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SAVAGE v. KIBBEE

November 12, 1976

Alicia Pareha Savage, Plaintiff
v.
Robert J. Kibbee et al., Defendants


Werker, D.J.


The opinion of the court was delivered by: WERKER

WERKER, D.J.:

In this employment discrimination action, the defendants have made a motion for summary judgment pursuant to Rule 56, Fed. R. Civ. P., on the following grounds: (1) that the claims interposed under 42 U.S.C. §§ 1981, 1983 were not filed within the applicable period of limitation; (2) that the claims under 42 U.S.C. § 2000e-5 are barred for failure to make a timely complaint to the Equal Employment Opportunity Commission; (3) that because the defendants are not persons within the meaning of 42 U.S.C. § 1983, the court lacks jurisdiction under 28 U.S.C. § 1343 as to claims for damages; (4) that insofar as the defendants are sued in their individual capacities no discriminatory acts personally committed by the defendants have been alleged; (5) that plaintiff's claim for wages is not within the pendent jurisdiction of this court; (6) that plaintiff failed to bring her claim for wages under the grievance and arbitration procedure of the applicable collective bargaining agreement, which was the only remedy available to her; and (7) that the complaint fails to state a claim upon which relief can be granted. The plaintiff has cross-moved for summary judgment on her pendent claim for accrued annual leave, an award of attorneys fees and expenses pursuant to Rule 56(g), Fed. R.Civ. P., and leave to renew her request for a preliminary injunction.

 Background

 Plaintiff is a forty-six year old woman of Spanish, Malay and Oriental ancestry who was formerly employed by Hunter College of the City University of New York. She began her work at Hunter College in 1965 as a college office assistant charged with the preparation of information bulletins and class schedules for the School of General Studies and through a series of civil service examinations and advancements in her level of educational attainment was able to rise in civil service rank. In 1970, plaintiff tendered her resignation because she believed that her title and salary did not correspond to her work responsibilities. Specifically, plaintiff felt that she had been performing tasks generally assigned to an assistant dean.

 James Williams, then the Dean of the School of General Studies persuaded the plaintiff to rescind her resignation. In return, she was appointed to the faculty of Hunter College on July 6, 1970 as a full-time Lecturer assigned to the Office of the Dean. During the five years that plaintiff was a Lecturer, she taught only one course during one semester; she also served the School of General Studies as Director of Adult Education.

 The collective bargaining agreement for instructional staff at the City University of New York ("Agreement") provides that full-time lecturers "shall be eligible for a certificate of continuous employment upon a sixth full-time appointment in the title of Lecturer (full-time) preceded by five years of continuous full-time service." *fn1" If granted, the certificate entitles a lecturer to continued reappointment at that college subject, inter alia, to satisfactory performance of tasks, stability of enrollments and financial ability. *fn2" Appointment of the plaintiff as a full-time lecturer for the 1975-76 academic year would therefore have entitled her to continuing reappointment at Hunter College. However, on June 12, 1974, Provost Douglas Maynard of Hunter College wrote to Richard Huber, then the Dean of the School of General Studies, as follows:

 
". . . Mrs. Savage is about to enter her fifth year as lecturer. It seems clear that the title of lecturer is not the proper title for the position she holds and the duties she performs. The title of lecturer is designed for people whose primary duties are classroom teaching. You are asked, therefore, to inform Mrs. Savage that she cannot be reappointed for the year 1975-1976 in the title of lecturer."

 His memorandum indicated that the plaintiff might be appointed as an "Assistant to HEO," a supervisory administrative position that would not have entitled her to either tenure or a certificate of continuous appointment.

 After conferences with Dean Huber, the plaintiff concluded that Provost Maynard would not permit her reappointment for a sixth year as full-time lecturer. On June 26, 1974, she therefore filed with the New York State Division of Human Rights ("Division") a complaint which charged Hunter College and Provost Maynard with inequality in the terms, conditions and privileges of her employment because of her age, race, color, national origin and sex. That complaint is still pending before the Division. *fn3" The plaintiff filed a similar charge with the Equal Employment Opportunity Commission ("EEOC") on August 28, 1975 and a "right to sue letter" was issued to the plaintiff on March 30, 1976. *fn4"

 The instant action was filed on September 4, 1976. It names the following persons as defendants: Robert J. Kibbee, Chancellor of the City University of New York; Jacqueline Wexler, President of Hunter College of the City University of New York; Douglas Maynard, former Provost and Vice-President of Hunter College; and Jerome Schneewind, present Provost and Vice-President of Hunter College. The defendants are sued both individually and in their official capacities. The complaint was drafted with the assistance of counsel, but plaintiff is presently proceeding pro se.

 Timeliness of Claims Under 42 U.S.C. § 1981 and 42 U.S.C. § 1983

 The defendants contend that the plaintiff failed to bring her civil rights causes of action under 42 U.S.C. § 1981 and 42 U.S.C. § 1983 within the time allowed by the state statute of limitations that should govern such suits. I disagree. There is no Federal statute limiting the time to bring an action under either section. Thus, the time period to be employed must be determined by reference to the most appropriate provision of New York State law. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); O'Sullivan v. Felix, 233 U.S. 318, 322, 58 L. Ed. 980, 34 S. Ct. 596 (1914). Since Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963), several decisions have held that under section 214(2) of the New York Civil Practice Law and Rules (CPLR) the three year period governing actions to recover "upon a liability, penalty or forfeiture created or imposed by statute . . ." is the most appropriate time period to employ. See e.g., Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974). In fact, the question was termed "settled" in Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970), an action brought under 42 U.S.C. § 1983.

 Counsel for the defendants suggests, however, that there exists a more appropriate statute of limitations which has yet to be considered by the courts of this circuit, namely section 297(5) of the New York Executive Law. Frankly, I am not surprised that prior lawsuits have not considered the applicability of that statute. Section 297, which is part of the New York Human Rights Law, specifies the procedures to be followed in filing and prosecuting a complaint before the Division, an administrative agency of the state empowered to investigate and determine the merit of alleged "unlawful discriminatory practices." Subsection 5 of section 297 provides that complaints submitted for consideration by the Division must be "filed within one year after the alleged unlawful discriminatory practice." While 42 U.S.C. §§ 1981 and 1983 and the New York Human Rights Law share generally similar purposes, *fn5" use of the section 297(5) time period to limit a federal civil rights suit would be singularly inappropriate. The instant action has not been brought before an administrative agency. Moreover, as the defendant concedes there already is a federal counterpart to section 297(5) in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e). Thus, for those actions where federal courts might have looked to section 297(5) of the Human Rights Law, Congress has expressed its intent that a different period of limitations be controlling.

 Section 214(2) of the CPLR expressly includes actions upon a statutory liability and it is that section which shall govern the right of the plaintiff herein to bring causes of action under 42 U.S.C. §§ 1981, 1983. Given this holding, I need not express any view as to the applicability of section 217 of the CPLR which establishes time limitations ...


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