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TOLIVER v. SULLIVAN DIAGNOSTIC TREATMENT CENTER

October 16, 1990

TOMMIE L. TOLIVER, PLAINTIFF,
v.
SULLIVAN DIAGNOSTIC TREATMENT CENTER, DENNIS RAYMOND AND "SKY" YORDER, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Tommie L. Toliver ("Toliver"), a pro se litigant, brings this action for employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the N.Y. Executive Law §§ 292-301 ("Human Rights Law"), alleging that he was fired from his job with the Sullivan Diagnostic Treatment Center ("SDTC") due to his race and color. Defendants now move pursuant to Fed.R. Civ.P. 12(b)(1), 12(b)(2) and 12(b)(6) to dismiss the action for lack of subject matter jurisdiction, lack of personal jurisdiction over defendants Raymond and Yorder and for failure to state a claim upon which relief can be granted. For the reasons set forth below, defendants' motion is granted in part and denied in part.

BACKGROUND*fn1

Toliver, a black male, was employed beginning in approximately July 1986 as a night residential counselor by SDTC, an agency which provides treatment for the developmentally disabled. In early 1987, Toliver applied for promotion to the position of program supervisor but his application was denied. SDTC instead hired a white male who it claims, unlike plaintiff, had prior supervisory and administrative experience.

In April 1987, SDTC gave Toliver permission to leave work early two days per week for a two-week period to attend another job. Plaintiff allegedly continued to leave early and call in sick after the two-week period ended and refused to provide SDTC with doctor's notes justifying the absences. Plaintiff was terminated on or about June 15, 1987 for violation of sick leave rules and for insubordination. Complaint ¶ 9.*fn2

Plaintiff again applied for an advertised position as a program supervisor between July and September of 1987 but was refused an interview. SDTC felt Toliver was not a suitable candidate for the position based on his earlier discharge for misconduct.

Toliver filed separate complaints against SDTC with the New York State Division of Human Rights ("NYSDHR") on November 30, 1987, and March 18, 1988. On August 30, 1988, NYSDHR found no probable cause on either complaint to believe that SDTC engaged in discriminatory employment practices.

Toliver also filed charges against SDTC with the Equal Employment Opportunity Commission ("EEOC") sometime between November 1987 and March 1988 alleging racial discrimination. Pursuant to EEOC's determination to dismiss his charges, a Notice of Right to Sue dated August 12, 1989 was sent to Toliver who claims he received it on August 15, 1989.

Toliver sent his complaint in this action along with his request to proceed in forma pauperis to the Pro Se Clerk for the Southern District of New York by certified mail on November 8, 1989. Toliver Aff. ¶ 7. A postal receipt shows that the pro se office signed for the item on November 13, 1989. Toliver Aff., Exh. F. Both documents were stamped as received on November 16, 1989. The summons and civil cover sheet in this action were dated December 6, 1989.

DISCUSSION

1. Subject Matter Jurisdiction

2. Defendants Raymond and Yorder

The individual defendants, both supervisors at SDTC, offer several reasons as to why they are not properly named as defendants to plaintiff's Title VII claim. Raymond and Yorder first contend that this Court lacks personal jurisdiction over them because they allegedly were not served in this action within the 120-day limit imposed by Fed.R.Civ.P. 4(j). This action was filed with the clerk of ...


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