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CABLE v. NEW YORK STATE THRUWAY AUTH.

May 18, 1998

MARYANN LABELL CABLE, Plaintiff,
v.
THE NEW YORK STATE THRUWAY AUTHORITY, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM, DECISION & ORDER

 Defendant in this discrimination action brought under federal and state law moves for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c).

 I. Background

 A. Facts

 Plaintiff Maryann Labelle Cable began working for defendant New York State Thruway Authority ("defendant" or "the Thruway Authority") in February of 1987 as a part-time cleaner. In 1989, she worked in Amsterdam, New York on a maintenance crew as the only woman on a crew of 27 workers. The crew was supervised by Timothy Gilbert. Gilbert openly disapproved of having a woman on the crew and made disparaging remarks about women in general and plaintiff in particular. Plaintiff did not complain to the Thruway Authority at this time, because she was afraid she would lose her job.

 At an unspecified date, plaintiff was transferred to the Albany Division Highway of the Thruway Authority ("Division Highway") and became a full time Construction Equipment Operator Light. She then worked in the Division Highway without major discriminatory incidents for a period of time.

 This unspecified period without major incident seems to have lasted into 1994. In March of 1994, plaintiff suffered a back injury while on the job and was out of work until November of 1994. While plaintiff was out of work, Gilbert again became her direct supervisor, having transferred to Albany in June of 1994. Once he arrived, and while plaintiff was still out of work, Gilbert refused to prepare certain paperwork to assist plaintiff in maintaining disability benefits. This was paperwork plaintiff's previous supervisor had done, and paperwork Gilbert did for male crew members.

 When she returned to work in November of 1994, plaintiff was not given the opportunity to perform "light duty" assignments, even though other employees were given such assignments. Plaintiff concedes, however that she did not request a light duty position. Plaintiff also faced, upon her return to work, more disparaging remarks from Gilbert based upon her sex and disability. Gilbert also refused to provide plaintiff with the same benefits he gave to male members of the crew. When plaintiff sought a transfer, Gilbert refused the request.

 Plaintiff concedes that she still did not complain to directly to the Thruway Authority, primarily because Ellen Rogers, the person she was to contact, was used by Gilbert as his personal secretary. Rogers was uncooperative and obstructive during plaintiff's attempts to resolve her problems with Gilbert, as were other individuals in the Thruway Department's personnel office. Her union also was unresponsive to her complaints throughout this period.

 In June of 1996, over the objection of her union, plaintiff filed a formal grievance of sex discrimination with the Thruway Authority against Gilbert. The Thruway Authority, through the personnel office, conducted an "in-house" investigation. In July of 1996, the Thruway Authority made a finding that plaintiff had not suffered sex discrimination. During the investigation, Gilbert discussed the matter with other employees and members of the personnel office and intimidated employees under his supervision. Though the Thruway Authority found no discrimination, it did determine that Gilbert's behavior was unprofessional and ordered him to apologize to plaintiff. The apology never came. In the meantime, Gilbert's behavior worsened.

 Upon the advice of her doctors, plaintiff requested, in the spring and early summer of 1996, a "reasonable accommodation" that she be allowed to refrain from repetitive lifting of objects over forty pounds. Her job did not require such lifting, but plaintiff's doctors told her that her back would heal faster with such a restriction. When she formally made the request on July 16, 1996, she was told by the Thruway Authority to have the restriction lifted or to go home. She was sent home that day. Thereafter, the Thruway Authority controverted plaintiff's Workers' Compensation claims, did not allow her to receive disability payments and investigated her time records.

 In September of 1996, plaintiff advised the Thruway Authority she was ready, willing and able to work. Nonetheless, she was passed over for openings at other positions in Syracuse and Albany, and was forced to submit to multiple medical examinations. She eventually was allowed to return to work on November 12, 1996 and was not required to perform lifting over forty pounds.

 Gilbert's discriminatory conduct continued and worsened, however, and plaintiff began to be ostracized by her co-workers. She complained to the Thruway Authority and the Union to no avail. Moreover, the Thruway Authority took certain adverse actions against her with respect to her accrued benefits and time. In December of 1996, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). She was then further ostracized and criticized.

 In January of 1997, plaintiff was ordered to undergo additional doctors' examinations and was found to be unfit for work. In March of 1997, she requested a leave of absence to escape what she felt was a hostile work environment. She has requested that the Thruway Authority investigate her allegations of discrimination and retaliation, but no action has been taken; plaintiff remains out of work.

 B. Procedural History

 Plaintiff filed her EEOC charge on December 20, 1996. The New York State Division of Human Rights ("DHR") received the charge on the same date based on a deferral from the EEOC. Plaintiff received right-to-sue letters on June 12, 1997. She filed the present Complaint on September 11, 1997, but did not serve it. She filed and served an Amended Complaint on October 27, 1997.

 The Amended Complaint contains eight claims: (1) sex discrimination under the New York Human Rights Law ("HRL"), Executive Law § 290, et seq. ; (2) retaliation with respect to sex discrimination under the HRL; (3) sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. ; (4) retaliation with respect to sex discrimination under Title VII; (5) disability discrimination under the HRL; (6) retaliation with respect to disability discrimination under the HRL; (7) disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. ; and (8) retaliation with respect to disability discrimination under the ADA.

 The Thruway Authority now moves for judgment on the pleadings on several grounds. The Thruway Authority argues: (1) plaintiff's allegations of discriminatory conduct prior to February 24, 1996 are time-barred as to her federal claims, and those arising before December 20, 1993 are time-barred as to her HRL claims; (2) the Court is without jurisdiction to hear those allegations in the Amended Complaint that plaintiff failed to include in her EEOC charge; and (3) plaintiff is not entitled to punitive damages under Title VII, the ADA or the HRL.

 II. Discussion

 A. Standard for Judgment on the ...


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