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August 25, 1998

CARLTON SPRINGER, Plaintiff, against PARTNERS IN CARE, Defendant.

The opinion of the court was delivered by: TRAGER


 TRAGER, District Judge:

 Plaintiff, who is pro se, brings this lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ┬ž 2000e et seq., alleging that defendant discriminated against him based upon his gender/sex when defendant terminated plaintiff's employment. Defendant moves, in the alternative, to dismiss plaintiff's complaint or for summary judgment, on the grounds that plaintiff's complaint is barred by the doctrine of laches and additionally, because the Equal Employment Opportunity Commission exceeded its authority in issuing plaintiff a notice of right to sue. *fn1" For the reasons set forth below, defendant's motions are denied.


 Defendant Partners in Care ("Partners") provides home health aide and personal care worker service to elderly and infirm clients. Plaintiff, an African American male, began his employment with Partners on October 21, 1985, as a payroll coordinator. Plaintiff's responsibilities included compiling and recording data for Partners' payroll periods, which end each Friday. Plaintiff was discharged on November 8, 1985, less than three weeks after his employment commenced, for poor performance, after having been warned that his continued untimely and inaccurate work was unacceptable.

 Plaintiff filed an administrative complaint simultaneously with the New York State Division of Human Rights ("DHR") and the Equal Employment Opportunity Commission ("EEOC") on or about November 13, 1985, alleging that Partners terminated his employment because of his sex, race, and color in violation of the New York State Human Rights Law and Title VII of the Civil Rights Act of 1964 ("Title VII"). The complaint alleges several unsolicited encounters with "Anthony," a Caucasian male co-worker of plaintiff's. Plaintiff claims that this co-worker: sent him a note expressing "a personal interest in [plaintiff]"; informed plaintiff that he "wanted [plaintiff]"; "sexually harassed" plaintiff at the copy machine; and "approached [plaintiff] in the men's room and put his arms around [plaintiff] and pinched [him] on the cheek." DHR Complaint, PP 5, 6.

 On September 25, 1986, the DHR issued a Determination and Order After Investigation ("DHR Determination") which found no probable cause that Partners engaged in unlawful discriminatory practice by terminating plaintiff. See DHR Determination at 1. This determination was based on an investigation which revealed that as early as one week into his employment, plaintiff was warned about performance problems, including unacceptable mistakes and delays in completing assignments. See id. The investigation demonstrated that plaintiff's supervisor, Lillian Pabon, advised plaintiff after only one week that she had observed performance problems in connection with the first payroll plaintiff was responsible for processing, for the week ending October 18, 1985. On that occasion, plaintiff had erroneously included certain employees on the payroll who had not worked that week, while failing to process payroll checks for more than twenty home heath aides because he did not record the hours they worked. Immediately after this incident, Pabon spoke with plaintiff and informed him that a mistake of this magnitude was unacceptable and that plaintiff was taking too long to complete his assignments. In response to this reprimand, plaintiff protested that he had been given too many tasks to complete. Pabon advised plaintiff that other staff members were able to handle their assignments and that everyone was expected to do the same amount of work.

 During this meeting, Pabon also informed plaintiff that she had received complaints about plaintiff from three female African American staff members who objected to plaintiff's attempts to socialize with them during work hours and his asking them out on dates. Plaintiff was advised to confine his social activities to non-work time. Plaintiff responded that he was trying to be friendly.

 Also at this meeting, plaintiff told Pabon that Anthony Murphy, a male Caucasian employee who was employed by Partners as a mail clerk, was "approaching" him during working time. Plaintiff also informed Pabon that he had received a note from someone but was not certain who had sent it. Plaintiff does not appear to have indicated to Pabon the nature of this note. *fn2" Pabon assured plaintiff that she would speak with Murphy. That same day, Pabon met with Murphy and warned him not to bother plaintiff. Murphy claimed that he had only been joking.

 Several days later, plaintiff informed Pabon that Murphy was continuing to disturb him. Although plaintiff made general complaints to Pabon that Murphy was "approaching" or "harassing" him, plaintiff did not relate the specific incidents involving Murphy that he described in paragraphs five and six of his complaint to the DHR and the EEOC. Pabon again warned Murphy to "stop playing games." Murphy replied that he had done nothing to plaintiff since he had received Pabon's initial warning.

 Despite warnings about the necessity for improving both the speed and accuracy of his work, plaintiff's performance showed little improvement in the weeks that followed. He continued to take excessive time in completing assignments and his accuracy did not improve. At the end of the next payroll period, which ended on October 25, 1985, Pabon again detected numerous computation errors in plaintiff's work. Following this second incident, Pabon called plaintiff to her office and advised him that he was being terminated effective November 8, 1985, because of "repeated and significant payroll errors and because he could not complete his assignments in a timely manner." Def. Response to DHR, dated January 14, 1986.

 It appears that no further action was taken with respect to plaintiff's administrative complaints between September 25, 1986, the date on which the DHR issued its determination of no probable cause, and October 1, 1996, when the EEOC issued plaintiff a Notice of Right to Sue. Plaintiff claims that he made "occasional telephone calls" to the DHR and the EEOC during that intervening ten year period in order to ascertain the status of his case but that each time he was told that "the matter was under investigation." Pl. Mem. in Opp'n to Def. Mot. for Summ. J. Plaintiff claims that in August, 1996, he got tired of waiting for the investigations to be completed and requested a Right to Sue Letter from the EEOC, which he received on October 1, 1996. See id. On November 25, 1996, plaintiff filed a complaint with this court, alleging that he had been terminated in violation of Title VII. *fn3"


 Partners moves to dismiss plaintiff's complaint or alternatively, for summary judgment, on the ground that plaintiff's claims are barred by the doctrine of laches, in that plaintiff waited more than ten years after the alleged discriminatory act to request a Notice of Right to Sue from the EEOC and file his complaint in federal court, and that this delay has severely prejudiced Partners' ability to investigate and respond to plaintiff's allegations. Partners also argues that the EEOC's ten year inaction in processing ...

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