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LEIMAN v. FASHION INST. OF TECH.

December 13, 1977

LILLIAN R. LEIMAN, Plaintiff,
v.
FASHION INSTITUTE OF TECHNOLOGY, BOARD OF EDUCATION OF THE CITY OF NEW YORK, STATE UNIVERSITY OF NEW YORK, FREDERICK M. BLATT, TREASURER (F.I.T.), Defendants



The opinion of the court was delivered by: POLLACK

DECISION

 MILTON POLLACK, District Judge.

 This is an action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. Plaintiff, a woman of the Jewish faith born in 1923, seeks redress for alleged discrimination in employment on the basis of her sex, religion and age.

 In April, 1974 the defendant Fashion Institute of Technology (FIT) placed an advertisement in the Wall Street Journal, seeking applications for two positions. The advertisement described one position as General Supervisor Accounting, involving direction of the bursar and various loan operations, and the other as Accountant, Senior, involving responsibility for three ancillary corporations and their financial reports. Plaintiff submitted an application and was interviewed by the defendant Frederick Blatt, the officer of FIT responsible for filling the positions. She did not specify for which position she was applying, and Blatt did not indicate for which position she was being interviewed.

 On May 3, Blatt offered plaintiff what she allegedly believed to be the General Supervisor Accounting position, and she accepted. As Blatt told the plaintiff at that time, he previously had hired a man, Howard Bellizio, as well. Plaintiff was assigned duties which included accounting for the auxiliary corporations. Blatt discharged her on or shortly before October 3, 1974, and subsequently hired a man to perform duties including those which had been assigned to plaintiff. Plaintiff claims that after she was discharged, she learned for the first time that Bellizio, and not she, was hired for the position of General Supervisor Accounting. She now asserts that she was denied the supervisory position and was discharged due to discrimination.

 On November 25, 1974, plaintiff lodged a complaint with the New York State Human Rights Division, which is still pending. On March 18, 1975, she filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that she had been discriminated against on the basis of sex. In that complaint, FIT was named as respondent, and Blatt was named in the space entitled "others who discriminated against you." EEOC issued a finding that there was no probable cause to believe a violation had occurred on March 15, 1977, and informed plaintiff of her right to sue. Plaintiff commenced this action on June 6, 1977, naming as defendants Blatt, FIT, the Board of Education of the City of New York, and the State University of New York (SUNY). The claim against SUNY was dismissed voluntarily before trial.

 The complaint filed with the EEOC was not timely with respect to the hiring. Title VII provides that the complaint must be lodged with the agency within three hundred days of the incident in question or thirty days after notice that any state proceeding has terminated, whichever is earlier. 42 U.S.C. § 2000e-5(e). In the instant case, the complaint was filed at least 319 days after the hiring. Untimely filing with the EEOC is grounds for dismissal of a Title VII claim. See Gautam v. First National City Bank, 425 F. Supp. 579 (S.D.N.Y. 1976).

 The filing may not be deemed timely on the theory that the hiring was part of a continuing violation, see Savage v. Kibbee, 426 F. Supp. 760, 764 (S.D.N.Y. 1976). A refusal to hire normally is not a continuing violation. Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 518 (S.D.N.Y. 1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974) (dictum). Plaintiff has not alleged that she was discriminated against between the time of the hiring and her discharge, five months later, nor is there any indication that the two alleged incidents complained of were elements of a pattern of discrimination or a unitary discriminatory scheme. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

 The Court of Appeals for the Second Circuit, however, has adopted a tolerant attitude toward the procedural errors of Title VII plaintiffs. See Egelston v. State University, 535 F.2d 752, 754-55 (2d Cir. 1976). The Court's evaluation of the merits of this case makes it unnecessary to decide whether this tolerance would extend to the facts of the instant case.

 Similarly, it is not necessary to rely on the fact that Title VII does not afford relief for the discrimination on the basis of age which plaintiff alleges. See 42 U.S.C. § 2000e-2. Nor is it necessary to consider the effect of plaintiff's failure to make any effort whatsoever to satisfy the administrative prerequisites for a claim pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 626(d).

 Plaintiff is not entitled to relief as against the Board of Education. It is not necessary to decide whether plaintiff's failure to name the Board in the charge filed with the EEOC, normally a sufficient ground for dismissing a Title VII claim, see Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Miller v. International Paper Co., 408 F.2d 283, 291 (5th Cir. 1969), might be excused in this case, see Solin v. State University, 416 F. Supp. 536, 540 (S.D.N.Y. 1976) (alternative holding). No evidence has been introduced regarding any conduct of the Board or its members. Neither is there any basis for holding the Board to account for the alleged misconduct of Blatt and FIT.

 The testimony indicated that FIT is an autonomous institution. The Board of Education does not interfere with the conduct of its day to day affairs. At the time of the incidents giving rise to this action, personnel decisions were under the control of the individual departments.

 FIT's autonomy with respect to the Board of Education is further elucidated by chapter 63 of the New York Education Law, which governs the formation and organization of community colleges such as FIT. Pursuant to section 6302(2), the Board is the "local sponsor" of FIT. However, the Board provides less than half of FIT's budget, the balance being supplied by tuition payments and by the state. Id. § 6304. At the time these claims arose the Institute Board of Trustees comprised five persons designated by the Board of Education and four persons appointed by the Governor, as authorized by sections 6306(1) and 6306(3). *fn1" The Board of Trustees directs FIT under the general supervision of the trustees of SUNY. Id. § 6306(2). The testimony indicated that the day to day affairs of the Institute are managed by the President, who is appointed by the Board of Trustees subject to the approval of the SUNY trustees, id.

 Plaintiff does not assert that defendants applied any discriminatory standards or tests in connection with her employment. Rather, she alleges that she was subjected to individual discriminatory conduct. Plaintiff correctly refers the Court to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, ...


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