The opinion of the court was delivered by: SIRAGUSA
Plaintiff Mary Hudson filed a complaint with the Equal Employment Opportunity Commission (EEOC) on April 21, 1995 alleging racial discrimination by defendant. Complaint [document # 1], at P8. 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 alleges generally that this conduct began when she was first hired and continued throughout her tenure. Complaint [document # 1], PP 11 & 15. She makes specific allegations regarding her transfer to the Lexington Avenue location in 1993, Complaint [document # 1], P 19, and her transfer to the Records Department in September 1995, Supplemental Complaint [document # 4], PP 25 - 31.
The 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.
SUMMARY JUDGMENT STANDARD
The law on summary judgment is well settled. Summary Judgement 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).
Plaintiff alleges, in her Memorandum of Law, at p. 4, that the "discriminatory practices go back to 1975, and continued [sic.] to this day." 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 the 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 long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994). However, a continuing violation "may not be based on the continuing effects of an earlier discrimination...." Blesedell, 708 F. Supp. at 1414 (citations omitted).
Plaintiff argues in her Memorandum of Law, that as long as she can prove continuing violations, the continuing-violation exception applies, citing to Annis v. County of Westchester, 136 F.3d 239 (2d Cir., 1998). In Annis, the Second Circuit quoted from Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir., 1997):
The continuing violation and its continuing-violation exception "extends the limitations period for all claims of discriminatory acts committed under [an ongoing policy of discrimination] even if those acts, standing ...