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CASSELLS v. UNIVERSITY HOSP. AT STONY

June 18, 1990

CASSERENE CASSELLS, PLAINTIFF,
v.
UNIVERSITY HOSPITAL AT STONY BROOK; STATE UNIVERSITY OF NEW YORK AT STONY BROOK; JOHN MARBURGER (PRESIDENT OF THE STATE UNIVERSITY OF NEW YORK AT STONY BROOK); HOWARD OAKS (VICE PRESIDENT, STATE UNIVERSITY OF NEW YORK AT STONY BROOK); WILLIAM NEWELL, (VICE PRESIDENT FOR HOSPITAL AFFAIRS); PURA LABORDE DE PANTOJAS, (DEPUTY DIRECTOR OF NURSES); AND JANET SCHROEDER ENTINE (ASSOCIATE DIRECTOR OF NURSES), DEFENDANT.



The opinion of the court was delivered by: Nickerson, District Judge:

MEMORANDUM AND ORDER

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 replead.

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 Mishler's adjudication.

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 ...


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