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CAMPBELL v. GRAYLINE AIR SHUTTLE

July 2, 1996

MARILYN CAMPBELL, Plaintiff, against GRAYLINE AIR SHUTTLE, INC., and EDWARD KURYLUK, Defendants.


The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 SUMMARY

 This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and 42 U.S.C. § 1981 for the defendants' "functional demotion" of the plaintiff and other allegedly discriminatory acts. The plaintiff also raises pendent state law claims for intentional infliction of emotional distress and interference with her employment contract. Before the Court is the defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

 FACTS

 For purposes of this motion to dismiss, the following facts are accepted as true: The plaintiff, Marilyn Campbell ("Campbell"), who is black, began working for Giraldo Limousine Services ("Giraldo") on March 3, 1985. Compl. P10 & Exh. 1 PP1-2. Campbell received good performance evaluations and held the position of manager of Ground Transport personnel. Id. at P11. In 1988, defendant GrayLine Air Shuttle, Inc. ("GrayLine") acquired Giraldo and continued Campbell in its employ. Id.

 In 1990, GrayLine appointed defendant Edward Kuryluk ("Kuryluk") as Chief Executive Officer. Id. at PP12. Campbell alleges that upon his appointment Kuryluk began a "campaign of the demotion of Black and Hispanics of color and their respective replacement with non-minorities." Id. at P13.

 On May 22, 1992, Kuryluk informed Campbell that Sandy Alestre, who is Caucasian, would replace her as manager. Id. at Exh. 1 PP3, 6. On May 14, 1993, Campbell filed a complaint of racial discrimination against GrayLine with the New York State Division of Human Rights (the "SDHR") in which she described Alestre's appointment as a "functional demotion." Id. at P8 & Exh. 1.

 Campbell alleges that on February 2, 1995, Kuryluk "arbitrarily, capriciously, discriminatorily, and in retaliation" decreased her hours of work "by 5 hours." Compl. P16. Campbell also alleges that "in furtherance of defendants' discriminatory conduct against Ms. Campbell," the defendants denied her the necessary supplies, equipment, and space that she needed to perform her duties. Id. at PP17-18.

 The following are based on documents in plaintiff's possession or of which plaintiff had knowledge and on which plaintiff relied in bringing suit:

 On August 28, 1995, the SDHR issued a determination that there was no probable cause to believe that GrayLine discriminated against Campbell. D'Angelo Aff. Exh. B. The SDHR's conclusion was based in part upon a finding that GrayLine had not reduced Campbell's salary in spite of her alleged demotion. Id.

 On March 6, 1996, Campbell commenced this action, naming both GrayLine and Kuryluk as defendants. On May 1, 1996, the defendants filed this motion to dismiss. Oral argument was held on June 28, 1996.

 DISCUSSION

 Campbell's claims are based upon three types of conduct by the defendants: (1) the May 22, 1992 demotion; (2) the withholding of supplies and work space; and (3) the February 2, 1995 reduction in her work hours. The causes of action in the Complaint arise under Title VII of the Civil Right Act of 1964; 42 U.S.C. § 1981; and state law. Since the elements for successful pleading of each claim vary, they are discussed separately.

 I. Motion to Dismiss Standards

 A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).

 When deciding a motion to dismiss, the court must take as true all factual allegations in the complaint and construe them favorably to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). The court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995).

 II. Title VII Claims

 A person who has an employment grievance may seek redress under Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq. Title VII provides for detailed administrative remedies that must be exhausted before the statute's protections may be invoked in federal court.

 The Demotion Claim

 The defendants argue that Campbell's Title VII claim for demotion is based on an untimely filed EEOC charge. Def. Br. at 7-9. This court agrees.

 "As a condition precedent to bringing suit in a Title VII action, a plaintiff must file a complaint with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the discriminatory act and obtain a right-to-sue letter." Julian v. New York City Transit Authority, 857 F. Supp. 242, 249 (E.D.N.Y. 1994), aff'd, 52 F.3d 312 (2d Cir. 1995); see 42 U.S.C. § 2000e-5(e)(1). *fn2"

 In a state such as New York, which has a state agency through which a complainant can seek relief from discrimination, a charge initially filed with the state agency is deemed filed with the EEOC 60 days after the charge was received by the state agency or upon termination of processing by the state agency, whichever is earliest. 29 C.F.R. § 1601.13(b)(1); Ford v. Bernard Fineson Development Center, 81 F.3d 304, 308 & n.7 (2d Cir. 1996)(deeming charge filed with EEOC on date of filing with New York SDHR).

 The 300-day time period within which a complainant may file an EEOC charge begins to run when the plaintiff first receives notice of the employment decision at issue. See Delaware State College v. Ricks, 449 U.S. 250, 259, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). In Delaware State College, college trustees notified a professor on June 26, 1974 that he did not receive tenure and that his employment would expire at the end of his contract on June 30, 1975. Id. at 252-54. The Court held that the limitations period began on June 26, 1974, the day on which the professor received notice of the trustees' decision. Id. at 258. See also Smith v. United Parcel Service of America, Inc., 65 F.3d 266, 268 (2d Cir. 1995)("The limitations period begins to run 'on the date when the employee receives a definite notice of the [employment action]'").

 Campbell's SDHR charge, filed on May 14, 1993, reads in pertinent part:

 
On May 22, 1992 I was informed by Edward Kuryluk (Caucasian), Chief Executive Officer, that Sandy Alestre (Caucasian) would become the new manager, effective May 27, 1992, thereby reducing my duties . . . . On May 26, 1992 I wrote a ...

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