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ARCHER v. GLOBE MOTORISTS SUPPLY CO.

May 25, 1993

OUIDA PAULINE ARCHER, Plaintiff,
v.
GLOBE MOTORISTS SUPPLY CO., INC., et al., Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Defendants in this employment discrimination case under Title VII of the Civil Rights Act of 1984, 42 USC § 2000-e et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 USC § 621 et seq. ("ADEA") move for summary judgment on the grounds that the suit is untimely and that defendants did not have the requisite fifteen (15) employees during the times necessary for coverage of plaintiff's complaint.

 I deny defendants' motion to dismiss the complaint: for reasons set forth below, I deem the individual defendants dropped without prejudice to a motion by plaintiff to amend the complaint to add them, if reasons for piercing the corporate veil or sufficiently detailed factual allegations of specific personal (not vicarious) wrongdoing on their part are made.

 II

 Time limitations in employment discrimination cases are important to inhibit suits brought as afterthoughts or when evidence has become stale, causing prejudice to the defendants. In cases of substantial delay, these limitations must be strictly enforced. See Wojik v. Postmaster General, 814 F. Supp. 8 (S.D.N.Y. 1993). They are not, however, jurisdictional and can be tolled where confusion may have been caused without the fault of the party whose claim is sought to be barred. Zipes v. TWA, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982).

 Where notice by mail is used, particular vigilance is important to avoid loss of parties' rights due to delays in the Postal Service or confusion as to the precise time of mailing or receipt. Cruz v. Sullivan, 802 F. Supp. 1015 (S.D.N.Y. 1992); see Rivera v. M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988); American Postal Workers Union v. USPS, 265 U.S. App. D.C. 146, 830 F.2d 294 (D.C. Cir. 1987); Barringer, "What Can Go Wrong in Census? 2.3 Million Undelivered Packets," N.Y. Times, April 5, 1990 at A18; Sloane, "When the Check is NOT in the Mail," N.Y. Times, Feb. 29, 1992 at 52.

 Fed.R.Civ.P. 6(e) provides for an additional three days of grace where notice is given by mail, a rule which has persuasive relevance to notice in any legal context. The precise timing of relevant documents, which may be important in determining whether plaintiff's suit is timely under 42 USC §§ 2000-e(5)(e) and (f)(1) is unclear from the parties' submissions, is dependent upon conflicting inferences, and appears to admit of genuine dispute. At this juncture I cannot determine that no genuine issue of material fact in regard to timeliness exists.

 III

 The status of the individual defendants as owners or supervisors does not automatically remove them from the category of employees under the relevant statutes. See Hyland v. New Haven Radiology Associates, 794 F.2d 793 (2d Cir. 1986). Defendants do not deny that if the individual defendants are counted, the statutory threshold of fifteen employees during the relevant period is satisfied. Consequently, a genuine issue of material fact exists with regard to coverage.

 IV

 Potential liability of an entity does not necessarily imply vulnerability to suit on the part of its officers, directors or owners. See Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 525 (4th Cir. 1987) and cases cited (relating to long-arm jurisdiction); Allen v. City of Yonkers, 803 F. Supp. 679 (S.D.N.Y. 1992) (civil rights suit). Title VII and the ADEA are directed toward employers, not individual non-employer natural persons, at least absent intentional misconduct. See Miller v. Maxwell's International, 991 F.2d 583, 1993 U.S. App. LEXIS 8183, 61 U.S.L. Week 2649 (9th Cir. 1993).

 The position successfully taken by plaintiff in sustaining the complaint against defendants' motion asserting lack of coverage involves characterizing the individual defendants here as employees. As such, they cannot routinely or automatically be deemed liable ...


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