The opinion of the court was delivered by: Telesca, Chief Judge.
The defendants now move to dismiss plaintiff's complaint, on
the grounds that both Ms. Raggi's Rehabilitation Act claim and
her State Human Rights claim are barred by the applicable
statutes of limitations. Additionally, defendants argue that
the State Human Rights claim is barred because plaintiff
elected to pursue an administrative remedy instead of a
judicial remedy. For the reasons discussed below, defendants'
motion to dismiss the complaint is granted.
Plaintiff was employed by Wegmans for approximately fifteen
years as an Accounting Office Manager, until she was
terminated on June 11, 1986. At the time she was fired, she
was thirty-four years old. From approximately 1982 until 1986,
plaintiff underwent various surgical procedures, including two
operations to remove sections of her stomach. Plaintiff
alleges that despite her health problems, she remained able to
perform her job responsibilities, that she is handicapped
within the meaning of the Rehabilitation Act, and that the
defendants were aware of her handicap.
She further alleges that prior to her termination, several
of defendant's employees made remarks that demonstrate their
discriminatory intent. For example, she alleges that defendant
James Kellman, the manager of the store in which she worked,
remarked that Wegmans was footing the bill for the plaintiff's
surgery, that she was a detriment to the company, and that
Wegmans could reduce its payroll by firing plaintiff and
hiring someone half her age.
Shortly after she was terminated, plaintiff filed a
complaint with the State Division of Human Rights, charging
the defendants with discriminatory employment practices. The
Division made a finding of probable cause and commenced
hearings on the charges, which continued until August 17,
1989. The Administrative Law Judge issued his recommended
findings and decision on April 10, 1991. He dismissed
plaintiff's complaint on the grounds that the defendants did
not discriminate against plaintiff on the basis of either her
age or disability. Plaintiff filed objections, and on May 29,
1991, the Commissioner issued a Notice of Order after Hearing,
dismissing plaintiff's complaint. Plaintiff filed this action
on July 26, 1991.
A. The Plaintiff's Rehabilitation Act Claim:
1. The Most Appropriate Statute of Limitations:
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
[n]o otherwise qualified handicapped individual
in the United States . . . shall, solely by
reason of his handicap, be excluded from the
participation in, be denied the benefits of, or
be subjected to discrimination under any program
or activity receiving Federal financial
assistance. . . .
29 U.S.C. § 794. The Rehabilitation Act does not, however,
provide its own statute of limitations for actions brought
pursuant to § 504. Under such circumstances, the court must
"borrow" the most appropriate state statute of limitations.
Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 1942, 85
L.Ed.2d 254 (1985); Marin v. New York State Department of
Labor, 512 F. Supp. 353, 355 (S.D.N.Y. 1981); Andrews v.
Consolidated Rail Corp., 831 F.2d 678, 683 (7th Cir. 1987).
Both parties agree that the court must look to New York State
law to determine the ...