left the workplace but continued both because Stock continued to publicly denigrate her and to defame her in a sexually charged manner and because the Thruway Authority refused to remedy the hostile environment Stock had created. Second, she argues that the Thruway Authority is estopped from asserting that the statute of limitations began to run on any date earlier than April 12, 1989. Finally, she claims that by filing a complaint with DOT on May 8, 1989, she tolled the statute of limitations.
"Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). This general principle guides consideration of each of Ryan's arguments.
A. Continuing Violation
Under the continuing violation exception, "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied 511 U.S. 1052, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994). Ordinarily the exception applies only to cases involving specific discriminatory mechanisms such as discriminatory seniority lists and does not address "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism." Id. However, "where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice," a continuing violation may be found. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). A Title VII claimant who wishes to claim a continuing violation must clearly assert it both in his filing with EEOC and his complaint. Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985).
Ryan claims that because she remained employed by the Thruway Authority and intended to return to her workplace if the Thruway Authority took steps to remedy the hostile environment caused by Stock's behavior, the discrimination against her continued while the Thruway Authority investigated her complaints against Stock. Under this analysis, the Title VII administrative statute of limitations would not begin to run until the Thruway Authority sent the April 12, 1989, letter rejecting Ryan's claims of discrimination, and Ryan's filing would be timely. However, a defendant's internal investigations do not constitute a continuing violation. See Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992) (applying Title VII continuing violation concepts to a Rehabilitation Act discrimination claim). Therefore, the Thruway Authority's investigation of Stock's allegation did not defer the date on which Ryan's Title VII claim accrued.
Ryan also urges that because Stock's harassment continued after she left the workplace on sick leave, her complaint fits into the continuing violation exception. On this motion and in her deposition testimony, she alleges that coworkers and supervisors repeatedly informed her that Stock continued to denigrate her after she left, that on October 13, 1988, Stock wrote a memo in which he referred to a history of complaints against Ryan and gave his version of the September 30, 1988, meeting, and that on September 19, 1989, Stock wrote a memorandum to a supervisor in which he accused Ryan of an inappropriate sexual interest in him. This argument fails because Ryan did not give notice of her continuing violation theory in her administrative complaint. See Miller, 755 F.2d at 25 (holding that a plaintiff who failed to assert in his administrative filing that his discharge was part of a continuing violation that included subsequent refusals by defendant's subsidiaries to rehire could not allege the refusal to rehire as part of a continuing violation in his complaint); Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31-32 (S.D.N.Y. 1994) (holding that plaintiff who in her EEOC complaint listed July 1, 1991, as both the beginning and the ending date of the discrimination against her was barred from claiming a continuing violation even though she checked the continuing violation box on her EEOC charge). Ryan's administrative complaint, which was notarized by her current attorney, states that the period of discrimination against her was from May 1986 to September 30, 1988. The complaint refers to events after September 30, 1988, only to the extent that it notes that the Thruway Authority had dismissed Ryan's claim of discrimination against Stock on April 12, 1989, and notified her that she could file with DHR or EEOC. The administrative complaint does not allege that the April 12, 1989, decision was itself discriminatory. Even when Ryan filed an amendment to her complaint in February 1991,
she described only one act, Stock's memo of September 12, 1989. DHR and EEOC had no reason to go beyond the scope of the complaint and amended complaint to ferret out the other instances which Ryan now claims constitute a practice or policy. Because Ryan failed to clearly indicate a continuing violation in her administrative filing, she cannot rely on this theory now.
Moreover, Ryan's initial administrative complaint was not timely filed as to the discriminatory conduct it alleged, and her amended complaint was not timely as to the conduct it alleged. Charges contained in an amendment to an original complaint that was timely filed relate back to the date of the original filing. 29 C.F.R. § 1601.12(b); Anderson v. Block, 807 F.2d 145, 147-148 (8th Cir. 1986). However, there is no indication in section 1601.12(b) or elsewhere that a complainant can cure an untimely original charge by an amended charge that is itself untimely as to the conduct it alleges.
Finally, even ignoring the failure of the original and amended administrative complaints to give notice of a continuing violation theory and the untimeliness of both the original and amended complaints as to the acts they do allege, Ryan's continuing violation theory is not persuasive. Ryan offers no competent evidence of any incident occurring after she left the workplace other than the Stock memoranda of October 13, 1988, and September 19, 1989. Her vague allegations concerning statements Stock made about her to co-workers after she left the workplace are supported only by hearsay. The two memoranda coupled with the incidents that occurred before Ryan left the workplace do not constitute "specific and related instances of discrimination [that] are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell, 23 F.3d at 704. Nor does Ryan allege, as the plaintiff did in Cornwell, a specific personnel policy that discriminates on the basis of gender. See id.
B. Equitable Tolling
Ryan next claims that the Thruway Authority is estopped from denying that April 12, 1989, is the date on which her Title VII claims accrued because it was on that date that the Thruway Authority wrote to her and told her she could complain to EEOC or DHR if she was not satisfied with the Thruway Authority's action on her complaint. In order to establish equitable tolling, Ryan must establish that she was unaware of the time limit for filing her Title VII complaint because of the Thruway Authority's misleading conduct. Cf. Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60-61 (2d Cir. 1986) (ADEA case). Ryan neither claims she was ignorant of the Title VII filing requirement nor shows any misleading conduct on the part of the Thruway Authority. A notice stating that Ryan could file with EEOC or DHR does not on its face carry any particular implication about the time limit for filing. Therefore, Ryan's claim of equitable tolling fails.
C. Filing with the Office of Civil Rights
Finally, Ryan urges that by filing a complaint with DOT, she tolled the limitations period for filing a complaint with EEOC. She seeks to analogize filing with DOT to filing with the Office of Federal Contract Compliance ("OFCC") because the Second Circuit has held that filing with OFCC constitutes a filing with EEOC. Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 755 n. 4 (2d Cir. 1976). Because the Second Circuit premised its holding in Egelston on a factor -- EEOC's practice of treating complaints filed with OFCC as having been filed with EEOC -- that is not present in this case, Ryan's argument lacks merit. See id. The Egelston court specifically noted that its holding was consistent with EEOC practice which was - entitled to "considerable deference." Id. See also EEOC v. Nicholson File Co., 408 F. Supp. 229, 234-235 (D. Conn. 1976) (finding Title VII's administrative statute of limitations to be tolled during the pendency of the plaintiff's complaint with OFCC because OFCC channelled complaints to the federal agency best equipped to investigate them and because OFCC could recommend that EEOC institute proceedings under Title VII). Plaintiff has cited no similar EEOC policy or regulation with respect to DOT and I have found none.
I have also found no case within the Second Circuit holding that filing with any agency other than OFCC constitutes a filing with EEOC. I therefore find that Ryan's filing with DOT did not constitute a filing with EEOC.
Finding that filing with DOT does not constitute filing with EEOC does not end the inquiry, however. The Second Circuit has also indicated in dicta that tolling of the time bar may be permitted as "a matter of fairness" if a plaintiff asserts her rights in the wrong forum. Miller, 755 F.2d at 24. Again, we find no cases within this circuit applying this rule to an agency other than OFCC. However, assuming that filing with a federal agency other than OFCC can toll the statute of limitations if equitable considerations are present, there are no such equitable considerations in this case. Plaintiff does not claim that she believed a Title VII claim could be filed with DOT. Moreover, the Thruway Authority informed Ryan that she could file a complaint with the EEOC or DHR before she filed her complaint with DOT. Because Ryan should have known that she should file her sexual harassment complaint with EEOC or DHR, equitable tolling is not appropriate.
II. Ryan's State Law Claims
Defendants also urge that Ryan's Human Rights Law claim should be dismissed either because it, too, is barred by the statute of limitations or because having dismissed Ryan's federal claim, it would be an abuse of discretion to retain her state claim. Neither argument has merit.
In New York, a discrimination claimant must elect to file with DHR or to bring a plenary action and -- unless her complaint is dismissed for administrative convenience -- cannot bring a plenary action after first resorting to the administrative forum. N.Y. Exec. Law § 297(9). In arguing for dismissal of Ryan's state claim, the defendants rely on the one year statute of limitations for filing an administrative complaint under the Human Rights Law. N.Y. Exec. Law § 297(5). Ryan responds that because her administrative complaint was dismissed for administrative convenience, she is bound not by the administrative statute of limitations but by the three year statute of limitations for bringing a plenary action under the Human Rights Law. N.Y. Exec. Law § 297(9); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). However, defendants claim that DHR acted beyond its power in dismissing Ryan's complaint for administrative convenience rather than dismissing the complaint because it was not timely filed. See Marine Midland Bank, N.A. v. NYSDHR, 75 N.Y.2d 240, 246, 552 N.Y.S.2d 65, 551 N.E.2d 558 (1989). In Marine Midland, the employer directly challenged a DHR decision that dismissed a complaint for administrative convenience after implicitly finding it to be time barred under the administrative statute of limitations. Id. at 244. The New York State Court of Appeals held that DHR's administrative convenience dismissal transgressed both the administrative statute of limitations and the requirement that a complainant elect either an administrative or a court remedy. Id. at 247. In this case, however, the Thruway Authority did not appeal directly from DHR's administrative convenience dismissal. In addition, DHR made no finding that Ryan's complaint was time barred.
Instead, DHR dismissed Ryan's complaint for administrative convenience because she wished to pursue a court action. DHR's administrative convenience dismissal therefore collaterally estops the Thruway Authority from claiming that Ryan's complaint was dismissed for any reason other than administrative convenience. See Adames v. Mitsubishi Bank Ltd., 751 F. Supp. 1565, 1576 (E.D.N.Y. 1990); Lippa v. General Motors Corp., A.C., 760 F. Supp. 1062, 1065-66 (W.D.N.Y. 1990). Because defendants can no longer question DHR's administrative convenience dismissal and because Ryan filed her complaint in this action within three years of the last act of harassment she alleges, her Human Rights Law claim is not time barred.
Defendants urge that I should nevertheless dismiss the Human Rights claim as a matter of sound judicial discretion since Ryan has no remaining federal claims. Jurisdiction over pendent state law claims is generally a matter for the exercise of the court's discretion. Morse, 973 F.2d at 127. A federal court must "consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988). Ordinarily when all federal claims have been eliminated before trial, balancing the Cohill factors points toward dismissal of the state law claims. Id. at 350 n.7. However, where the unique circumstances of the case indicate that judicial economy and fairness are best served by retaining jurisdiction of the state law claim, the district court can and should retain jurisdiction. Raucci v. Town of Rotterdam, 902 F.2d 1050, 1055 (2d Cir. 1990) (holding that it was not an abuse of discretion for district court to retain jurisdiction of a state law claim despite dismissal of all federal claims where the state law claim presented no novel legal issues, discovery was complete, the case was ready for trial and the court had determined three dispositive motions). This case, which was filed in September of 1991, is trial ready, and I have here decided a dispositive motion after a long discovery process. Neither judicial economy nor the parties would be served by forcing the parties to begin this litigation anew in state court. I therefore decline to dismiss Ryan's Human Rights Law claim.
III. Defendants' Remaining Requests
Defendants initially requested that Ryan not be granted a jury trial, that she be denied compensatory damages and punitive damages, and that any back pay awarded to her be cut off as of August 25, 1989, when she allegedly declined an offer of employment from the Thruway Authority. However, oral argument significantly limited the scope of the parties' disagreement concerning Ryan's state law claim. Defendants concede that Ryan is entitled to a jury trial on her Human Rights Law claim. See O'Brien v. King World Productions, Inc., 669 F. Supp. 639, 642 (S.D.N.Y. 1987). In addition, Ryan may request compensatory damages for pain and suffering, back pay and lost benefits on a Human Rights Law claim. See Antonsen v. Ward, 943 F.2d 198, 202 (2d Cir. 1991). Finally, plaintiff cannot claim punitive damages on a Human Rights Law claim. See Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 494, 591 N.Y.S.2d 978, 606 N.E.2d 1369 (1992).
Defendants continue to assert vigorously, however, that any award of back pay made to Ryan must be cut off as of August 25, 1989, the date on which they allege Ryan declined an offer of employment from the Thruway Authority that would have removed her from Stock's supervision and given her benefits and status commensurate with her former employment. New York recognizes that a Human Rights complainant must mitigate her damages by seeking and accepting other employment. See SDHR v. North Queensview Homes, Inc., 75 A.D.2d 819, 821, 427 N.Y.S.2d 483 (1980); 121--129 Broadway Realty Inc. v. NYSDHR, 48 A.D.2d 975, 976, 369 N.Y.S.2d 837 (1975). However, Ryan claims first that the offers made to her were not unequivocal, unconditional offers of employment and second that she was unable to act on the offers because of the disability, post traumatic stress disorder, caused by Stock's actions. Both of these contentions present issues of fact for the jury. See Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992). The ultimate question for the jury is whether the plaintiff acted reasonably. Id.
Defendants' request for summary judgment dismissing plaintiff's complaint is granted with prejudice as to Ryan's Title VII claim and denied as to her Human Rights Law claim. Plaintiff's request for punitive damages is stricken, but her requests for back pay and other compensatory damages on her Human Rights Law claim will be submitted to the jury. Defendants' request that we strike plaintiff's jury demand is denied.
IT IS SO ORDERED.
Dated: June 28, 1995
Rosemary S. Pooler
District Court Judge