for such positions. The Court observes that the defendants' application is properly regarded as seeking partial summary judgment, as the defendants do not set forth any contentions concerning the viability of the plaintiff's procedural due process claim under 42 U.S.C. § 1983, his conspiracy claim under 42 U.S.C. § 1985(3), and his pendent claims under the New York Civil Service Law.
A. Alleged Failure to Bring Suit within Prescribed Time Period
The defendants contend that the plaintiff's Title VII claims are barred because this action was not commenced within the applicable ninety-day period running from receipt of the right-to-sue letter. Specifically, the defendants assert that, as a matter of law, the plaintiff constructively received his right-to-sue letter on November 8, 1992, and that the plaintiff's failure to commence this action within 90 days thereof renders his Title VII claims untimely. The plaintiff, in turn, contends that he promptly commenced this action within the statutorily prescribed period by filing a complaint seeking in forma pauperis relief, on February 1, 1993, with the Pro Se Office of the United States District Court for the Southern District of New York.
A review of the record shows that on August 22, 1991, plaintiff instituted a charge of discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended, against the Nassau County Civil Service Commission. Plaintiff filed this charge with the Equal Employment Opportunity Commission [EEOC], and the New York State Division of Human Rights, claiming discrimination on the basis of race and national origin. See Defs.' Statement of Material Facts PP 1-2.
On October 30, 1992, the EEOC issued a determination dismissing plaintiff's charge. See id. PP 3-4; Defs.' Notice of Motion, Ex. B. This right-to-sue letter was mailed by certified mail on October 30, 1992 to plaintiff's address at 220 Anchor Way, Uniondale, New York 11553. This letter was returned to the EEOC, on November 20, 1992, as unclaimed. See Defs.' Statement of Material Facts P 4.
On January 22, 1993, plaintiff called the EEOC regarding the status of his claim. Over the telephone, plaintiff was notified of the dismissal of his charge of discrimination. The right-to-sue letter was then reissued and mailed, on January 26, 1993, to plaintiff's mailing address of P.O. Box 2994, New York, NY 10185. See id. The plaintiff asserts that he received the right-to-sue letter on January 27, 1993. See Am. Compl. P 26.
On February 1, 1993, the plaintiff submitted a pro se complaint, seeking in forma pauperis relief, to the Pro Se Office of the United States District Court for the Southern District of New York. See Defs.' Notice of Motion, Ex. C, at 1. The Nassau County Civil Service Commission was the sole defendant named in this initial complaint. See id. This complaint, however, was not filed in the Southern District until March 12, 1993. See Defs.' Statement of Material Facts P 5; Defs.' Notice of Motion, Ex. C, at 1.
By Order dated March 12, 1993, this case was transferred to the Eastern District of New York pursuant to 28 U.S.C. § 1406(a). See Pl.'s Notice of Motion, Ex. A. On March 30, 1993, defendant Nassau County Civil Service Commission received a copy of the complaint by mail.
See Defs.' Statement of Material Facts P 7.
2. Legal Analysis
It is well established that a plaintiff generally must file a lawsuit under Title VII in federal district court within 90 days after receipt of a "right-to-sue letter" from the EEOC. Failure to file suit within the statutory mandated period is cause for dismissal. See 42 U.S.C. § 2000e-5(f)(1).
The defendants do not dispute the plaintiffs' contention that he did not actually receive the right-to-sue letter until January 27, 1993, and that if that date is employed for determining the commencement of the 90-day period, then the plaintiff's Title VII claims would be timely. The defendants assert, however, that the date of constructive receipt in this case should be November 8, 1992. According to the defendants, this date should be employed because it is seven business days after the EEOC's issuance of its right-to-sue letter on October 30, 1992. The defendants further argue that the doctrine of constructive receipt should apply because it was the plaintiff's own lack of diligence, in failing to notify the EEOC of his change of address, that caused the right-to-sue letter to be returned to the EEOC as unclaimed mail. In support of their contention, the defendants direct the Court to 29 C.F.R. § 1601.7(b), which imposes upon the person aggrieved "the responsibility to provide the [EEOC] with notice of any change in address and with notice of any prolonged absence from that current address so that he or she can be located when necessary during the [EEOC's] consideration of the charge." 29 C.F.R. § 1601.7(b) (1995). Accordingly, the defendants assert that the plaintiff's failure to commence this action by February 10, 1993 warrants the dismissal of his Title VII claims. See Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (90-day filing period commences 5 days after date EEOC mailed right-to-sue letter to address of record); St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984) (90-day limit for filing employment discrimination suit begins on date that right-to-sue letter was delivered to the most recent address plaintiff had provided the EEOC); Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982) (per curiam) (plaintiff bears burden of advising EEOC of address changes or to take other reasonable steps to ensure delivery of the notice to his current address); Roush v. Kartridge Pak Co., 838 F. Supp. 1328, 1335 (S.D. Iowa 1993) (employing presumption that right-to-sue letter was received by plaintiff 7 days after being mailed by the EEOC); compare Hernandez v. Hill Country Tel. Coop., Inc., 849 F.2d 139, 141-42 (5th Cir. 1988) (under Fifth Circuit law, when the right-to-sue letter is addressed to the claimant, the 90-day period begins to run when the claimant, and not his attorney, receives such letter); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435 (1990) (equitable tolling does not apply to garden variety claims of excusable neglect).
It is unnecessary, however, for this Court to decide whether the doctrine of constructive receipt should apply in this case because, under the law of the Second Circuit, the plaintiff constructively filed this lawsuit prior to February 10, 1993. A review of the initial pro se complaint that plaintiff filed in the Southern District of New York shows that it was stamped as received by the Southern District's Pro Se Office on February 1, 1993. See Defs.' Notice of Motion, Ex. C, at 1. The Second Circuit Court of Appeals has held that, where the plaintiff seeks approval to proceed in forma pauperis, the date of submission of a complaint to the Pro Se Office shall be regarded as the date of filing for purposes of the statute of limitations. See Toliver v. Sullivan County, 841 F.2d 41, 42 (2d Cir. 1988) (per curiam) ("Where in forma pauperis relief is granted, the action should be treated as timely, provided the complaint was received by the clerk's office prior to the expiration of the limitations period."). It is undisputed that the plaintiff was granted in forma pauperis relief in this case. Accordingly, even under the defendants' proposed analysis, the plaintiff's complaint was timely.
B. Prima Facie Case of Employment Discrimination
The defendants also seek summary judgment dismissing the plaintiff's employment discrimination claims for failure to establish a prima facie case. Although the defendants specifically refer only to plaintiff's Title VII claims as the subject of their application, the Court observes that the analysis for determining whether the plaintiff has established a prima facie case of discrimination through circumstantial evidence
is the same under Title VII as it is under the following additional statutes pursuant to which he seeks relief: 42 U.S.C. §§ 1981 and 1983, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132 (1989) (employment discrimination claim under 42 U.S.C. § 1981) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621-22, 83 L. Ed. 2d 523 (1985) (ADEA case); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.) (age discrimination case under New York law), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992); Bunch v. Bullard, 795 F.2d 384, 387 n.1 (5th Cir. 1986) (when 42 U.S.C. §§ 1981 and 1983 are used as parallel causes of action to Title VII, the claims are analyzed the same way); Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982) (employing shifting-burdens analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), in race discrimination case brought against state actor under 42 U.S.C. § 1983). Accordingly, the Court construes the defendants' application to seek summary judgment under each of these statutes.
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color . . . or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). "With the goal of 'progressively sharpening the inquiry into the elusive factual question of intentional discrimination,'" the Supreme Court, in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2746, 125 L. Ed. 2d 407 (1993) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 & n.8, 101 S. Ct. 1089, 1094 & n.8, 67 L. Ed. 2d 207 (1981)).
Under the McDonnell Douglas framework, in order to establish discriminatory treatment, a plaintiff first bears the burden of establishing a prima facie case of discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at 1824. A plaintiff establishes a prima facie case by proving by a preponderance of the evidence: (i) that he belongs to a protected class; (ii) that he applied for and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. See Burdine, 450 U.S. at 253, 101 S. Ct. at 1094; McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at 1824. The establishment of a prima facie case raises a rebuttable presumption that the employer unlawfully discriminated against the employee. See St. Mary's Honor Center, 113 S. Ct. at 2747; Burdine, 450 U.S. at 254, 101 S. Ct. at 1094.
If the plaintiff makes the required showing, a burden of production then shifts to the employer to rebut the prima facie case. See Burdine, 450 U.S. at 254-55, 101 S. Ct. at 1094. This burden of production requires the employer to articulate a legitimate non-discriminatory reason, by clearly setting "'forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Center, 113 S. Ct. at 2747 (emphasis in original) (quoting Burdine, 450 U.S. at 254-55 & n.8, 101 S. Ct. at 1094-95 & n.8).
If the employer succeeds in carrying its burden of production, "the McDonnell Douglas framework--with its presumptions and burdens--is no longer relevant." St. Mary's Honor Center, 113 S. Ct. at 2749. Rather, the analysis is returned to the traditional burden of proof applicable to civil actions, with the plaintiff retaining the "'ultimate burden of persuading the trier of fact that he has been the victim of intentional discrimination.'" Id. at 2747-48 (quoting Burdine, 450 U.S. at 256, 101 S. Ct. at 1095). Thus, even should the trier of fact disbelieve the reason for the employment decision proffered by the employer, this alone is not enough to hold the employer liable under Title VII, because the plaintiff still must prove that the employer intentionally discriminated on the basis of an unlawful motive. See id. at 2749; Pearlstein v. Staten Island Univ. Hosp., 886 F. Supp. 260, 265-66 (E.D.N.Y. 1995); Williams v. Port Auth., 880 F. Supp. 980, 989-90 (E.D.N.Y. 1995).
Having set forth the governing analysis, the Court now turns to examine the record with respect to each of the positions at issue in this case. With one exception, the defendants contend that the plaintiff fails to make out a prima facie case of discrimination because he was not qualified for the positions for which he applied, as evidenced through his failure to pass the applicable civil service examinations. In the case of the position of Assistant to Medical Supply Supervisor--for which it is undisputed that the plaintiff passed the civil service examination--the defendants assert that the plaintiff fails to make out a prima facie case because he was never rejected for this position.
1. Position of Veterans' Counselor II
Plaintiff did not take Examination 60-008 for the position of Veterans' Counselor II. According to the plaintiff, he did not sit for this examination because the defendant Nassau County Civil Service Commission, acting with discriminatory intent, refused to process his application to take this test. The defendants, in turn, contend that the plaintiff was not permitted to take this examination because he did not meet the minimum requirements for this position of having a bachelor's degree and the necessary work experience. See Defs.' Statement of Material Facts P 12.
The examination announcement for the position of Veterans' Counselor II sets forth the following minimum qualifications:
MINIMUM QUALIFICATIONS: Must be met by the date of the written test:
Bachelor's degree from a regionally accredited or New York State registered college or university