This court by memorandum and order dated December 31, 1986,
dismissed with prejudice the claims under 42 U.S.C. § 1981 and
1983, and dismissed with leave to replead the Title VI and
Title VII claims insofar as they were based on claims not
adjudicated by Judge Mishler.
Plaintiff then filed an amended complaint reasserting the
claims under Title VI, Title VII and the Human Rights Law, and
adding a demand for reinstatement. In a memorandum and order
of September 9, 1987, 1987 WL 17091, the court deferred
defendants' motions for summary judgment on these remaining
claims, granting plaintiff additional time to submit a Rule
3(g) statement and an affidavit. The court also ruled that the
New York state law claim was not time barred.
Upon plaintiff's additional submissions, this court, by
memorandum and order dated February 24, 1988, 1988 WL 20833,
granted summary judgment as to the Title VI claim and denied
summary judgment on the Title VII claim and the Human Rights
Law claim, on the basis of factual issues plaintiff raised as
to discriminatory and retaliatory conduct subsequent to Judge
Familiarity with Judge Mishler's and this court's prior
decisions is assumed.
The Title VII Claim
Defendants once more raise the argument that plaintiff's
Title VII action is barred because she commenced Cassells II
prior to the EEOC's issuance of a right-to-sue letter on
August 27, 1986. The court addressed a similar argument in its
decision of December 31, 1986, which held that since there was
no resulting prejudice to the defendants, plaintiff could cure
her premature filing by alleging the subsequent issuance of a
right-to-sue letter in the amended complaint. This she has
done. See Amended Complaint, ¶ 10.
It is undisputed that plaintiff filed the amended complaint
more than 90 days after the Department of Justice's
right-to-sue letter of September 19, 1986. The 90-day limit,
however, is not a jurisdictional predicate, but a limitations
period subject to equitable tolling. Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984).
This is not a situation analogous to that presented in
Soso Liang Lo v. Pan American World Airways, 787 F.2d 827 (2d
Cir. 1986), where a claimant seeks to evade the 90-day
requirement by repeatedly filing the same EEOC charge to
solicit a succession of right-to-sue letters. Here, plaintiff
filed Cassells II before issuance of her right-to-sue letter
began the 90-day period. Once the court has allowed the action
to proceed despite the premature filing, it would serve no
purpose to dismiss it because the 90-day period passed while
plaintiff awaited the court's permission to amend her
complaint. See Gooding v. Warner-Lambert Co., 744 F.2d 354, 358
n. 5 (3d Cir. 1984) (suit pending when letter issued was
Defendants next argue that plaintiff has failed to allege
facts sufficient to raise a genuine issue as to defendants'
racial animus. In particular, they characterize her only claim
of discriminatory conduct as one incident in which defendant
Janet Schroeder Entine, plaintiff's immediate supervisor,
called her a "nigger".
Though courts have been understandably reluctant to allow an
isolated epithet to prove intentional racial discrimination,
see Torres v. County of Oakland, 758 F.2d 147, 152 (6th Cir.
1985), the impact and relevance of racial remarks must be
determined on a case-by-case basis after consideration of the
totality of the circumstances. Robinson v. Montgomery Ward and
Co., 823 F.2d 793, 797 (4th Cir. 1987) citing Gilbert v. City
of Little Rock, 799 F.2d 1210 (8th Cir. 1986).
In this case, plaintiff said in her affidavit of October 9,
1989 at ¶ 44 that at the September 18, 1984 meeting in which
Entine told plaintiff that her contract would not be renewed,
she said "Nigger, we don't want you here." A face-to-face
epithet from a supervisor to an employee who is, in effect,
being fired, supports a far stronger inference of racial animus
than the isolated or incidental remarks delivered in the course
of routine affairs that courts
have found wanting in other cases. See, e.g. Woodbury v. New
York City Transit Authority, 832 F.2d 764, 771 (2d Cir. 1987)
(lenient punishment of an officer for racially derogatory
remark during roll call insufficient to prove pattern or
practice of intentionally discriminatory lenience towards white
officers); Clark v. Atchison Topeka & Santa Fe Railway Co.,
731 F.2d 698, 702-03 (10th Cir. 1984) (derogatory remark to a
different Indian employee and newsletter description of
plaintiff's solving a theft as "how's that for the tracking
ability of an Indian?" insufficient to show employer's
discriminatory intent); Robinson v. Montgomery Ward and Co.,
Inc., 823 F.2d 793 (4th Cir. 1987) (supervisor's addressing
plaintiff as "black beauty" and remarks to others in context of
Jesse Jackson's presidential campaign that blacks could not
succeed at anything but sports insufficient).
In any case, plaintiff has alleged more than this particular
incident. In her affidavit dated February 9, 1990, she swears
that in 1984, Entine told her she did not like Jamaicans
because they were "too pushy," told her to get rid of her
Jamaican accent, and said she had previously beaten a Jamaican
woman and would do the same to plaintiff if she did not follow
Plaintiff also relates other instances of treatment she
found abusive or discriminatory that she raised before Judge
Mishler. While these incidents cannot themselves support her
present claim, they may serve as evidence that other
discriminatory acts occurred since Cassells I. See Cassells v.
University Hospital at Stony Brook, No. 86 CV 0698 slip op. at
13 (E.D.N.Y. Dec. 31, 1986).
Mere conclusory allegations or denials will not avail a
party resisting summary judgment. See SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). However,
plaintiff's sworn statements clearly fulfil her burden of
producing some evidence that her "version of relevant events is
not fanciful." Quinn v. Syracuse Model Neighborhood Corp.,
613 F.2d 438 (2d Cir. 1980). Defendants' contradictory version of
events and plaintiff's choice not to testify to these events at
her depositions are factors that throw doubt on plaintiff's
credibility, not on whether she has produced evidence that
places in issue the truth of a material fact.
The court previously denied summary judgment on plaintiff's
claims of retaliation based on her earlier affidavit of
October 9, 1987. Defendants now argue that since plaintiff's
EEOC charge was not stamped received by University Hospital
until September 25, 1984, and plaintiff was told she would not
be reappointed on September 18, 1984, the decision not to
reappoint her could not have been in retaliation for her EEOC
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a)
prohibits employers from firing workers because any
worker "has opposed any practice made an unlawful employment
practice by this sub-chapter, or because [the worker] has made
a charge, testified, assisted, or participated in any manner
in an investigation, proceeding or hearing under this
To make a prima facie showing of retaliation, a plaintiff
must show she engaged in protected participation or opposition,
that the employer was aware of this activity, that the employer
took adverse action against the employee, and that there was a
causal relation between the adverse action and the employee's
protected activities. Sumner v. U.S. Postal Service,
899 F.2d 203, 208-09 (2d Cir. 1990).
Opposition is a term that embraces more than complaints made
in enforcement proceedings under Title VII. It may include
direct complaints to the employer, see Manoharan v. Columbia
University College of Physicians and Surgeons, 842 F.2d 590 (2d
Cir. 1988), or formal legal proceedings under statutes other
than Title VII, see, e.g., Hoggard v. Guard Publishing, 13
F.E.P. (BNA) 1179 (D.Or. 1979), so long as the practice
complained of is one unlawful under Title VII.
Plaintiff's earlier lawsuit, Cassells I, and her complaints
to her supervisors as to discriminatory treatment, may also
serve as "opposition" upon which to predicate a claim of
retaliation. That Judge Mishler
dismissed the claims in Cassells I does not preclude them as
a basis for subsequent retaliation, particularly in view of
the fact the Second Circuit granted her leave to replead her
claims approximately four months before she was told her
contract was not renewed.
Opposition need not be to conduct actually found to violate
Title VII, so long as plaintiff held a "good faith, reasonable
belief" that such conduct violated the law. Manoharan at 593.
No argument has been made that her previous complaints, their
merits aside, were unreasonable or not in good faith.
Moreover, plaintiff contends her immediate supervisors were
aware of the complaints that formed the basis of her EEOC
charge. One of the exhibits to plaintiff's deposition of
October 21, 1988 is a handwritten memorandum dated August 25,
1988 plaintiff addressed to Entine, indicating copies for
another supervisor, her attorney, and her union
representative. It reads:
You informed me that I had filed an official
complaint with the E.E.O.C. for continuing
harassment and therefore my contract will be
terminated in Sept 26th 1985. You were extremely
critical and stated regardless of what had
happened, I should not seek outside intervention.
While the contents of this memorandum are hearsay as to the
truth of the matters asserted, the existence of the memorandum
supports an inference that at some time prior to the
University Hospital's receipt of plaintiff's EEOC charge,
plaintiff had made her supervisors aware of her complaints.
At this juncture, the court finds these circumstances raise
doubt as to whether plaintiff's supervisors knew of her
complaints and retaliated against her that is sufficient to
preclude summary judgment.
The Human Rights Law Claim
Defendants contend that state sovereign immunity and the
Eleventh Amendment preclude this court from entertaining the
Human Rights Law claim and its concomitant demand for punitive
and compensatory damages. Prior decisions of this court and of
Judge Mishler have held all remaining defendants in this
action are agencies or officers of the state acting in their
Common law immunity concerns whether a state consents to
subject itself to a particular legal action, whereas
constitutional immunity under the Eleventh Amendment concerns
whether a state consents to suit in the federal forum. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
99-100, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984).
New York courts have interpreted the provisions of Exec. Law
§ 296 that prohibit "an employer" or "any employer" from acts
of discrimination and retaliation to embrace the state in its
capacity as an employer. See Ramos v. New York City Police
Department, 127 Misc.2d 872, 487 N.Y.S.2d 667, 669-671 (Sup.Ct.
1985). New York's highest court deems the state legislature to
have waived both the State's immunity to suit for monetary
damages under the Human Rights Law, and the requirement that
the State be sued for money damages only in the Court of
Claims. Koerner v. State of New York, 62 N.Y.2d 442, 450, 478
N YS.2d 584, 587, 467 N.E.2d 232, 235 (1984).
The question remains, however, whether New York has
consented to suit under the Human Rights Law in federal court.
The Supreme Court in Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 122, 104 S.Ct. 900, 919, 79 L.Ed.2d 67
(1984) held that the Eleventh Amendment bars citizens from
enforcing pendent state law claims against their state in a
federal court. Though a state may waive the protection of the
Eleventh Amendment, Clark v. Barnard, 108 U.S. 436, 447, 2
S.Ct. 878, 883, 27 L.Ed. 780 (1883), a federal court should
construe a waiver "only where stated `by the most express
language or by such overwhelming implication from the text as
[will] leave no room for any other reasonable construction.'"
Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39
L.Ed.2d 662 (1974) quoting Murray v. Wilson Distilling Co.,
213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909).
New York Executive Law, Article 15, § 297(9) provides:
Any person claiming to be aggrieved by an
unlawful discriminatory practice shall have a
cause of action in any court of appropriate
jurisdiction for damages and such other remedies
as may be appropriate. . . . No person who has
initiated any action in a court of competent
jurisdiction . . . may file a complaint with
respect to the same grievance under this
The question arises whether the legislature intended the term
"any court of appropriate jurisdiction" to act as consent to
bring action against the State in a federal court.
In McGrath v. State Human Rights Appeal Board, 90 A.D.2d 916,
456 N.Y.S.2d 874 (3d Dep't 1982), the state Appellate Division
held that a federal court was a court of competent jurisdiction
in a litigant's prior suit against the State University of New
York at Plattsburgh. The decision does not mention, however,
whether McGrath's suit in federal court was based on state law,
or upon a Title VII claim, the latter of which may be tried
against a state in federal court. See Fitzpatrick v. Bitzer,
427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). A federal
court may be "competent" to hear federal claims based on facts
that also make out grievances under the state Human Rights Law,
and yet be "inappropriate" as a forum for Human Rights Law
claims. The opinion of the Appellate Division did not focus on
the issue of whether the State had consented to the institution
of a Human Rights Law claim in a federal court.
The Supreme Court rejected language similar to "any court of
appropriate jurisdiction" as the basis of a Congressional
lifting of state immunity in Employees of the Department of
Public Health & Welfare v. Department of Public Health &
Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). In
that case, the statute at issue was the Fair Labor Standards
Act, which provided employer liability in the form of
liquidated damages in an action maintained "in any court of
competent jurisdiction". Id. at 283, 93 S.Ct. at 1617. Though
the Act had been amended to include public hospitals under the
rubric of "employers," the Court held this statutory language
did not prevent the assertion of state immunity to suit in
In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65
S.Ct. 347, 89 L.Ed. 389 (1945), the Court rejected the argument
that a state statute waiving a state agency's immunity to
taxpayer suits "in any court of competent jurisdiction"
operated as consent to suit in federal court. Id. at 465, 65
S.Ct. at 351. The great majority of courts evaluating similar
statutory language have found it inadequate as a waiver of
Eleventh Amendment immunity. See, e.g., Kennecott Copper Corp.
v. State Tax Commission, 327 U.S. 573, 577-79, 66 S.Ct. 745,
747-48, 90 L.Ed. 862 (1946); Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 241-42, 105 S.Ct. 3142, 3146-47, 87
L.Ed.2d 171 (1985) (state constitutional provision allowing
suits against state "in such courts as shall be directed by
law" no waiver); Gwinn Area Community Schools v. State of
Michigan, 741 F.2d 840, 847 (6th Cir. 1984); Kirwin v. New York
State Office of Mental Health, 665 F. Supp. 1034, 1038 (E.D.N Y
1987); see also Almendral v. New York State Office of Mental
Health, 743 F.2d 963, 969 (2d Cir. 1984) (dismissing Title VII
litigant's pendent claims under New York's constitution and
civil rights, civil service and executive laws without
discussing statutory language). But see Reagan v. Farmers' Loan
& Trust Co., 154 U.S. 362, 392, 14 S.Ct. 1047, 1052, 38 L.Ed.
1014 (1894) ("court of competent jurisdiction" in a particular
county includes federal court).
As plaintiff has suggested no basis at all for a waiver,
much less an alternate basis, the court holds the Eleventh
Amendment bars the state claim.
Defendants' motions for summary judgment on claims under
Title VII is denied. The Human Rights Law claim is dismissed.
The case will be tried to the court.
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