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October 31, 1996

LESIA FIGUEIRA, Plaintiff, against BLACK ENTERTAINMENT TELEVISION, INC. and PAIGE PUBLICATIONS (a wholly owned subsidiary of BET), Defendants.

The opinion of the court was delivered by: MUKASEY


 Lesia Figueira sues Black Entertainment Television, Inc. and its wholly owned subsidiary, Paige Publications (collectively "BET"), for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, including the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Plaintiff also sues for violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2615 et seq., New York State Executive Law § 296 and the New York City Administrative Code § 8-101. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendant's motion to dismiss is denied.


 The following assertions, presumed true for the purposes of this motion, are taken from plaintiff's complaint: Figueira is female and a citizen of New York. (Compl. P 8) BET is a New York corporation with its principal place of business at 380 Madison Avenue, 20th Floor, New York, New York. (Id. P 9)

 Figueira started working for BET in August 1993 as an account executive. Her primary duty was to sell advertising in BET's publication, YBS Magazine. Plaintiff performed her duties well, and achieved a high volume of sales. (Compl. P 11) On or about January 1, 1995 plaintiff told her immediate supervisor that she was pregnant and would give birth sometime in August 1995. Plaintiff also told her supervisor that she would take maternity leave as authorized by the FMLA. (Compl. P 12) Shortly thereafter, Figueira's supervisor informed her that an Executive Vice President of BET, when informed of Figueira's request for maternity leave, had "expressed concern . . and challenged whether plaintiff's absence should be approved." (Compl. P 13)

 Before plaintiff informed her supervisor that she was pregnant, plaintiff had no adverse disciplinary action in her personnel record. (Compl. P 14) However, after she told her supervisor about her pregnancy, BET's attitude towards her turned critical and negative, and BET personnel made "unsubstantiated charges of misconduct." (Id. PP 14, 15) Based upon these charges, defendant terminated plaintiff's employment on April 28, 1995. (Id. P 15) Plaintiff was replaced by a non-pregnant female sometime in August 1995. (Id. P 17)

 On January 31, 1996, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Compl. P 5) On February 15, 1996 the EEOC issued plaintiff a notice of right to sue, signed by Spencer H. Lewis, District Director of the EEOC, stating that although less than 180 days had expired since plaintiff filed her charge, he had determined that the Commission would be unable to complete its administrative process within 180 days. (Compl. P 6, Ex. A) Plaintiff filed a complaint in this court on May 1, 1996, claiming that she was fired because she was pregnant and expressed a wish to take maternity leave.

 BET now moves to dismiss. BET claims that plaintiff's Title VII claim is barred by the applicable statute of limitations, or in the alternative must be remanded to the EEOC. BET argues also that plaintiff's FMLA claim must be dismissed because plaintiff is not an eligible employee under the Act. Defendant argues also that all claims for punitive damages, other than that based on alleged Title VII violations, must be dismissed. Finally, defendant argues that the court should dismiss all pendent state law claims pursuant to 28 U.S.C. § 1367(c)(3).


 A. Title VII -- Statute of Limitations

 BET argues that plaintiff failed to file her Title VII charge with the EEOC within the applicable limitations period. Although the general time limitation for EEOC filings is 180 days "after the alleged unlawful employment practice occurred," 42 U.S.C. § 2000e-5(e)(1), if the discrimination took place in a state or locality with an agency authorized to grant or seek relief from discrimination, and the complainant has filed a charge with that agency, that time limitation is extended to 300 days. Id. However, in a state with its own agency, no charge may be filed with the EEOC "before the expiration of 60 days after proceedings have been commenced under State or local law . . . ." 42 U.S.C. § 2000e-5(c). The EEOC charge may be filed before 60 days from the filing with the state agency only if the state agency has "terminated" its proceedings. Id.

 In Equal Employment Opportunity Commission v. Commercial Office Prods. Co., 486 U.S. 107, 121, 100 L. Ed. 2d 96, 108 S. Ct. 1666 (1988), the Supreme Court stated that when a charge is filed initially with the EEOC in a state with a fair employment practices agency, the EEOC holds the charge in "suspended animation" until either 60 days have elapsed or the state proceeding is terminated. 486 U.S. at 113. Therefore, in state with a fair employment practices agency, to file in a timely fashion with the EEOC -- within 300 days of the alleged discriminatory practice -- a complainant must actually file with the EEOC within 240 days of the alleged discriminatory practice, because the EEOC holds the charge in "suspended animation" for 60 days. See Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980).

 However, if the state terminates its proceedings, a charge filed with the EEOC between 240 and 300 days after the alleged discriminatory practice would be timely filed. The Mohasco Court stated:

If a complainant files later than that [240 days after the discriminatory conduct] (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300 day period.

 Id. Further, in Commercial Office Prods the Court held that a state agency's "waiver" of its exclusive 60-day period pursuant to a Workshare Agreement between the EEOC and the state agency is a "termination" of the state proceeding. Thus, in a state with its own fair employment practices agency, a plaintiff's filing with the EEOC between 240 and 300 days after the discriminatory practice is timely if the state waives its exclusive 60-day period.

 Defendant argues first that plaintiff failed to file with the EEOC within the 300-day outer limit set by § 2000e-5(e)(1). BET argues that the alleged "unlawful employment practice" in this case -- discrimination based on plaintiff's pregnancy -- occurred in January 1995, when BET's conduct towards the plaintiff changed. Defendant argues that plaintiff should have been aware of its negative and critical attitude by March 1995 at the latest. Although "the timeliness of a discrimination claim is to be measured from the date the claimant had notice of the allegedly discriminatory action," charges based on any discriminatory acts or practices which fall within the 300 days preceding the filing of an EEOC charge are timely filed -- even if there were acts that occurred before the 300 days which would give rise to charges that would not be timely filed. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Here, plaintiff filed her charge with the EEOC on January 31, 1996. Accordingly, any charges based on discriminatory employment practices which occurred between April 6, 1995 and January 31, 1996 are timely filed. Plaintiff was fired on April 28, 1995, 278 days before she filed her charge. Further, plaintiff alleges only that it was termination of her employment, and not the negative and critical conduct of BET, which constituted discrimination. Indeed, on her EEOC charge, in the box labelled "Date Discrimination Took Place," plaintiff listed April 27, 1995 as both the earliest and latest date of discrimination. Thus, plaintiff's charge relating to her firing was timely. Because I find that plaintiff filed her charge within 300 days after she was terminated, I need not consider her continuing violation claim or her argument that the period should be tolled based on her illness or the government shut-down which occurred in November and December of 1995.

 Defendant next argues that even if plaintiff filed her charge with the EEOC 278 days after the discriminatory conduct, it was not timely filed pursuant to § 2000e-5(c) because the fair employment practices agency in New York, the Division of Human Rights ("DHR"), did not affirmatively waive its 60-day deferral period. As noted, in Commercial Office Prods. the Supreme Court held that an agency's waiver of its exclusive 60-day deferral period, pursuant to a Workshare Agreement, terminates the state proceeding such that the EEOC may immediately proceed. 486 U.S. at 121. Defendant argues that the DHR did not waive its 60-day period, and therefore plaintiff's charge was in suspended animation for those 60 days and it should not be deemed to have been filed until the expiration of that period -- which would be 338 days after the last discriminatory act and untimely. Defendant's argument fails for two reasons.

 First, there is evidence here that the DHR actually waived its rights. Plaintiff has attached to her opposition papers a copy of a memorandum from the EEOC dated February 5, 1996. The memorandum to plaintiff's charge file from Maria Segarra, a supervisor in the Charge Receipt Technical Information Unit reads as follows: "I called the NYS Division of Human Rights this date to request a waiver of the 60 day deferral period. The waiver was granted as of this date." (Harger Aff., Ex. E) Indeed, defendant was aware that the DHR had waived the 60-day deferral period because on or about June 4, 1996 it received a letter from the DHR, in response to a request pursuant to the Freedom of Information Law, which stated that "the case was a waiver." (Schenkel-Savitt Aff., Ex. D, Tab 1)

 Second, the DHR automatically waived it 60-day deferral period in this case pursuant to a Workshare Agreement with the EEOC. The Second Circuit has recently held that a Workshare Agreement in effect between the DHR and the EEOC contained an automatic and self-executing waiver of the DHR's exclusive 60 day period permitting the EEOC to proceed immediately to process a ...

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