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REDLICH v. ALBANY LAW SCH.

October 1, 1995

ALLEN REDLICH, Plaintiff, against THE ALBANY LAW SCHOOL OF UNION UNIVERSITY, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 Plaintiff, Allen Redlich, *fn1" brings this action against the defendant, The Albany Law School of Union University ("Albany Law School"), pursuant to the Americans With Disabilities Act (ADA) (42 U.S.C. §§ 12101-12213), the Rehabilitation Act of 1973 (29 U.S.C. § 706(8)(B)), New York Executive Law § 296(1), and state Contract law.

 The plaintiff alleges that the defendant discriminated against him on the basis of his disability, and breached an employment contract. The plaintiff had suffered a stroke in January 1983, which impaired the use of his left leg, arm, and hand. Plaintiff alleges that from that time until the present, Albany Law School granted him smaller annual raises than those given to comparably tenured faculty. He alleges that this practice was not on the basis of objective criteria evenly applied to all faculty members, but on the basis of a discriminatory bias against him as a disabled individual. Plaintiff alleges that he did not discover the disparity in salary increases until sometime in March of 1994, due to the defendant's policy of absolute secrecy with respect to faculty salaries.

 The defendants argue that the salary increments reflect the unbiased assessment of the plaintiff's performance, seniority, and other factors as determined by the then deans *fn2" of the school. In particular the deans stressed that the primary factors considered were scholarship, teaching, and community service, and state that the plaintiff ranked in the lower one-third of all faculty with respect to the criteria used to determine the amount of raise to be given. The defendant admits that there was a general awareness of the plaintiff's physical condition, but points to the fact that the plaintiff taught a full load of classes, inter alia, as evidence that he did not have any substantial limitation on his major life activities.

 The defendant also argues that the plaintiff's federal and state discrimination based claims are time-barred. In particular, the defendant argues that the plaintiff's ADA claim is time-barred because he failed to file a claim with the New York State Division of Human Rights, and failed to file a claim with the Equal Employment Opportunity Administration within the prescribed time period. In addition, the defendant argues that the plaintiff was aware of the acts, for which he has now commenced this action, more than three years ago. Accordingly, the defendant argues that the plaintiff's claims brought pursuant to the Rehabilitation Act and the New York Executive Law are time-barred, and must be dismissed.

 II. DISCUSSION

 A. Standard For Summary Judgment

 The standard for granting a motion for summary judgment is well-settled. 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). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265(1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Rwy. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In addition, all ambiguities must be weighed in favor of the non-moving party, and all reasonable inferences drawn against the moving party. See Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); see also, Matsushita, 475 U.S. at 586. "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). It is with the foregoing standards in mind that the Court turns to the issues presented.

 B. Plaintiff's Claim Under The Americans With Disabilities Act (ADA)

 There are two crucial issues presented with respect to the plaintiff's ADA claim: (1) whether the plaintiff has complied with the procedural prerequisites to commencing an action in a federal court alleging a violation of the ADA, or whether the plaintiff is excused from strict compliance with such procedures, and, assuming compliance or excuse, (2) whether the plaintiff comes within the scope of the statute, such that even if properly in federal court, the plaintiff could maintain an ADA claim at all.

 1. Procedural Prerequisites

 The ADA is a federal statute which prohibits discrimination in private employment against those who are disabled, or who are perceived as disabled. 42 U.S.C. § 12102, et seq. The ADA protects individuals who can show that they suffer an impairment that substantially limits a major life activity. 42 U.S.C. § 12112(a). ADA § 107, specifically incorporates by reference the enforcement mechanisms set out in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12117(a). Title VII requires a claimant who wishes to bring a suit in federal court, inter alia, to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within one hundred eighty (180) days "after the alleged unlawful employment practice occurred," or within three hundred 300 days of the alleged discrimination if the claimant "has initially instituted proceedings with a State or local agency with authority to grant or seek relief ... or to institute criminal proceedings ..." 42 U.S.C. § 2000e-5(e) (300 day period is the available filing period for claimants in New York which has its own fair employment laws). Title VII further provides that "a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved" within 90 days of receipt of what is known as a "right-to-sue" letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Failure to file before this time elapses requires the court to dismiss a subsequent lawsuit as untimely. See, e.g., Delaware State College v. Ricks, 449 U.S. 250, 256, 101 S. Ct. 498, 503, 66 L. Ed. 2d 431 (1980); Smith v. McClammy, 740 F.2d 925, 927 (11th Cir. 1984).

 The U.S. Supreme Court, however, has held that complying with the 300-day EEOC charge filing period is not a jurisdictional prerequisite for a Title VII court suit; rather, the filing period acts as a statute of limitations and is subject to waiver, estoppel, and/or equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982). Nevertheless, the Second Circuit has held that "when a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred.... A district court only has jurisdiction to hear [such] claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir.1993) (in context of a Title VII case) (citations omitted). Furthermore, notwithstanding the suggestion by the Zipes Court that the failure to file an EEOC claim is not fatal to a civil action, a plaintiff may not forego filing a complaint with the EEOC altogether. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 n. 6, 104 S. Ct. 1723, 1726 n. 6, 80 L. Ed. 2d 196 (1984) (per curiam). "In other words, although the timeliness of the filing with the EEOC is in the nature of a statute of limitations, the act of filing is a jurisdictional prerequisite to the commencement of a Title VII suit in the federal courts. Thus, absent plaintiff's filing of a complaint with the EEOC and [his] receipt of a right to sue letter," the Court lacks subject matter jurisdiction to entertain plaintiff's ADA claim. Bent v. Mount Sinai Medical Center, 882 F. Supp. 353, 355 (S.D.N.Y. 1995) (Title VII claim) (citations omitted); see also, Donnelly-Keller v. H & R Block, Inc., 1992 U.S. Dist. LEXIS 13323, 1992 WL 218282 (N.D.N.Y. 1992), aff'd, 992 F.2d 319 (2d Cir. 1993) (Title VII claim); Miller v. International Tel. & Tel. Corp., 755 F.2d 20 (2d Cir.), cert. ...


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