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May 20, 1998

MORTESS W. JOHNSON, Plaintiff -vs- DELPHI ENERGY and ENGINE MANAGEMENT SYSTEMS, INC., a Division of General Motors, Defendants

The opinion of the court was delivered by: SIRAGUSA


 This matter is on before the Court on a motion by defendant, DELPHI ENERGY and ENGINE MANAGEMENT SYSTEMS, INC., a Division of General Motors, for an Order of summary judgment [document # 19] pursuant to Federal Rules of Civil Procedure 56 and dismissal of the complaint. For the reasons to be stated, defendant's motion is granted.


 Plaintiff Mortess Johnson, an African-American woman qualified for her position as a Senior Clerk, filed a complaint with the Equal Employment Opportunity Commission (EEOC) on April 25, 1995 alleging racial discrimination by defendant. Complaint [document # 1], at P 8; Defendant's Exhibits in Support of Motion, Exhibit B. Her EEOC complaint is part of the record. Defendant's Exhibits in Support of Motion, Exhibit B. In her judicial complaint, filed within ninety days of the "right to sue" letter from the EEOC, plaintiff alleges she was paid lower wages, was not promoted, and was given lower classifications than non-African-American clerical employees. She generally alleges this conduct began when she was first hired and continued throughout her thirty year tenure. Complaint [document # 1], PP11 & 16 - 20. She also complains that she was not provided with the same equipment and systems as non-African-American employees and did not receive training necessary to work on that equipment. Complaint, P21. She also alleges that she was approached about retirement whereas none of the non-African-American secretaries was ever so approached. Complaint, P22. Plaintiff further alleges that she developed tendinitis in both wrists as a result of her work load, but continued to work (she has not made a claim that she was disabled as a result). Complaint, P25.

 Defendant seeks to either have plaintiff's claims dismissed entirely, or at least limited to the period of time encompassed by the applicable statute of limitations for each cause of action under Title VII (42 U.S.C. 2000e et. seq.), 42 U.S.C. § 1981 and New York Executive Law § 296.


 The law on summary judgment is well settled. Summary Judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987)(en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record "if reduced to admissible evidence, would be insufficient to carry the [non-movant's] burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986).

 Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed. R. Civ. P. 56(f). Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986).

 The Court must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).


 Statute of Limitations

 Plaintiff alleges, in her Memorandum of Law, at p. 4, that the discriminatory practices date from 1967 through to her retirement in 1997. She argues that since there is a continuing violation, the statute of limitations does not apply. Defendant, the moving party for summary judgment, argues that the Court should limit the case to the applicable limitations period for the various causes of action. Defendant's Memorandum of Law, at 4. According to defendant's calculation, this period would commence on August 28, 1994 for the Title VII causes of action. Id. at 5. Defendant further argues that the claims under New York Executive Law § 296 and 42 U.S.C. § 1981 are limited to the period beginning June 12, 1992. Defendant asks that the Court grant summary judgment dismissing the time barred allegations of plaintiff's claims for intentional race discrimination and retaliations that occurred prior to these starting points. Id. at 5.

 Claims under 42 U.S.C. § 1981 and New York Executive Law § 296 are subject to New York's three year limitations period for personal injury actions. Tadros v. Coleman, 898 F.2d 10 (2d Cir.), cert. denied, 498 U.S. 869, 112 L. Ed. 2d 149, 111 S. Ct. 186 (1990); N.Y. CPLR 214. The statue of limitations begins to run at "that point in time when the plaintiff knows or has reason to know of the injury which is the basis of [his] action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981). Claims under Title VII are governed by, in this case, a 300 day statute of limitations. 42 U.S.C. § 2000e-5(e)(1).

 Plaintiff asserts that her allegations of a discriminatory policy or mechanism are actionable under the continuing violations doctrine. That doctrine provides that when an employer engages in "a continuous practice and policy of discrimination, 'the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.'" Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985). "To establish a continuing violation, 'a plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period."'" Blesedell v. Mobil Oil Co., 708 F. Supp. 1408 (S.D.N.Y. 1989) (citations omitted). "[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so ...

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