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CARNEY v. NYS DIV. OF HOUS. & COMMUNITY RENEWAL

September 22, 1997

ELSIE S. CARNEY, Plaintiff, against NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL, JOHN STELLAR, ESQ., and DENNIS HASHER, ESQ., Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Plaintiff Elsie S. Carney, proceeding pro se, brings the instant action against her former employer, the New York Division of Housing and Community Renewal ("DHCR"), John Stellar, Esq., and Dennis Hasher, Esq., alleging that she was terminated from her job due to a disability, suffered retaliation because she filed charges of employment discrimination, was denied due process, and suffered intentional infliction of emotional stress. Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(c), Hasher and Stellar move to dismiss, or in the alternative, for judgment on the pleadings. *fn1" For the reasons that follow, Hasher and Stellar's motion to dismiss is granted, and the Court sua sponte dismisses all claims against DHCR.

 BACKGROUND

 On January 7, 1985, Elsie S. Carney, was hired by DHCR to work in its Overcharge Unit investigating rent overcharge complaints of tenants and to establish the fair market value for those rentals. See Affidavit In Opposition Sworn to March 28, 1996 ("Carney Aff."), P 5. *fn2" Defendants John Stellar, Esq. and Dennis Hasher, Esq. were attorneys employed by DHCR at the time of the events complained of herein. See Carney Aff. PP 15-19. *fn3"

 Carney alleges that beginning in 1987, the New York State Committee on Public Housing began an investigation into improprieties at DHCR regarding favorable treatment of certain tenants. See Carney Aff. P 6. Pursuant to that investigation, Carney states that she was served with a subpoena to appear and give testimony regarding the agency's operations, and that her testimony was not favorable to the agency. Id. P 7. Consequently, Carney states that she, along with various other employees who testified, became the "pariah" of the agency and suffered a series of systematic instances of work-related harassment and retaliatory punishment for testifying against the agency. Id. P 8.

 Between 1987 and 1989, it appears that Carney filed four complaints with NYSDHR alleging retaliatory conduct on the part of DHCR. See Carney Aff., Exh. B. *fn4" In addition, Carney's papers contain two decisions from the New York Workers' Compensation Board which indicate that Carney filed a disability claim alleging disability as of May 19, 1988, due to depression, and that the Board found Carney to have a continuing disability. See Carney Aff., Exh D. By letter dated September 2, 1988, DHCR advised Carney that her services as a provisional Rent Examiner I were terminated effective September 14, 1988, because she had not been selected for permanent appointment. See Complaint, Exh. A. However, by letter dated October 19, 1988, Carney's termination was retracted and she was retroactively appointed to a permanent Rent Examiner I position on leave without pay. Id. Thereafter, by letter dated July 10, 1989, DHCR notified Carney that her employment had been terminated in accordance with Section 73 of the Civil Service Law since she had been continuously absent and unable to perform her duties since May 26, 1988. Id.

 Sometime thereafter, presumably in early 1995, Carney filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Complaint, Exh. B. Neither Carney's complaint, her Memorandum of Law, nor her Affidavit in Opposition provide the date when she filed the charge. However, on April 19, 1995, the EEOC dismissed her charge as untimely and issued her a Right to Sue letter. Id.

 On April 28, 1995, Carney filed the instant action with the Pro Se Office, which was then filed with the Court on August 8, 1995. Construed liberally with her Affidavit in Opposition and Memorandum of Law, as the Court must, the Court reads Carney's complaint to assert claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b, the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, and pendent state law claims of intentional infliction of emotional distress and abuse of process.

 Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(c), Hasher and Stellar move to dismiss, or in the alternative, for judgment on the pleadings, arguing that (1) officers of New York State Agencies sued in their official capacities are immune from suit in federal court under the Eleventh Amendment; (2) Stellar and Hasher have prosecutorial immunity; (3) the claims against Stellar and Hasher should be dismissed because they are not Carney's employer; (4) the action is barred by statute of limitations; and (5) defendants have been released from the allegations set forth by Carney.

 DISCUSSION

 Pursuant to Federal Rule of Civil Procedure 12, pleadings are not subject to dismissal unless, as here, it appears to a certainty that a party cannot possibly be entitled to relief under any set of facts which could be proven in support of a claim. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Harsco Corp. v. Segui, 91 F.3d 337, 341 (2d Cir. 1996).

 Title VII and the ADA require that charges be filed with the EEOC within 180 days after the last alleged act of discrimination has occurred, unless a plaintiff has initially instituted proceedings with a State or local agency that has the authority to grant or seek relief from such discriminatory practice. See Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citing Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992)) (a plaintiff's failure to file a timely charge of discrimination with the EEOC renders that claim time-barred). In the latter case, the plaintiff must file a complaint with the EEOC within 300 days after the alleged discrimination occurred or ...


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