17-279-cv

Smith v. Met. Museum of Art

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 20 day of September, two thousand seventeen. th

PRESENT: DENNIS JACOBS,

JOSÉ A. CABRANES,

RICHARD C. WESLEY,

Circuit Judges.

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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.

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FOR APPELLANT: RUDY A. DERMESROPIAN, Law Office

of Rudy A. Dermesropian, LLC,

New York, NY. 

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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. The United States 1

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.

 Smith’s operative complaint also asserted a claim for 1

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. 

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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

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counsel of his intent to revoke the Release. But the 2

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

 Smith’s complaint actually alleged that he informed 2

“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. 

 Smith’s reply brief argues that the Release does not 3

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.

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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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