The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge
In September of 1983, plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq., against her employer, Fashion Institute of Technology ("FIT"), and her union, United College Employees ("UCE"). By Memorandum Endorsement dated March 8, 1984, Judge Kevin Thomas Duffy granted plaintiff leave to amend her complaint to add a cause of action under 42 U.S.C. § 1983 against both defendants and a cause of action under title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et. seq., against defendant FIT.
The amended complaint alleges that defendants denied plaintiff seniority rights accumulated while absent from work on maternity leave.
Defendants have moved to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(6). Defendants contend that the cause of action under Title VII is time barred because plaintiff failed to file a timely charge with the Equal Employment Opportunity Commission ("EEOC"). Defendants also contend that the cause of action under 42 U.S.C. § 1983 is barred by New York's three year statute of limitations. Finally, defendant FIT contends that the court lacks jurisdiction over it under Title IX of the Education Amendments of 1972.
The complaint sets forth the following facts which, for purposes of the motion to dismiss, are deemed true.
Plaintiff has been employed by FIT as a teacher since 1956 and received tenure in 1962. She spent 1963 through 1965 on maternity leave and returned to teaching on a part-time basis in 1965. Defendant's actions with regard to this two year maternity leave are the subject of this action.
Plaintiff was assigned as an Adjunct Assistant Professor, effective September, 1967. In February of 1968, upon completion of the Fall semester, plaintiff was "dropped" by the Fashion Design Department ("the department") at FIT, purportedly because there were no openings. Plaintiff alleges that at this time, part-time untenured teachers were retained in the department. Plaintiff's discharge on February 1, 1968 is the first discriminatory act alleged in the amended complaint.
Plaintiff was reinstated in the department with continuous seniority and tenure in February of 1973. During that year, however, FIT and UCE entered into a collective bargaining agreement that prohibits the accrual of seniority credit for programming purposes during maternity leaves. Plaintiff alleges that because of this collective bargaining agreement, FIT failed to pay her a proper salary consistent with a continuation of her seniority and tenure. In June of 1973, plaintiff filed a grievance with UCE. In March of 1976, the arbitrator presiding over the grievance proceedings ruled that plaintiff, by her absence, had constructively resigned and thus her subsequent reinstatement was subject to the discretion of FIT. FIT's denial to plaintiff of salary and other fringe benefits upon her reinstatement in February of 1973, constitutes the second discriminatory act alleged.
Plaintiff further alleges that although she was denied salary and other benefits by FIT, she did not lose her rank for purposes of program assignments in the department. However, on June 9, 1975, UCE filed a grievance with FIT charging that the department's program assignment for the year 1975-76 violated the collective bargaining agreement, by crediting individuals, such as plaintiff, for time spent on maternity leave. Effective February 1, 1977, a new seniority list was established based on actual teaching service instead of initial date of hire seniority. The grievance filed by UCE on June 9, 1975, constitutes the third discriminatory act alleged.
On January 9, 1977, plaintiff filed a charge of employment discrimination with the EEOC. Amended Complaint at P 7. On June 11, 1983, plaintiff received a right-to-sue letter issued by the EEOC. Id. at P 8.
Section 706(e)(5) of the Civil Rights Act of 1964, as amended, provides that the EEOC charge "shall be filed by or on behalf of the person aggrieved within 300 days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). Plaintiff's entitlement to relief under Title VII is predicated on the filing of a timely charge with the EEOC. Zipes ...