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GRAY v. SHEARSON LEHMAN BROS.

December 5, 1996

EDDIE GRAY, Plaintiff, against SHEARSON LEHMAN BROTHERS, INC., ROLFE WETJEN, JOHN CIENKI and ROBERT UTTER, Defendants.


The opinion of the court was delivered by: MUKASEY

OPINION AND ORDER

 MICHAEL B. MUKASEY, U.S.D.J.

 Eddie Gray sues Shearson Lehman Brothers, Inc., and Rolfe Wetjen, John Cienki and Robert Utter "the individual defendants", for employment discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et. seq, New York Executive Law § 296(1)(a), and New York City Human Rights Law § 8-107(1)(a). Plaintiff also sues for unlawful termination in violation of what is referred to as New York's whistleblower statute. N.Y. Lab. Law § 740 (McKinney 1988). Defendants move to dismiss portions of the Title VII claims against Shearson as time-barred, and the Title VII claims against the individual defendants for failure to state a claim for relief. Defendants move also to dismiss plaintiff's claims under the Whistleblower's statute and the New York City Human Rights Law in their entirety. For the reasons stated below, defendants' motions are granted.

 I.

 The following facts are taken from plaintiff's amended complaint and are presumed true for purposes of this motion: Eddie Gray is a 51-year-old black man and was employed by Shearson as the Assistant Vice President in charge of Fulfillment Services. (Compl. P 1, 3) Wetjen is white and was the Senior Vice President at Shearson responsible for transfers. (Id. P 3) Cienki, also white, was a Vice President at Shearson and plaintiff's supervisor in 1991. (Id. P 4) Utter, also white, was a Vice President at Shearson and plaintiff's supervisor in 1992. It is not clear from the complaint whether Shearson is a New York corporation; however, plaintiff alleges that Shearson employed more than 15 employees and was engaged in industry affecting commerce. (Id. P 2)

 Plaintiff alleges three discriminatory acts. First, plaintiff claims that sometime in 1987, Wetjen told him that his position at that time did not require a manager at the level of Vice President. However, plaintiff states that he was later replaced by two different managers who had the title and salary of a full Vice President. (Compl. Count One P 5) Second, plaintiff claims that in 1989 he was promoted to Assistant Vice President without receiving the customary and commensurate raise. (Id. P 6) Finally, plaintiff claims that he was fired in 1992 for reporting an illegal kick-back scheme involving a temporary personnel services contractor. Plaintiff states that he told Wetjen that he had received a proposal about the scheme, and that Wetjen told him to hold a meeting and accept the money under the supervision of Utter, then head of Security for Shearson, and to do nothing further. It is unclear from the complaint whether plaintiff participated in the scheme as directed or not. However, the scheme eventually was uncovered and the contractor prosecuted for violation of federal racketeering laws. Utter lost his job as head of Security and Wetjen assigned him to supervise plaintiff. Plaintiff was fired on or about June 30, 1992. (Compl. Count 4 PP 2-8)

 Plaintiff filed a charge with the New York State Division of Human Rights ("DHR") on September 15, 1992. (Leblang Aff., Ex. B; Pl. Mem., Ex. C) Also, plaintiff states that he filed a charge with the Equal Employment Opportunity Commission ("EEOC") and that both federal and state agencies have issued notices of right to sue. ( Compl. Count 1 P 9) Plaintiff filed suit on March 8, 1996.

 II.

 Defendants move first to dismiss the plaintiff's 1987 and 1989 Title VII claims as time-barred because plaintiff failed to file a charge within 240 days of the alleged discriminatory acts. 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) (1994). However, if the discrimination took place in a state 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. 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). Therefore, in a 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 state agency or the EEOC within 240 days of the alleged discriminatory practice. See Equal Employment Opportunity Commission v. Commercial Office Prods. Co., 486 U.S. 107, 121, 100 L. Ed. 2d 96, 108 S. Ct. 1666 (1988) (holding that when a charge is filed 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); see also Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). *fn1"

 Plaintiff filed a charge with the DHR on September 15, 1992. Accordingly, only discriminatory acts that occurred in the 240-day period prior to plaintiff's filing -- after January 18, 1992 -- are actionable under Title VII. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Here, the only act which is timely is the termination of plaintiff's employment in June 1992. In the absence of any exception to the filing requirement, plaintiff's claims that he was not promoted in 1987 and did not receive a raise in 1989 are barred and must be dismissed. Id. at 713.

 To avoid dismissal, plaintiff argues that the 1987 and 1989 acts fall within the "continuing violation" exception to the filing requirement. "The continuing violation exception applies when there is evidence of an ongoing discriminatory policy or practice [or] where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. Under that exception, if a plaintiff files a charge that is timely as to any incident of discrimination, "all claims of acts of discrimination under that policy will be timely." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994).

 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 ...


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