EEOC destroyed its files on this action on August 11, 1988, as
part of a routine housecleaning of apparently dormant cases.
Declaration of Kathleen Raynsford, at 2.
Defendant is undoubtedly correct that the passage of time will
have made this action far more difficult to litigate. However,
that is not a sufficient justification for dismissing the action
when defendant shares responsibility for the delay.
Accordingly, defendant's motion to dismiss the complaint under
Fed.R.Civ.P. 4(j) is denied.
B. The 90-Day Filing Requirement
Defendant next argues that plaintiff's Title VII claims are
barred because she failed to institute this action within 90 days
of receiving a Notice of Right to Sue issued by the EEOC. See
Baldwin v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196
(1984); Lo v. Pan American World Airways, 787 F.2d 827 (2d Cir.
There is some confusion as to the date the EEOC issued
plaintiff a right to sue letter. Plaintiff alleges in her
complaint that she received the letter on July 30, 1984, but this
is clearly a mistake, as plaintiff lists the same date for the
date she first filed her charge with the EEOC. Complaint at 2, ¶¶
7-8. Defendant submits a letter from the EEOC indicating that the
Right to Sue letter was issued on September 24, 1985. Raynsford
Declaration, Ex. A. However, the copy of the Notice of Right to
Sue attached to plaintiff's complaint contains a date stamp of
October 9 next to the signature of the issuing official.*fn6
Had the letter been promptly delivered to plaintiff on October
9, 1985, her suit would not be timely as 105 more days elapsed
before she submitted her complaint to the Pro Se Office of the
court. However, a certified mail claim check attached to an EEOC
envelope which plaintiff submitted with her complaint —
presumably the envelope in which the Right to Sue letter was
enclosed — reflects the date October 24, 1985 as the date of
first notice to plaintiff that a certified letter had arrived at
the post office. This suggests that plaintiff received the
Right to Sue Notice at the earliest on October 24, and quite
possibly a few days later. If October 24 was the date of receipt,
plaintiff filed her action with the Pro Se Office on the 90th day
after receipt.*fn7 This makes the action timely as the 90-day
period runs from plaintiff's receipt of the notice, not from the
date of issuance. 42 U.S.C. § 2000e-5(f)(1).
Accordingly, defendant's motion to dismiss plaintiff's Title
VII claims is denied.
C. The § 1981 Claim
Defendant argues, finally, that plaintiff's Section 1981 claim
is barred by the Supreme Court's decision in Patterson v. McLean
Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132
(1989), because the complaint alleges only on-the-job
discrimination, not discrimination in the formation of the
In Patterson, the Court held that "racial harassment relating
to the conditions of employment is not actionable under § 1981
because that provision does not apply to conduct which occurs
after the formation of a contract and which does not interfere
with the right to enforce established contract obligations."
Id. 109 S.Ct. at 2369. The Court stressed that discriminatory
"conduct by the employer after the contract relation has been
established, including breach of the terms of the contract or
imposition of discriminatory working conditions," is actionable
under Title VII, and to allow dual claims under both statutes
would "undermine the detailed and well-crafted procedures for
conciliation and resolution
of Title VII claims." Id. 109 S.Ct. at 2374.
Plaintiff alleges that she was wrongfully denied the
opportunity to work on certain holidays in 1984, an allegation
clearly going to events occurring after the formation of the
employment relationship. She makes no allegation of
discrimination relating to the formation of her employment
contract, nor any allegation that defendant in some way
interfered with her "ability to enforce through legal process
[her] established contract rights." 109 S.Ct. at 2373.
Accordingly, she has not stated a cognizable claim under
42 U.S.C. § 1981, as that provision was interpreted in Patterson.
Defendant's motion to dismiss plaintiff's claim under
42 U.S.C. § 1981 is granted. Defendant's motion to dismiss plaintiff's
Title VII claims, or to dismiss the entire action under
Fed.R.Civ.P. 4(j), is denied.