the three incidents were related. Plaintiff merely argues that "the discharge was the last in a series of racially discriminatory acts against the Plaintiff" and "for years, the Defendant corporation and individuals had subjected the Plaintiff to disparate treatment based on his race." (Pl. Mem. at 4) Specific, unrelated instances of discrimination, even similar ones, that are not the result of a discriminatory policy "do not amount to a continuing violation." Lambert, 10 F.3d at 53.
Plaintiff argues also that Title VII's filing requirements begin to run when the employee knows or should know of the alleged discriminatory act, and that he did not realize until January of 1992 that race was the motivating factor behind the 1987 and 1989 incidents. (Pl. Mem. at 5) In Miller v. International Telephone and Telegraph Corp., a case involving alleged violations of the Age Discrimination in Employment Act ("ADEA"), the Second Circuit held that the filing time periods "commence upon the employer's commission of the discriminatory act." 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985). Those periods are not "tolled or delayed pending the employee's realization that the conduct was discriminatory unless the employee was actively misled [or] was prevented in some extraordinary way from exercising his rights." Id. The Court noted that such an extraordinary circumstance might exist "if the employee could show that it would have been impossible for a reasonably prudent person to learn that his discharge was discriminatory." Id.; see also Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 49 (2d Cir. 1985). Plaintiff does not claim that he was misled or prevented in any way from exercising his rights. Rather, plaintiff claims that defendants lied to him and that he could not realize defendant's discriminatory motivation until 1992 when he was replaced by white officers who had received salary increases. However, plaintiff's lack of awareness of defendants intent does not toll the filing period, and the fact that defendants may have provided other reasons for the employment actions does not justify an inference that plaintiff was misled. See Shapiro v. William Douglas McAdams, Inc., 1995 U.S. Dist. LEXIS 10196, No. 94 CV 4424, 1995 WL 313120, at *3 (E.D.N.Y. May 16, 1995). Plaintiff does not claim any extraordinary circumstances which would justify tolling the filing deadline. Accordingly, claims based on discriminatory acts which occurred before January 18, 1992 are barred and dismissed.
Defendant moves next to dismiss the Title VII claims against the individual defendants. In Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." However, plaintiff claims that the individual defendants may be sued in their official capacity. Plaintiff relies upon Coraggio v. Time Inc. Magazine Co., 1995 U.S. Dist. LEXIS 5399, No. 94 Civ. 5429, 1995 WL 242047 (S.D.N.Y. April 26, 1995), a pre-Tomka decision, in which I held that although persons could not be liable in their individual capacities under Title VII, they could nevertheless be named as defendants in their representative or official capacities. Id. at *8.
Plaintiff correctly notes that the Second Circuit has not yet ruled on whether individuals can be named in Title VII suits in their official capacities. In Cook v. Arrowsmith Shelburne, Inc., the Second Circuit stated that: "The issue of whether . . . an individual may be made a party defendant solely in the person's corporate capacity as an agent of the employer -- not subject to individual liability but a party for the purpose of discovery -- . . . was neither argued to, nor addressed to the Tomka court." 69 F.3d 1235, 1241 n.2 (2d Cir. 1995). The issue was not argued to the Cook Court, which therefore refused to address it.
In Coraggio, I followed the reasoning of the Fifth, Ninth and Eleventh Circuits to hold that persons cannot be liable in their individual capacities under Title VII. However, I took up, perhaps too literally, the suggestion in an Eleventh Circuit case that "the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming supervisory employees as agents of the employer, or by naming the employer directly." 1995 U.S. Dist. LEXIS 5399, 1995 WL 242047, at *8 (quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)). Thus, I found it was permissible to name supervisory employees as defendants and to treat them as such for all purposes except liability. I rejected the view expressed by one of my colleagues that there was nothing to be gained other than "consumption of time and creation of bitterness by inclusion of the individual as a defendant," Bramesco v. Drug Computer Consultants, 834 F. Supp. 120, 123 (S.D.N.Y. 1993), and pointed out that there were positive benefits to be achieved by permitting individuals to be named as parties: discovery could be obtained more easily from a party and individual responsibility or vindication could be publicly fixed. 1995 U.S. Dist. LEXIS 5399, 1995 WL 242047, at *8.
Two Courts in this District have agreed with the reasoning in Coraggio. See Abdullajeva v. Club Quarters, Inc., 1996 U.S. Dist. LEXIS 12805, No. 96 Civ. 0383, 1996 WL 497029 (S.D.N.Y. Sept. 3, 1996) (citing Coraggio); Kounitz v. Slaatten, 901 F. Supp. 650, 656 (S.D.N.Y. 1995) ("The Court finds persuasive the reasoning in Coraggio v. Time Inc.. . . ."). In addition, at least two Courts have applied the same reasoning to hold persons subject to suit in their official capacities under the ADEA. See Wray v. Edward Blank Assoc., Inc., 924 F. Supp. 498 (S.D.N.Y. 1996); Leykis v. NYP Holdings, Inc., 899 F. Supp. 986 (E.D.N.Y. 1995).
However, at least four Courts have disagreed with the reasoning in Coraggio. See Bonner v. Guccione, 916 F. Supp. 271 (S.D.N.Y. 1996); Davis v. City University of New York, 1996 U.S. Dist. LEXIS 6345, No. 94 Civ. 7277, 1996 WL 243256 (S.D.N.Y. May 9, 1996); Bakal v. Ambassador Constr., 1995 U.S. Dist. LEXIS 10542, No. 94 Civ. 584, 1995 WL 447784 (S.D.N.Y. July 28, 1995); Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352 (S.D.N.Y. 1995). In Bakal, Judge Martin noted that "official capacity" suits have "traditionally been permitted to avoid Eleventh Amendment and sovereign immunity problems that might arise if a plaintiff were to sue a government entity directly." Judge Martin concluded that because employers are subject to suit under Title VII, "there is no need for such 'official capacity' litigation." 1995 U.S. Dist. LEXIS 10542, 1995 WL 447784, at *4. In addition, Judge Martin noted that the function of courts is "to provide a remedy against those that Congress has determined should be held liable for the plaintiff's damages, not to affix moral blame." Id. Judge Martin continued: "If Congress has made a determination that individual employees should not be personally liable for acts of discrimination, it is not for the courts to second guess that judgment and provide some type of moral sanction against those who engaged in prohibited conduct." Id. Finally, Judge Martin correctly noted that a defendant bears financial and emotional expenses in civil litigation and a court should force a person to bear those costs only if "the end of that litigation may result in an award of damages against that person." Id.
Upon reflection, I find Judge Martin's reasoning in Bakal far more compelling than my own in Coraggio. Whatever may have been suggested by the reference in Busby to individual capacity suits, the statute itself does not provide for such suits, and they are not necessary to impose liability on the employer; the statute itself does that. No matter what benefits may accrue by permitting official capacity suits, there is nothing to show that Congress intended to permit suits against individuals in their official capacity. See Bonner, 916 F. Supp. at 279 (noting that Congress provided the remedy it thought appropriate and in the absence of contrary Congressional intent the Tomka decision militates against official capacity suits under Title VII). Accordingly, defendant's motion to dismiss all Title VII claims against the individual defendants is granted.
Defendants move next to dismiss as time-barred plaintiff's claim under New York's whistleblower statute. That statute prohibits retaliation by an employer against an employee because the employee discloses or threatens a "policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety." N.Y. Lab. L. § 740(2)(a) (McKinney 1988). Here, plaintiff argues that he was fired for reporting a kick-back scheme which violated federal racketeering laws. Whether plaintiff states a claim for relief under the whistleblower statute or not, plaintiff's claim is time-barred. The statute states that an employee "who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action . . . within one year after the alleged retaliatory personnel action was taken." N.Y. Lab. L. § 740(4). Plaintiff was fired in 1992. He did not sue until March, 1996. Accordingly, plaintiff's claim under the statute is barred.
Plaintiff argues that the limitations period under the whistleblower statute should be tolled while his administrative action in the DHR and EEOC was pending. Plaintiff relies upon Brown v. Bronx Cross County Medical Group, 834 F. Supp. 105 (S.D.N.Y. 1993), in which the Court held the statute of limitations for a state law emotional distress claim was tolled during the period a charge was pending in the EEOC. However, in Lamb v. Citibank, N.A., 1994 U.S. Dist. LEXIS 12903, No. 93 Civ. 2358, 1994 WL 497275, at *8 (S.D.N.Y. Sept. 12, 1994), I held that the statute of limitations for a state law claim of intentional infliction of emotional distress was not tolled while the plaintiff's Title VII claim was pending in the EEOC. See also Hall v. USAIR, Inc., 1996 U.S. Dist. LEXIS 6055, No. 95 Civ. 3944, 1996 WL 228458, at *3 (E.D.N.Y. April 29, 1996) (Weinstein, J.) (finding Lamb persuasive). The facts here are even stronger than those in Lamb. In Lamb, the state law claim was related to the plaintiff's claim of discrimination. Here, plaintiff's claim under the whistleblower statute is based upon a different theory and different facts from his discrimination claims. See Brown v. Vail-Ballou Press Inc., 188 A.D.2d 972, 973, 592 N.Y.S.2d 78, 79 (3d Dep't 1992). Therefore, plaintiff's claim under the whistleblower statute is dismissed as time-barred.
Finally, defendants move to dismiss plaintiffs claim under the New York City Human Rights Law. Plaintiff has not opposed this motion. The New York city Administrative Code, Title 8, Section 106(1)(a) prohibits discriminatory employment practices. N.Y.C. Admin. Code § 8-107(1)(a). Section 8-502 permits a private action by persons aggrieved by unlawful discriminatory practices and requires that "prior to commencing a civil action . . . the plaintiff shall serve a copy of the complaint upon the city commission on human rights and the corporation counsel." N.Y.C. Admin. Code § 8-502(c). Plaintiff has presented no evidence that he complied with this statutory prerequisite to suit. Accordingly, plaintiff's claim under the New York City Human Rights Law is dismissed. See Paladines v. Poulos, 1994 U.S. Dist. LEXIS 10170, No. 93 Civ. 9031, 1994 WL 389022, at *3 (S.D.N.Y. July 22, 1994).
* * *
For the reasons stated above, defendants' motion to dismiss portions of plaintiff's Title VII claim as time-barred is granted; defendants' motion to dismiss all Title VII claims against the individual defendants is granted; defendants' motions to dismiss plaintiff's claims under New York's whistleblower statute and New York City Human Rights Law is granted.
Michael B. Mukasey
U.S. District Judge
Dated: New York, New York
December 5, 1996