United States District Court, Southern District of New York
March 2, 1990
ELAINE NURSE, PLAINTIFF,
THE CITY OF NEW YORK AND NEW YORK CITY COMPUTER SERVICE CENTER, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Defendants, The City of New York and New York City Computer
Service Center (the "Center"), (collectively, "The City"), move
pursuant to Federal Rule of Civil Procedure 12(c) to dismiss
the claims in the amended complaint brought by plaintiff Elaine
Nurse ("Nurse") under the Age Discrimination in Employment Act
("ADEA") and 42 U.S.C. § 1981 and 1983 and in limine to
exclude the testimony of Marjorie Mayers at the trial of this
Nurse is a black female citizen of the United States and a
resident of New York City. At the relevant times in the
complaint, Nurse was employed by the Center.
Defendant City of New York is a municipal corporation
organized pursuant to the laws of the State of New York. The
City is an employer as defined by the New York State Human
Rights Law (Article 15 of the Executive Law).
Defendant NYCSC is an employer as defined by the New York
State Human Rights Law (Article 15 of the Executive Law).
In October 1980, plaintiff, Elaine Nurse ("Nurse") filed a
complaint with the New York State Division of Human Rights
(NYSDHR) and with the Equal Employment Opportunity Commission
(EEOC). The complaint alleged that the City discriminated
against Nurse on account of race, sex and age. Nurse alleged,
inter alia, that defendants had failed to provide her with
certain training and that she had been bypassed for the
position of Manager of Production Control at the Center. The
NYSDHR held an evidentiary hearing, and in June 1985 determined
that the City had not discriminated against Nurse.
In August 1985, Nurse and three other Center employees,
Charles Miller, Lewis Martin and Toronica Pryor, commenced the
instant action. At that time, all four plaintiffs were
represented by the NAACP. The NAACP subsequently withdrew as
their counsel, and Martin and Pryor withdrew their complaints.
Miller elected to proceed pro se,*fn1 and Nurse retained
another attorney. On August 26, 1988 Nurse moved for an order
granting her leave to amend the complaint to add a cause of
action pursuant to the Age Discrimination in Employment Act
("ADEA") and to sever the Nurse and Miller claims. The
unopposed motion was granted on September 19, 1988.
§§ 1981 and 1983 Claims Barred
Nurse's claims brought pursuant to 42 U.S.C. § 1981 and 1983
are barred by collateral estoppel. In University of Tennessee
v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635
(1986), the Supreme Court held that "when a state agency
`acting in a judicial capacity . . . resolves disputed issues
of fact properly before it which the parties have had an
adequate opportunity to litigate,' federal courts [in actions
under the Reconstruction civil rights statutes] must give the
agency's fact-finding the same preclusive effect to which it
would be entitled in the state's courts." 478 U.S. at 799, 106
S.Ct. at 3226 (footnote omitted); DeCintio v. Westchester
County Medical Center, 821 F.2d 111,
116 (2d Cir. 1987), cert. denied, 484 U.S. 965, 108 S.Ct. 455,
98 L.Ed.2d 395 (1987).
Nurse had a full and fair opportunity to litigate her claims
of sex, race, and age discrimination at her NYSDHR hearing. She
was represented by counsel, called witnesses and was afforded
the opportunity to cross-examine them. Accordingly, the June
1985 determination of the NYSDHR that the city had not
discriminated against Nurse is entitled to preclusive effect,
and bars Nurse from maintaining her claims under §§ 1981 and
1983. Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d
271, 276, 532 N.Y.S.2d 230, 528 N.E.2d 153 (1988), cert.
denied, ___ U.S. ___, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989);
Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-02, 478 N.Y.S.2d
823, 467 N.E.2d 487 (1984); Nurse agrees that this reading of
University of Tennessee prevents her from further litigating
the §§ 1981 and 1983 claims.
The claims are also barred by the statute of limitations.
Three years is the statute of limitations period applicable to
§§ 1981 and 1983 claims. Okure v. Owens, 816 F.2d 45, 47 (2d
Cir. 1987), aff'd, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594
(1989); Ingram v. Madison Square Garden Center, Inc.,
709 F.2d 807, 811 (2d Cir. 1983), cert. denied, 464 U.S. 937, 104 S.Ct.
346, 78 L.Ed.2d 313 (1983). The question of when a § 1983 claim
accrues is a matter of federal law. Fiesel v. Board of Educ.,
675 F.2d 522, 524 (2d Cir. 1982); Pauk v. Board of Trustees,
654 F.2d 856, 859 (2d Cir. 1981), cert. denied, 455 U.S. 1000,
102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). Under federal law, a
claim accrues at "that point in time when the plaintiff knows
or has reason to know of the injury which is the basis of [her]
action." Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir.
1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54
(1979); Pauk, 654 F.2d at 859.
The latest date for the accrual of Nurse's §§ 1981 and 1983
claims is the appointment of Conforti in September 1980. Nurse,
however, did not file her complaint until August 1985, almost
five years later. Consequently, Nurse's §§ 1981 and 1983 claims
are barred by the three-year limitations period.
ADEA Claims Barred
Under the ADEA, an action must be commenced within two years
after plaintiff's cause of action accrues, or if the act
complained of constitutes a "willful violation" of the ADEA
then a three-year statute of limitations applies.
29 U.S.C. § 626(e)(1) and 255(a). The standard of willfulness is whether
the employer "either knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the statute . .
." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108
S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988); Benjamin v. United
Merchants & Mfrs., Inc., 873 F.2d 41, 43-44 (2d Cir. 1989).
Nurse's complaint does not allege that the city willfully
violated the ADEA. Nurse merely alleges that the city
discriminated against her on the basis of her age. Thus the
two-year statute of limitations applies in this action. Had
Nurse alleged willful discrimination, the claim would still be
time-barred under a three-year statute of limitations. Nurse's
cause of action accrued no later than September 1980 with the
appointment of Antonio Conforti as the Center's Manager of
Production Control. Nurse did not file her federal complaint,
however, until August 1985, and did not amend her complaint to
add an ADEA claim until November 1988. Even assuming that the
amendment adding the ADEA claim related back to the 1985
filing, the 1985 filing was far beyond both the two and three
year statute of limitations. Accordingly, Nurse's ADEA claim is
Nurse has put forth no reason to consider an equitable
tolling of the statute of limitations. Instead, Nurse merely
asserts that the city was aware at all times of the age
discrimination claim which had been set forth in both the
complaint filed with the NYSDHR and with the EEOC and in the
original complaint filed with this court.*fn2
Nevertheless, Nurse's pursuit of her age discrimination claim
in the NYSDHR did not operate to extend the limitations period.
Like Title VII, the ADEA requires initial deferral to the
appropriate state agency. 29 U.S.C. § 633; Oscar Mayer & Co. v.
Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071-72, 60 L.Ed.2d
609 (1979). The ADEA, however, does not mandate pursuit of a
remedy through administrative channels before a civil action
may be filed. Kennedy v. Whitehurst, 690 F.2d 951, 964 (D.C.
Cir. 1982) ("Exhaustion" under the ADEA "requires no more than
the provision of notice to the appropriate federal official of
the intention to sue"). Sixty days after filing with the state
agency and the EEOC, a person is free to file a civil suit. Id.
Therefore, during the period that Nurse pursued her
administrative remedies in the NYSDHR, the statute of
limitations was running and expired in 1983, more than two
years before Nurse commenced this action.
Nurse's only remaining claims are brought under Title VII.
Nonetheless, as of this date, Nurse has yet to produce the
EEOC's right-to-sue letter issued upon the closing of the case
to demonstrate that Nurse has timely commenced this action.
Consequently, Nurse has no remaining claims, the demand for a
jury trial and the motion in limine are not addressed, and
absent production of the right-to-sue letter within twenty days
of this decision the complaint will be dismissed.
Settle judgment on notice.
It is so ordered.