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