The opinion of the court was delivered by: Nickerson, District Judge:
In this action plaintiff Casserene Cassells alleges her
former employer, University Hospital at Stony Brook
(University Hospital), State University of New York at Stony
Brook, and certain individuals at those two institutions
discriminated and retaliated against her because she is a
black woman of Jamaican ancestry. Defendants move for summary
judgment on all remaining claims.
University Hospital hired plaintiff, a registered nurse, in
1979 as an Associate Director of Nursing for the night shift.
In March 1983 she was given notice that her contract would not
be renewed when it expired in September 1984. However, in
response to an internal contractual grievance proceeding, her
contract was extended for another year.
In August 1983, plaintiff filed an action (CV 83-3116,
hereinafter "Cassells I") alleging racial discrimination and
claiming damages under the Thirteenth and Fourteenth
Amendments and 42 U.S.C. § 1983. By memorandum and order dated
January 26, 1984, Judge Mishler dismissed the complaint with
prejudice for failure to state a claim. The Court of Appeals
affirmed the dismissal on June 12, 1984, but modified the order
to be without prejudice to plaintiff's repleading valid claims
for declaratory and injunctive relief. Plaintiff did not
On July 14, 1984, plaintiff signed and thereafter submitted
a charge to the Equal Employment Opportunity Commission
(EEOC), which subsequently deferred the charge to the State
Division of Human Rights for investigation and determination.
The charge alleged grievances similar or identical to those in
Cassells I, namely, (1) she was compensated less than
similarly situated white employees, (2) her employer compelled
her and not white employees to dispense medications she was
not licensed to dispense, and (3) she was denied merit raises
in 1984 on account of her race and national origin.
In September 1984 plaintiff was again told her contract
would not be renewed when it expired a year later. It was not
renewed this time, and plaintiff filed a second action on
March 10, 1986 ("Cassells II"). The complaint in this action
alleged she received notice of termination as of September 26,
1985 and was discriminated against on account of her race in
violation of the Thirteenth and Fourteenth Amendments, and
asserted claims under 42 U.S.C. § 1981 and 1983, Title VI and
Title VII of the Civil Rights Act of 1964, and New York
Executive Law, Article 15, section 290 et seq. (also known as
the New York "Human Rights Law").
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.
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 ...