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JANNEH v. REGENCY HOTEL

November 25, 1994

DOUDOU B. JANNEH, Plaintiff, against THE REGENCY HOTEL, BINGHAMTON, Defendant.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. BACKGROUND

 This action alleges a claim of racial discrimination in employment against defendant, The Regency Hotel, Binghamton ("the Regency"). Plaintiff was hired as a night auditor by the Regency on August 12, 1989. He was terminated on September 6, 1989. Plaintiff at all times was an at-will employee. His employment was for an indefinite duration and he has presented no facts giving any indication that the job would last for a specific period of time.

 Defendant claims that soon after plaintiff was hired it became apparent that he did not have the experience, knowledge or ability for the night auditor position. Defendant claims that as a result, plaintiff was terminated for unsatisfactory performance. Plaintiff, a black male, asserts that he was terminated because of his race, color and national origin.

 After his discharge, plaintiff filed a claim with the New York State Division of Human Rights (DHR) alleging unlawful discrimination under the New York State Human Rights Law. The claim was also filed with the Equal Employment Opportunity Commission (EEOC) alleging unlawful discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). After conducting an investigation, the DHR issued a Determination and Order on October 23, 1991 in which it found no probable cause to support a claim against the Regency. This determination was confirmed and adopted by the EEOC on May 22, 1992.

 The EEOC determination notified plaintiff that he had a right to file a private cause of action in United States District Court within 90 days of receipt of the determination. Plaintiff filed the instant suit on October 1, 1992. It includes claims under Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1988, and New York State Human Rights Law, as well as common law causes of action. Defendant now brings a motion for summary judgment in its favor as does the plaintiff.

 II. DISCUSSION

 A. Standard for Summary Judgment

 Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. Ry. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990), quoting, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). All ambiguities must be weighed in favor of the nonmoving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). It is in light of this standard that the court examines plaintiff's claims.

 B. Title VII Claim

 Defendant argues that plaintiff's Title VII claim should be dismissed because he filed it approximately 126 days *fn1" after he received notice from the EEOC that he had a right to file a private cause of action in federal court within 90 days. The EEOC determination was dated May 22, 1992 and plaintiff has made no argument that he did not timely receive the document by mail. Plaintiff rather argues that this suit was commenced on August 20, 1992.

 Documents from the case file show that an application to proceed in forma pauperis was signed by the plaintiff and received by the clerk on August 20, 1992. However, this application and the complaint were not filed until October 1, 1992. The EEOC determination, which plaintiff filed along with his complaint, specifically stated that a private action in district court must be filed within 90 days of receipt of the determination to continue the matter. It also stated that "filing this notice is not sufficient. A court complaint must contain a short statement of the facts of this case which shows that the aggrieved party is entitled to relief." EEOC Determination, Charge No. 16G-90-0220, May 22, 1992.

 Fed.R.Civ.P. 3 states that "a civil action is commenced by filing a complaint with the court." Since plaintiff did not file a complaint until October 1, 1992, he missed the 90 day deadline regardless of the fact that he provided the clerk's office with an application to proceed in forma pauperis on August 20, 1992. ...


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