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FUENTES v. CITY OF NEW YORK HUMAN RESOURCES ADMIN.

September 13, 1993

MICHAEL FUENTES, Plaintiff,
v.
CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION, Defendant.



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

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiff was a candidate for promotion to Senior Special Officer ("sergeant") in 1986 and 1987 but was not promoted. Four other employees were promoted at that time, but had longer service than plaintiff and according to the agency were more qualified. No direct evidence of hostile animus has been presented. In 1984, 16% of the officers at the LaGuardia location were Hispanic; no argument appears to be made by plaintiff that significant statistical evidence of discrimination exists.

 The key question with respect to the merits is whether or not the agency has shown "legitimate, non-discriminatory reasons" for its actions, and if so, whether there is a genuine issue of material fact with respect to whether or not those reasons are merely pretextual. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Board of Trustees of Keene College v. Sweeney, 439 U.S. 24, 25, 58 L. Ed. 2d 216, 99 S. Ct. 295 (1978); Lieberman v. Gant, 630 F.2d 60, 65-66 (2d Cir 1980).

 The agency has moved for summary judgment pursuant to Fed.R.Civ.P. 56 on the grounds (a) that the claims are time-barred, and (b) that there is no genuine issue of material fact with respect to the merits.

 I grant the agency's motion to dismiss plaintiff's claims as time-barred with respect to claims under 42 USC 1981, and also with respect to Title VII insofar as plaintiff seeks monetary relief for past events. I deny the agency's motion for summary judgment with respect to the surviving portion of plaintiff's case, relating to injunctive relief and attorney's fees.

 II

 The applicable limitations period with respect to Title VII requires that a charge be filed with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the allegedly unlawful employment practice. 42 USC 20000-e(5)(e). This limitation is not jurisdictional, and must be given an interpretation which will fulfill its purposes of barring stale claims, while not penalizing unintentional harmless error. See generally Zipes v. TWA, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982); authorities cited, Wojik v. Postmaster General, 814 F. Supp. 8 (SDNY 1993); Fed.R.Civ.P. 61. Zipes held that waiver, estoppel or tolling may avoid the time bar, but none of these grounds for avoidance has been established here.

 Plaintiff's filed his charge with the EEOC on August 18, 1989. The latest promotion prior to that was on September 12, 1988, more than 300 days earlier. Plaintiff claims that a discouraging conversation which took place after the latest promotion amounted to a subsequent violation. Such a conversation is not by itself an event upon which a claim for damages, or even for equitable relief, may be predicated. To permit a vague event of this type to avoid an otherwise applicable time bar would effectively defeat the purpose of the time limit. See generally Sogluizzo v. Local 817, IBT, 514 F. Supp. 277, 279 (SDNY 1981).

 Plaintiff also argues that failure to promote is an ongoing violation, so long as the plaintiff is employed and eligible. See generally Ass'n Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274-75 (2d Cir 1981); Noble v. University of Rochester, 535 F.2d 756 (2d Cir 1976); Young v. Town of Fallsburg, 774 F. Supp. 205, 208-09 (SDNY 1991). *fn1"

 Ongoing illegal conduct may, however, be applicable to a claim for equitable relief against an allegedly continuing violation. Equitable relief concerning an ongoing situation does not have a chilling or punitive effect. Since in the case at bar the EEOC did hear the matter prior to the allegedly ongoing improper failure to promote, characterization of non-promotion as a continuing event is ...


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