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RIVERA v. PUERTO RICAN HOME ATTENDANTS SERVS.

April 25, 1996

DIANA RIVERA, et ano., Plaintiffs, against PUERTO RICAN HOME ATTENDANTS SERVICES, INC., et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 The City of New York moves pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6) to dismiss this employment discrimination action brought under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law as against it on the ground that the City was not named in the EEOC charges and, in any case, because the City was not the plaintiffs' employer. The motion is denied.

 Facts

 The plaintiffs in this action, Diana Rivera and Iris Fernandez, are both former employees of defendant Puerto Rican Home Attendants Service, Inc. ("PRHAS") and allege similar charges of sex discrimination and retaliation. (Def. Mem. 1)

 The EEOC Charges

 The City's motion turns in part on whether the plaintiffs may sue the City in view of their alleged failure to name the City as a party in their EEOC charges.

 Plaintiffs each filed a charge with the EEOC alleging sexual harassment and retaliation by PRHAS between April and May of 1995. *fn1" (Nunez Aff. Ex. B; Cpt. P 3; Am. Cpt. P 3; Piel Aff. PP 4-5) PRHAS was the only name each plaintiff listed in response to the space provided for the "Name[ of] the employer, labor organization, . . . state or local government" who discriminated against the complainant. (Id.)

 In a statement attached to her EEOC charge, Ms. Rivera discussed in detail her complaints about the conduct of Juan Hernandez, now a defendant in this action, and described there as Deputy Director of PRHAS. *fn2" However, Ms. Rivera made no mention of the City.

 The other plaintiff, Ms. Fernandez, attached an affidavit to her EEOC charge that described in detail her "complaint of harassment against [defendants] Michael Nunez and Juan Hernandez, and the Puerto Rican Home Attendants Services, Inc." Ms. Fernandez' affidavit specifically mentioned the City. She stated that PRHAS "is a home care agency providing personal care services to the elderly and infirm in the South Bronx. The agency is funded by Medicaid through the Medicaid Managment [sic] Information System. The Human Resources Administration of the City of New York is the monitoring agency." (Nunez Aff. Ex. B)

 On July 10, 1995, the EEOC issued both plaintiffs right to sue letters against defendant PRHAS. (Piel Aff. P 7; Cpt. Exs. A-B; Amended Cpt. Exs. A-B) The EEOC conducted no investigation or conciliation efforts. (Pl. Mem. 2, 7)

 Notice of Claim

 Subsequent to filing the EEOC charges and prior to filing the complaint in this Court, plaintiffs each filed a notice of claim with the City asserting the City's responsibility as an employer. (Piel Aff. P 6) The City acknowledges that a notice of claim was filed. (Def's Reply Mem. 5) However, neither party's papers sheds light on the specific date that a notice of claim was filed, and ...


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