focus should be on the allegedly discriminatory working conditions as a whole. Nevertheless, Defendant's argument that Caval was not a management level employee is significant here. Although she argues that she was nonetheless led to believe that she would be exposed to radioactive materials, and that she was not properly trained for that work, Plaintiff does not argue that Caval was in a management level position.
In order for this alleged conversation to be relevant to her constructive discharge claim, it must demonstrate "deliberate" conduct on the part of Plaintiff's employer. Plaintiff cannot credibly argue that a statement by a subordinate employee such as Caval can be considered deliberate conduct by her employer. Moreover, as Defendant points out, Plaintiff never raised this issue with her supervisor in the Refueling Department. Therefore, because the alleged conversation cannot be considered deliberate conduct by the employer, it has no relevance to the constructive discharge claim.
However, this does not mean that the lack of training itself and/or the exposure to radiation would not be significant. Certainly, if plaintiff was placed in a work environment which was hazardous to her health because of a lack of proper training, a constructive discharge claim would lie. In Meyer v. Brown & Root Construction Co., 661 F.2d 369 (5th Cir. 1981), the plaintiff was a pregnant woman who was involuntarily transferred to heavy manual labor which posed substantial risks to her health. There, the court held that such action was sufficient to constitute constructive discharge.
However, Defendant presents the affidavit of Plaintiff's immediate supervisor, Joseph DelRe. The DelRe affidavit indicates that in July, 1989 Plaintiff was assigned to work as an escort in the Refueling Division.
The affidavit makes clear that as an escort Plaintiff was not exposed to any radiation, and that she received the one day training session given to escorts in the Refueling Division. Plaintiff has presented no proof that she was exposed to any radiation; nor does she present any evidence that she received less training than other escorts in the Refueling Division. As will be discussed below, these are certainly material issues, and Plaintiff has not demonstrated that there exists a genuine issue as to these facts.
The next question is whether the remainder of the "working conditions" alleged by Plaintiff are sufficient to constitute a constructive discharge claim. Based upon a review of the Second Circuit's treatment of these cases, summary judgment should be granted on the constructive discharge claim.
In Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985), a case which the Court of Appeals would later describe as making the law of constructive discharge in the Second Circuit even more unfavorable to plaintiffs, see Greenberg v. Hilton International Co., 870 F.2d 926, 936 (2d Cir. 1989), the Second Circuit affirmed the district court's decision to grant a defendant's motion for a directed verdict. In Martin a former bank employee claimed constructive discharge. Her testimony, which was accepted as true, was that: her supervisor had loudly mentioned her having been polygraphed concerning cash disappearances; complaints relative to her attitude with co-workers were unfounded; her supervisor had given her the wrong combination to the night deposit box and that someone using his card had interfered with her deposits; and that she had been required to perform additional duties while serving customers. Martin, 762 F.2d at 221. The Court of Appeals held that the district court correctly concluded that "these incidents do not legally suffice to sustain an inference that a reasonable person would have been "compelled" to resign." Id.
Besides the alleged lack of training and exposure to radiation, the conduct alleged by Plaintiff in the instant case has to do with receiving lower pay, additional work assignments, and disparate treatment concerning responsibilities. While this conduct may constitute discrimination in the work place, the cases cited by the court in Martin demonstrate that this type of conduct is insufficient to constitute a constructive discharge claim. Lower pay resulting from gender discrimination is not sufficient. Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980). Likewise, unfavorable job assignments and a discriminatory failure to promote are insufficient. Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975). Resolving all questions of fact in favor of the plaintiff, the court finds that the conditions created by Plaintiff's employer were not "so difficult or unpleasant that a reasonable person in [Plaintiff's] shoes would have felt compelled to resign." Pena, 702 F.2d at 325. Therefore, the claim for constructive discharge is dismissed. All that remains for consideration is the claim for discrimination in the work place.
Statute of Limitations:
Defendant argues that Plaintiff's claims under Title VII and the ADEA for discrimination in the work place are time barred. The first issue raised by Defendant is the timing of Plaintiff's complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission.
Under both Title VII and the ADEA, as a prerequisite to filing a civil action the plaintiff must first file a charge with the Equal Employment Opportunity Commission (EEOC). 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d). This charge must be filed within a certain time period or a future civil claim will be barred. Under Title VII, if the plaintiff first files a charge with the state agency responsible for handling such claims, the charge must be filed with the EEOC within 300 days of the allegedly unlawful practice, or within 60 days after receipt by the plaintiff of notice of termination of the state proceedings, whichever is earlier. 42 U.S.C. § 2000e-5(e). Similarly, under the ADEA the charge must be filed within 300 days, or within 30 days after the plaintiff receives notice of termination of the state proceedings. 29 U.S.C. § 626(d); Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986).
Plaintiff argues that she has 90 days from receipt of her right-to-sue letter to file her lawsuit, 42 U.S.C. § 2000e-5(f); and that she received this letter on August 5, 1991 - 5 days before filing this action. It is true that an action not filed within 90 days of the plaintiff's receipt of a right to sue letter is untimely. Having met this requirement, Plaintiff's complaint is not untimely under 42 U.S.C. § 2000e-5 (f). However, this does not change the requirement that the filing of the charge with the EEOC must itself be timely. The 90 day clock began to run when Plaintiff received the right-to-sue letter. The 300 day clock is wholly separate, and it begins to run on the date of the last unlawful act. These are two separate requirements under Title VII.
In order to enable states to combat discrimination, and to avoid unnecessary federal intervention in this effort, Title VII provides that no charge may be filed with the EEOC until 60 days have elapsed from the filing with the state agency, or termination of the state proceedings whichever is earlier. 42 U.S.C. § 2000e-5(c); E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107, 110-111, 108 S. Ct. 1666, 1669, 100 L. Ed. 2d 96 (1988). Consequently, while claimants must file with the EEOC within a certain period of time, they are constrained by the provisions of the statute as to when the charge may be filed. In order to ensure that the charge is filed with the EEOC within the 300 day period, the claimant must therefore file it with the state agency within 240 days of the allegedly unlawful practice.
If the defendant is engaged in a continuous practice of discrimination, acts in furtherance of that practice are not viewed in isolation. See Association Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981) and cases cited. Therefore, if the charge is filed with the EEOC within 300 days of the last unlawful act by the defendant, the plaintiff may recover for earlier acts of discrimination which were part of the continuous practice. Id. This time period is measured from the date which the plaintiff receives notice of the allegedly discriminatory act. Shockley, supra.
Plaintiff filed her charge with the New York State Division of Human Rights on January 23, 1990. This charge was simultaneously filed with the EEOC. However, according to the holding in Love v. Pullman Co., 404 U.S. 522, 526, 92 S. Ct. 616, 618, 30 L. Ed. 2d 679 (1972), the charge filed with the EEOC is considered to be held in "suspended animation". Thus, the filing with the EEOC is effective at the termination of the state proceedings or 60 days after the filing of the state charge, whichever is earlier. Mohasco Corp. v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980). The proceedings before the State Division of Human Rights have not yet terminated. Therefore, the filing with the EEOC was effective on March 23, 1990. The critical question therefore is when did the last act take place.
Defendant argues that the last allegedly unlawful act occurred on April 19, 1989 when Plaintiff received her Logistics Specialist Payroll Authorization which informed her that she was not eligible for a merit increase in July of that year. Plaintiff argues that there was a continuing violation, and that the last discriminatory act was the failure to train her properly. However, as indicated above, the court finds that the failure to train/exposure to radiation allegation in the complaint is unsupported in the record, and that the undisputed proof is that she was not exposed to radiation.
At oral argument, the court asked Plaintiff's counsel what Plaintiff claimed was the last discriminatory act immediately preceding the alleged exposure to radiation. Plaintiff's counsel argued that it was the failure to give Plaintiff a merit increase in June, 1989. However, the uncontroverted proof clearly shows that Plaintiff was aware of the fact that she would not be eligible for the July merit increase on April 19, 1989. Therefore, Defendant is correct in asserting that the last act occurred on April 19, 1989.
With April 19, 1989 as the date of the last allegedly unlawful act, under Title VII Plaintiff's charge with the EEOC needed to be filed on or before February 13, 1990. The effective date of the filing was March 23, 1990, therefore her Title VII claims are time barred.
Defendant argues that Plaintiff's ADEA claim is also barred by the statute of limitations contained in the Act. Absent evidence of a willful violation of the ADEA, the applicable statute of limitations is two years. 29 U.S.C. § 255(a). However, assuming that Plaintiff can prove a willful violation of the ADEA, her claim under the ADEA is also governed by a three year statute of limitations. Russo v. Trifari, 837 F.2d 40 (2d Cir. 1988). The complaint was filed in this action on August 9, 1991 and it does not contain any allegations of a willful violation of the Act.
In opposition to Defendant's motion, Plaintiff asks that she be allowed to amend her complaint to allege a willful violation. The parties have completed discovery, and Plaintiff has presented no indication that any proof was adduced during discovery which would support such an allegation. Consequently, Plaintiff's request for leave to amend her complaint at this late stage is denied. The ADEA cause of action is therefore untimely and must be dismissed.
Plaintiff's claim for constructive discharge must be dismissed because she has failed to present sufficient proof to demonstrate the existence of a genuine issue of material fact. For the reasons expressed above, the first cause of action and the second cause of action are dismissed as untimely. Plaintiff has withdrawn the fourth and fifth causes of action; and in a decision rendered from the bench the court dismissed the third cause of action. The Clerk is directed to enter judgment in favor of Defendants dismissing the complaint.
IT IS SO ORDERED.
Dated at Binghamton, New York
January 16, 1993
Thomas J. McAvoy
United States District Judge