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July 16, 1997

NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES; WILLIAM ATCHET, Chief Motor Vehicle Investigator and Director; KENNETH DWYER, Chief Motor Vehicle Investigator; MELVIN G. MILNER, Senior Motor Vehicle Investigator; DWIGHT SCHWABROW, Supervising Motor Vehicle Investigator; DAVID HARRIS; Motor Vehicle Investigator; and GEORGE HASS, Motor Vehicle Investigator, Defendants.

The opinion of the court was delivered by: MCAVOY

 Plaintiff Sherry Petrosky brings this action alleging discrimination in the workplace on the basis of sex and disability. Plaintiff asserts federal causes of action for violations of her rights under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Plaintiff also asserts state law causes of action under the New York State Human Rights Law, Executive Law § 290 et seq.


 A. Facts

 Plaintiff began working for the New York State Department of Motor Vehicles ("DMV") in August of 1981 as a Motor Vehicle Investigator. (Pl. Compl. P 21). In her Complaint, she alleges that from the time she began working at the DMV until her last day at the work site on October 20, 1994, she was continuously and repeatedly subjected to sexual discrimination and sexual harassment by defendants. (Id. P 24). The harassment of which defendants are accused consisted of, inter alia : (a) unwelcome sexual advances; (b) graphic sexual discussions directed to plaintiff or conducted near or at her desk; (c) repeated offensive, lewd, and vulgar comments, and sexually explicit or suggestive cards and items being left on plaintiff's desk; (d) handcuffing plaintiff to a car and leaving her there while supervisors from New York City were visiting the garage; (e) pretending that plaintiff had been murdered at her desk by stuffing her uniform, placing it in her chair with a letter opener stuck in the back and draping police "crime scene" tape around her desk; (f) hiding her state-issued car, clothes, and/or uniform; (g) assigning plaintiff to work with male employees who defendants knew, or should have known, mistreated, threatened, and/or harassed plaintiff based upon her gender; (h) posting a photograph of plaintiff working under a car with only her lower half visible and a caption reading "OK guys I'm ready!"; (i) repeated derogatory statements, verbal assaults, and posting of items ridiculing plaintiff because of her gender, including comments that "she's probably knocked up again," "women are inferior," "should be paid less," "are only good for making coffee," and that the plaintiff was a "worthless bitch" who was "taking a job away from a man"; and (j) nude photographs, pictures, and other pornographic items repeatedly displayed, posted, or drawn on plaintiff's desk and in the shared bathroom. (Pl. Compl. P 34a-f). Plaintiff also alleges that during her employment she was never told of any procedure for investigating or resolving complaints of sexual harassment. (Pl. Compl. P 32). Plaintiff also contends that no sexual harassment policy was issued to her, nor was one posted at her work site. (Id. P 33). Moreover, according to plaintiff, defendants either were aware, or should have been aware, of the continuous discriminatory employment practices to which she was subjected. (Pl. Compl. P 27). She asserts that throughout her employment, she complained about the discriminatory conduct to defendants Atchet, Schwabrow, Dwyer and Milner, as well as to defendant DMV's personnel and affirmative action office. ( Id. P 38). When she complained, however, plaintiff was told that she had to expect and accept such conduct in a garage. (Id. P 39). Furthermore, plaintiff alleges that she was told that defendants would find a way to get rid of her if she complained. (Id. P 40).

 With respect to her claims of disability discrimination, plaintiff alleges that defendants ignored her doctors' requests that reasonable accommodations be made for plaintiff's diabetes. (Pl. Compl. P 50). Not only did defendants ignore such requests, plaintiff contends they also forced her to work overtime, reduced the number of days she would work while increasing her workload, refused to allow her to take breaks, and generally made abusive and derogatory comments regarding her disability. (Id. P 49).

 Finally, plaintiff alleges that as a result of defendants' failure to make a reasonable accommodation for her disability, as well as the continuous and pervasive harassment and abuse that she was forced to endure, plaintiff was forced to leave her job and was disabled from work. (Pl. Compl. P 51).

 B. Procedural History

 Plaintiff filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC") on March 20, 1995. (Pl. 7.1 (f) Stmt. P 11). On March 8, 1996, plaintiff received from the EEOC a Notice of Right to sue defendants. (Pl. Complaint P 5). She filed this lawsuit on June 5, 1996.

 On April 18, 1997, defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56, or for dismissal of the complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12 (b)(6). (Def. Notice of Motion). Defendants claim that plaintiff's action is time-barred, and that she does not satisfy the continuing violation exception to the statute of limitations. (Def. Mem. at 3, 5). Defendants also seek dismissal of the Title VII and ADA claims as against the individual defendants, as well as dismissal of the plaintiff's state law claims.


 A. Standard

 Federal Rule of Civil Procedure 12 (b)(6) states that "if, on a motion . . . to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."

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