 3 Community College v. State Human Rights Appeal Board , 41 N.Y.2d 926 (1977). The court in that case 4 considered an employment discrimination statu te which, similarly to N .Y. Labor Law § 740(4)(a), 5 provided that “[a]ny complaint filed pursuant to this section must be so filed within one year after 6 the alleged unlawful discriminatory practice.” Id. at 926 (quoting N.Y. Exec. Law § 297(5)). The 7 Queensborough court held that the statute of limitations for the employment-discrimination claim 8 began running as soon as the plaintiff was info rmed that she would not be reappointed—not, as 9 that plaintiff had argued, on the date that he r term of employment actually ended—because “[t]he 10 act of giving complainant notice that she would not be reappointed gave rise immediately to a cause 11
of action.” Id. (internal quotation marks omitted). “Nor is the limitation tolled by the invocation 12 of grievance procedure which is merely an alterna tive remedy,” the New York Court of Appeals 13
added. 3 Id. Accordingly, under New York law, the st atute of limitations for Dykstra’s claim began 14plaintiff’s “equitable tolling point did not suffice to alert the district cour t to the time-of-accrual claim”).
7 running on April 17, 2007, when he was notified of the adverse employment action. Dykstra 1 commenced this lawsuit more than one year later; the District Court was therefore correct to grant 2 the motion for summary judgment on statute-of-limitations grounds. 3 We reject all of Dykstra’s arguments on appeal. Accordingly, the judgment of the District 4
Court is AFFIRMED

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