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CARRASCO v. NEW YORK CITY OFF-TRACK BETTING CORP.

June 30, 1994

NITZA CARRASCO, Plaintiff,
v.
NEW YORK CITY OFF-TRACK BETTING CORPORATION; HAZEL N. DUKES, DAVID L. VAUGHN, and GWENNETHA NESBETH, Defendants.


Leisure


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an employment discrimination action brought under Title VII, 42 U.S.C. ยง 2000e, et seq. In her Amended Complaint, filed on November 9, 1993 ("Am. Compl."), plaintiff Nitza Carrasco alleges that defendants violated Title VII by discriminating and retaliating against her on the basis of her national origin and race. Am. Compl. at P 47. Plaintiff also alleges five pendent state claims. Id. at P 48-57. On February 16, 1994, defendant New York City Off-Track Betting Corporation ("OTB") moved to dismiss plaintiff's Amended Complaint in its entirety for failure to timely commence the action. For the reasons set forth below the motion is hereby granted. *fn1"

 BACKGROUND

 For purposes of this motion to dismiss, the allegations in the Amended Complaint are assumed to be true. See Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

 Plaintiff Nitza Carrasco, a Hispanic woman, has worked for OTB since 1971. Am. Compl. at P 15. Plaintiff claims that on July 1, 1991, she was passed over for a promotion to the position of manager on account of her national origin, Am. Compl. at P 17, 23, and defendant Gwennetha Nesbeth, an African-American woman, was promoted to the position of manager instead of her. Am. Compl. at P 18. Plaintiff, who had previously served as acting manager, contends that Nesbeth is less qualified. Am. Compl. at P 18, 19. Plaintiff alleges that the failure to promote her was part of defendants' widespread practice of favoring African-Americans in employment decisions. Am. Compl. at P 24.

 Plaintiff also alleges that she has been subjected to acts of harassment in retaliation for her complaints which she voiced to OTB and to her union. Am. Compl. at P 22, 29, 30. Plaintiff claims that this harassment took the form of accusations by Nesbeth that plaintiff was poorly performing her duties and a written reprimand from defendants Dukes and Vaughn. Am. Compl. at P 31.

 On May 26, 1992, 330 days after plaintiff was denied the promotion, plaintiff filed a Charge of Discrimination and an Affidavit (the "EEOC charge") with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination and harassment. Declaration of Nitza Carrasco, dated April 14, 1994 ("Decl. of Nitza Carrasco") at Ex. A, Ex. B. On June 24, 1992, the EEOC issued a Notice of Right to Sue, which stated that the EEOC would not investigate plaintiff's charge because it was untimely. Declaration of Pedro Medina, Jr., Esq., dated February 14, 1994, at Ex. B. Within 90 days of receipt thereof, on September 18, 1992, plaintiff filed her instant Complaint in this Court.

 DISCUSSION

 I. Applicable Standard for a Motion to Dismiss Pursuant to Federal Rule 12(b)(6)

 Defendant has moved for an order dismissing plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6). "Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted . . . ." Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).

 "When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3, Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). See also Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) ("The function of a motion to dismiss 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'") (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). The Court must draw all reasonable inferences in plaintiff's favor. Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Hill v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y. 1989) ("All allegations in plaintiffs' amended complaint must be accepted as true and liberally construed."). A motion to dismiss must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); see also Oliver Schools, Inc. v. Foley, 930 F.2d 248, 252 (2d Cir. 1991).

 The Amended Complaint in the case at bar attempts to allege a cause of action for violation of plaintiff's civil rights. "If a civil rights complaint is to survive a motion to dismiss, it must make specific factual allegations indicating a deprivation of rights." Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)). The Second Circuit has "repeatedly held, complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr, 810 F.2d at 363. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Koch v. Yunich, 533 F.2d 80, 85 (2d. Cir. 1976)). Furthermore, this pleading requirement has been "scrupulously . . . observed" by ...


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