The opinion of the court was delivered by: WEINFELD
Plaintiff commenced this action asserting claims under § 704 of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 1985(3) & 1986, § 504 of the Rehabilitation Act of 1973,
§ 402 of the Vietnam Veterans Readjustment Assistance Act of 1974,
and § 296 of the New York Executive Law. Essentially he claims that the defendants, his former employers, discriminated against him in retaliation for his having filed two previous complaints against them with the New York State Division of Human Rights alleging discrimination because of his Puerto Rican origins. Plaintiff also alleges that he was discriminated against due to physical disabilities; he claims to be legally blind and as a result of job conditions to have suffered back injuries. This discrimination allegedly manifested itself in plaintiff being denied the opportunity for two promotions, being denied sick leave with half pay, having his request for reassignment due to his injuries ignored, and being required to perform full duties when a reduced workload was called for. Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint for failure to state a claim upon which relief can be granted.
Addressing first the Title VII claim, defendants argue that the jurisdictional prerequisites have not been met.
Since on this issue both parties have submitted exhibits for the Court's consideration, this portion of the motion is treated as a motion for summary judgment.
The exhibits demonstrate that a charge was filed with the EEOC on July 12, 1974 and that a right to sue notice was issued on December 19, 1979.
This action was commenced precisely ninety days later, within the period required.
Defendants, however, point out that only one of the incidents of retaliation mentioned in the complaint, an incident occurring in January 1974,
took place during the 300-day period within which a charge must be filed with the EEOC.
However, since plaintiff alleges that this act was part of a continuing pattern of discrimination beginning in June 1970,
several incidents of which are set forth in the complaint,
and since at least one act of this pattern is alleged to have occurred within the 300-day period, the entire pattern may be considered in this action.
Defendants' motion directed to plaintiff's claim of retaliation under Title VII thus is denied.
The remainder of plaintiff's claims, however, must be dismissed. Plaintiff fails to state a claim under § 402 of the Vietnam Veterans Readjustment Act because he has not alleged exhaustion of administrative remedies. This statute specifically sets forth an administrative remedy for breaches thereof, namely, that a complaint may be filed with the Veterans' Employment Service of the Department of Labor.
If a private right of action exists under the Act, therefore, an issue this Court need not address, it would arise only after this complaint has been filed. No such filing is alleged.
Defendant's claims under 42 U.S.C. §§ 1985(3) & 1986 and § 504 of the Rehabilitation Act are time-barred. Neither § 1985(3) nor § 504 has its own statute of limitations, so the most appropriate state statute of limitations should be applied.
In New York, the appropriate statute of limitations is the three-year period applied to actions created by statute under New York Civil Practice Law & Rule § 214(2).
Section 1986 has its own one-year statute of limitations. It is not disputed that plaintiff was terminated from his employment with defendants on October 29, 1976, more than three years before the filing of the complaint in this action on March 18, 1980. No new act of discrimination thus could have occurred within the limitations period for these claims, nor does the mere failure to rehire plaintiff toll the limitations period.
The claims thus are barred.
Finally, plaintiff's claim under § 296 of the New York Executive Law must be dismissed as premature. Plaintiff alleges that he filed charges of discrimination and retaliation before the New York State Division of Human Rights and that an investigation of these charges is still pending.
Subsection 9 of § 297 of the Executive Law contains an election of remedies provision that any person aggrieved by an unlawful discriminatory practice shall seek his remedy either in the appropriate court or before the State Division of Human Rights. Having elected to proceed before the Division, plaintiff is now precluded from pressing his claims under § 296 before this Court.
Plaintiff's Title VII claim of retaliation thus is upheld; the remainder of his claims are dismissed.