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CHINN v. CITY UNIV. OF NEW YORK SCH. OF LAW AT QUE

May 21, 1997

HENRY C. CHINN, JR., Plaintiff, against CITY UNIVERSITY OF NEW YORK SCHOOL OF LAW AT QUEENS COLLEGE AND DEAN KRISTEN BOOTH GLEN, Defendants.


The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 Plaintiff Henry C. Chinn, Jr. ("Chinn") commenced this employment discrimination action against the City University of New York at Queens College School of Law ("CUNY") and Dean Kristen Booth Glen ("Dean Glen"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), and New York state law. Compl. P 1. Defendants have moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted. Defendants' motion is granted in part and denied in part.

 BACKGROUND

 In December 1995, Dean Glen advised plaintiff that he was being reassigned to serve as Associate Director of Financial Aid in the Financial Aid Office. Id. P 21. Chinn expressed concern that his experience did not suit the new assignment, and requested time to consider it. Id. P 22. Subsequently, a union representative informed plaintiff that the transfer was valid under the collective bargaining agreement, and that he should accept. Id. P 23. Chinn was "involuntarily reassigned" to the Financial Aid Office in January 1996. Id. P 24. Chinn alleges, upon information and belief, that Dean Glen's stated reason for the reassignment was to foster racial diversity. Id. P 25. However, while CUNY's new diversity plan mandated that "no office could have all white or all black employees," upon information and belief, Chinn alleges that the Financial Aid Department had only black employees at the time of his reassignment. Id. PP 25-26. According to the complaint, a white male was hired under a new title and at a higher salary to perform Chinn's duties in the Career Planning Department. Id. P 27.

 In February 1996, defendant Dean Glen informed Chinn that he would be terminated as of June 30, 1996. Id. PP 28-29. Upon information and belief, Chinn contends that he was the only Financial Aid Office employee to be terminated due to alleged budget cuts, and that Dean Glen was aware of impending budget constraints in the Financial Aid Office when she transferred him there. Id. PP 30, 32. Chinn alleges that his reassignment and ultimate termination were motivated by "racial animus" and retaliation for his activism against CUNY's treatment of minorities. Id. P 31.

 On March 15, 1996, Chinn filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging only that his involuntary reassignment and termination were the result of racial discrimination. Dell Aff., Ex. A; Smith Aff., Ex. A. Plaintiff did not mention retaliatory motive on the charge form or in his accompanying affidavit, did not inform the EEOC of any of his oppositional activities directed at CUNY's treatment of minorities, and did not check the box identifying "retaliation" as the "cause of discrimination." Id.

 Plaintiff's complaint is inconsistent with regard to date of receipt of the EEOC's right to sue letter. One paragraph alleges receipt on May 16, 1996, while a later paragraph states that May 16, 1996 was the date of issuance. Compare Compl. P 2 with P 35. Chinn's counsel avers that Chinn received the EEOC's letter several days after May 16, 1996, but that his client cannot recall the exact date. Smith Aff. P 5. The EEOC's right to sue letter indicated May 16, 1996 as "Date Mailed," and informed Chinn that he "must sue WITHIN 90 DAYS from [his] receipt of this Notice." Id., Ex. C (emphasis in original).

 On August 16, 1996, Chinn commenced this action. Plaintiff's first cause of action alleges that his termination by defendants was in violation of § 1981 and Title VII. Compl. P 36. The second cause of action alleges that defendant Dean Glen's actions were retaliatory, in violation of § 2000e-2(a)(1) of Title VII. Id. P 38. The third cause of action is a Title VII claim against CUNY for failing to take corrective action of Dean Glen's discriminatory conduct. Id. PP 40-41. For a fourth cause of action, plaintiff alleges that Dean Glen, in her official capacity, discriminated against him on the basis of race, in violation of § 2000e-2(a)(1) of Title VII. Id. P 43. The fifth claim alleges that Dean Glen, acting individually and in her official capacity, mistreated, harassed, intimidated and retaliated against plaintiff because of racial animus, in violation of 42 U.S.C. § 1981. Id. P 45. The sixth claim charges CUNY with retaliatory discharge, in violation of § 2000e-3(a) of Title VII. Id. P 47. The seventh cause of action alleges that defendants' discriminatory actions violated New York's anti-discrimination law. Id. P 49. Finally, the eighth claim charges defendants with intentional or, in the alternative, negligent infliction of emotional distress. Id. P 51. Plaintiff seeks a declaratory judgment, reinstatement, back pay, compensatory and punitive damages, and attorneys' fees. Id. at 11-12.

 DISCUSSION

 During oral argument before the Court on May 7, 1997, plaintiff's counsel acknowledged that several of the claims in his complaint should be dismissed, and defendants' counsel conceded that several of their grounds for dismissal are not warranted.

 I. TITLE VII

 A. Ninety-Day Time Limit

 Defendants conceded that Chinn's Title VII claims are not time-barred. In light of the evidence of the mailing date and the absence of an exact date of receipt, the Court is satisfied that Chinn commenced the Title VII claims in a timely fashion, less than ninety days after receiving the EEOC's notification.

 B. Title VII Claims against Defendant Dean Glen

 Plaintiff conceded that Title VII claims against defendant Dean Glen (contained in the first, second and fourth causes of action) must be dismissed based on the Second Circuit's decision in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). Tomka held that "agents," such as supervisory personnel, are not "employers" for purposes of Title VII liability. 66 F.3d at 1314-15; see 42 U.S.C. § 2000e(b). The Second Circuit, acknowledging a split in the circuits, concluded that Title VII's carefully calibrated remedial scheme does not impose individual liability on agents of employers, but ...


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