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BAWA v. BROOKHAVEN NAT'L LAB.

July 3, 1997

BHUPINDER S. BAWA, Plaintiff, against BROOKHAVEN NATIONAL LABORATORY, ASSOCIATED UNIVERSITIES, INC., Defendant.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 I. Introduction

 Plaintiff Bhupinder S. Bawa ("Bawa"), an employee of Brookhaven National Laboratory, Associated Universities, Inc. ("BNL"), commenced an action with the United States Equal Employment Opportunity Commission ("EEOC"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.. ("Title VII") and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq.. ("NYHRL") for alleged violations of his civil rights. Plaintiff claims in his charge of discrimination against BNL with the EEOC that he has been denied training and transfer or promotion opportunities with respect to "approximately 100" positions. Defendant BNL now moves the Court for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 As demonstrated below, the Court partially grants BNL's motion on the following grounds: (1) Bawa's pre-May 12, 1992 Title VII transfer and promotion claims are time barred under the applicable 300-day statute of limitations; (2) the Court lacks jurisdiction over both Bawa's post-March 8, 1993 Title VII transfer and promotion claims as well as the Title VII harassment claim because he never filed a charge of discrimination with the EEOC as to any of those claims. The Court denies BNL's motion as to the remaining claims arising between May 12, 1992 and March 8, 1993 because the claims are not barred by the doctrine of res judicata.

 II. Background

 The undisputed facts can be summarized as follows. On March 8, 1993, Bawa filed a charge of discrimination against BNL with the EEOC. The EEOC referred Bawa's March 1993 charge to the New York State Division of Human Rights ("NYSDHR") for investigation. The NYSDHR issued a "Determination and Order After Investigation" on July 14, 1995 finding that there was "no probable cause" to believe that BNL discriminated against Bawa. Bawa chose not to appeal the NYSDHR's determination, but rather to initiate the present lawsuit in which Bawa claims that since 1986 he has been denied promotions or transfers with respect to "approximately seventy-six positions" due to his race, color, religion and national origin. Additionally, Bawa alleges that he was subjected to workplace harassment.

 III. Discussion

 According to Rule 12(c) of the Federal Rules of Civil Procedure, "any party may move for judgment on the pleadings" after the pleadings are closed "but within such time as not to delay the trial." Fed. R. Civ. P. 12(c). However, if on a motion for judgment on the pleadings, matters outside of the pleadings are "presented to and not excluded by the Court," the motion may be treated as one for summary judgment. Id. Upon motion for judgment on the pleadings, the Court has discretion to consider materials outside of the pleadings, upon notice to all parties, in which case the Rule 12(c) motion is treated as a motion for summary judgment pursuant to Rule 56 and accordingly, this Court will treat BNL's motion as one for summary judgment. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988).

 A party seeking summary judgment must demonstrate to the Court that "there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). The non-moving party may defeat the summary judgment motion by producing sufficient evidence to establish a genuine issue of material fact for trial Celotex at 322. In ruling on a motion for summary judgment, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Donohue at 57. However, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Incidents Prior to May 12, 1992

 In order to maintain a suit under Title VII, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the allegedly discriminatory act. Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Therefore, incidents involving a failure to promote which occurred more than 300 days before the administrative charge was filed with the EEOC are time-barred. Samuel v. Merrill Lynch Pierce Fenner & Smith, 771 F. Supp. 47, 48 (S.D.N.Y. 1991).

 In the case at bar, the majority of Bawa's transfer and promotion claims, as illustrated by the chart Bawa prepared in connection with this action, occurred more than 300 days before Bawa filed his EEOC charge. Bawa filed his EEOC charge on March 8, 1993. Although plaintiff argues that there was a continuing violation due to the defendant's alleged on-going discriminatory practice, "the mere continuation of a discriminatory act's effects, when the act itself occurred prior to the pertinent limitations period, is not sufficient to support recovery under Title VII." Ass'n Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981). In fact, the Second Circuit has consistently looked unfavorably on the continuing violation arguments. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Butts v. City of New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1404 (2d Cir. 1993); Thanning v. Gulotta, 898 F. Supp. 134, 140 (E.D.N.Y. 1995); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). The continuing violation exception only applies to cases involving specific discriminatory policies or mechanisms, such as seniority lists or employment tests. Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993). As the Second Circuit pointed out, "multiple incidents of discrimination, even similar ones, that aren't the result of discriminatory policy or mechanism, do not amount to a continuing violation." Id. Past incidents of a failure to promote alone such as Bawa has alleged, neither constitutes a continuing violation nor demonstrates a specific ongoing policy or mechanism of discrimination. Blesdell, 708 F. Supp. at 1415.

 Additionally, a continuing violation must be clearly asserted in both the EEOC filing and in the complaint. Miller v. ITT, 755 F.2d 20, 25 (2d Cir. 1985), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148, reh'g denied, 474 U.S. 1015, 88 L. Ed. 2d 479, 106 S. Ct. 552 (1985); Cook v. Pan Am. World Airlines, 771 F.2d 635, 646 (2d Cir. 1985), cert. denied, 474 U.S. 1109, 88 L. Ed. 2d 929, 106 S. Ct. 895 (1986). Bawa did not clearly state a continuing violation by marking the "Continuing Action" box on the Charge of Discrimination form and furthermore, the Complaint does not even assert a continuing violation. Accordingly, the Court rejects Bawa's ...


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