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May 4, 1982

Peter T. STAPLES, Plaintiff,

The opinion of the court was delivered by: ELFVIN


A Complaint filed September 12, 1980 by plaintiff Staples against defendant Avis Rent-A-Car System, Inc. ("Avis") alleges that Avis discriminated against plaintiff on the basis of race in both its promotion policies and its termination of plaintiff's employment in 1975. Plaintiff further alleges that Avis, following plaintiff's termination, neither hired nor employed black service agents in its Buffalo offices.

 Plaintiff alleges violations of the Civil Rights Act of 1870, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq.

 Issue was joined November 6, 1980. An Amended Complaint was filed March 9, 1981 and Avis has moved to dismiss pursuant to Fed.R.Civ.P. rule 12(b)(6). *fn1"

 By his Amended Complaint, plaintiff avers that he is a Black person, that he had been employed by defendant until July 1, 1975, that during his employment he was repeatedly and due to his race bypassed for promotions and raises, that he was unlawfully and due to his race terminated July 1, 1975 from such employment, that about November 17, 1975 he filed with the Equal Employment Opportunity Commission ("the EEOC") charges that defendant had discriminated against him in his employment and that about July 1, 1980 he received a "Notice of Right to Sue" from the EEOC. The Complaint was filed in this Court September 12, 1980. Among the items of relief sought by the Amended Complaint is punitive damages. While the Amended Complaint is less than specific concerning the charges filed with the EEOC, it is assumed that the alleged discrimination was on the basis of race.

 Defendant's motion asks a dismissal of the allegations of discriminatory denial of promotions and raises as time-barred under 42 U.S.C. § 1981 and Title VII, of the allegations of discriminatory discharge as time-barred by 42 U.S.C. § 1981 and for laches and of plaintiff's claim for punitive damages. (Defendant also seeks a dismissal of plaintiff's allegations that defendant failed to hire a Black person in plaintiff's position (service agent); as will be seen, I construe such allegation as not constituting a cause of action and harmlessly present in the Amended Complaint.)

 Section 1981 As Basis for Plaintiff's Action

 Taking the allegations of the Amended Complaint as true, plaintiff was employed by Avis until his termination July 1, 1975. He alleges that he was terminated because of his race and that Avis knew that he had been injured and was unable to return to work at the time of his dismissal. He further alleges that Avis only posted notices of examinations for promotions when plaintiff was not scheduled to work or was ill at home and that Caucasian employees with less experience and ability were promoted in his stead. Avis's discriminatory conduct allegedly continued when it failed to hire or employ any Black service agents to replace plaintiff.

 Avis offers several alternative grounds for dismissing the section 1981 action. First it contends that such action regarding the termination, failure to promote and failure to recruit Black employees is time-barred. With regard to the termination issue Avis also offers res judicata and laches as bases for dismissal of such action.

 While Avis alleges collateral estoppel with regard to plaintiff's section 1981 cause of action, its supporting memorandum narrows this to res judicata arising out of state administrative proceedings, parallel to those of the EEOC.

 Avis cites Mitchell v. National Broadcasting Co., 553 F.2d 265 (2d Cir. 1977), for the proposition that resort to, and adjudication of the complaint through, the state administrative agency renders the issues res judicata and bars subsequent litigation thereof in the federal courts. But, as the court noted in Mitchell, "(r)es judicata attached when plaintiff chose to pursue her claims in the state courts, and not before." Id., at 276. This concept was reiterated in Sinicropi v. Nassau Cty., 601 F.2d 60, 62 (2d Cir.), cert. denied 444 U.S. 983, 100 S. Ct. 488, 62 L. Ed. 2d 411 (1979), where, extending the Mitchell rule to Title VII actions, the court stated that "(t)he crucial factor is that the appellant chose to submit her case to the state courts for review and she cannot now relitigate the same issues in federal court." Plaintiff in this case has not submitted his case to state court review but has come directly to the federal courts for relief. Principles of res judicata do not apply.

 Concerning Avis's contention that this action is time-barred, no specific statute of limitations applies expressly to section 1981 claims. The most analogous state statute of limitations is to be the yardstick by which the timeliness of such actions is measured. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975). Plaintiff would have me hold that the most analogous state statute of limitations in this action is section 213.2 of New York's Civil Practice Law and Rules ("CPLR") ("an action upon a contractual obligation or liability express or implied") and, consequently, that plaintiff should have six years from the date of the alleged discriminatory acts to file suit.

 It is well-established in this Circuit, however, that the proper statute of limitations for section 1981 actions charging employment discrimination is found in CPLR § 214.2 ("action to recover upon a liability, penalty or forfeiture created or imposed by statute") to which a three-year statute of limitations applies. Pauk v. Board of Trustees, 654 F.2d 856 (2d Cir. 1981). While Pauk specifically concerns section 1983, its holding and ...

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