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OCASIO v. FASHION INSTITUTE OF TECHNOLOGY

March 6, 2000

JOSE ALBERTO OCASIO, PLAINTIFF,
V.
FASHION INSTITUTE OF TECHNOLOGY, JOAN VOLPE, BARBARA JANOFF, BARBARA LOVATO, AND CAROL DESANTIS DEFENDANTS.



The opinion of the court was delivered by: Sprizzo, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff pro se brings this action against defendants Fashion Institute of Technology ("FIT"), Joan Volpe, Barbara Janoff, Barbara Lovato and Carol DeSantis alleging employment discrimination under Title VII of the Civil Rights Act of 1964 as amended by 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA").*fn1 Defendants move to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to comply with the 90-day statute of limitations imposed on actions brought pursuant to Title VII and the ADEA. For the reasons stated below, defendants' motion to dismiss shall be granted.

BACKGROUND

Plaintiff was employed by the defendants as an administrative clerk from October 1991, until his termination on July 31, 1995. Plaintiff alleges that in the course of his employment he "began having problems" with his supervisor, defendant Joan Volpe, because she apparently harbored some "personal Animus (sic)" toward him. See Complaint at 3. Plaintiff further asserts that he was terminated because of his age, race and gender. See id. at 3-4.

On October 4, 1995, plaintiff filed a verified complaint with the New York State Division of Human Rights ("NYSDHR"). See Complaint at Exhibit ("Ex.") 1. After an investigation, the NYSDHR investigator assigned to the case determined that "there is NO PROBABLE CAUSE to believe that said respondent engaged . . . in the unlawful discrimination complained of" and dismissed plaintiff's complaint. See id. (emphasis in original). He also advised plaintiff of his right to seek review of his claim to the Equal Employment Opportunity Commission ("EEOC") since he filed his charge under Title VII and the Americans with Disabilities Act ("ADA"). See id.

Thereafter, plaintiff sought review of his claims from the EEOC. By letter dated February 11, 1998, the EEOC determined that, after investigating the allegations in his complaint, "the evidence . . . does not establish violations of [Title VII or the ADA]." See Complaint at Ex. 2. However, in the same letter, the EEOC advised him of his right to pursue the action by filing a private suit within 90 days from the receipt of the letter (the "right-to-sue letter"). See id.

On May 13, 1998, this Court's Pro Se Office received from plaintiff a complaint and declaration requesting that he be permitted to proceed in forma pauperis ("IFP"). See Declaration in Support of Request to Proceed In Forma Pauperis dated May 13, 1998 at 1. On July 6, 1998, the Court granted plaintiff's application to proceed IFP, and on July 17, 1998, the Court filed plaintiff's complaint with the Clerk of Court (the "Clerk"). The Clerk subsequently assigned this complaint docket number 98 Civ. 5078.

On December 28, 1998, the Court sua sponte issued an Order directing that unless plaintiff could show that defendants had been served or good cause why they had not been served, the Court would dismiss the action for failure to effect service within 120 days as required by Rule 4(m) of the Federal Rules of Civil Procedure. See Order dated December 28, 1998. On January 27, 1999, plaintiff filed an unsworn "declaration" in response to the Court's Order, stating that he timely requested the United States Marshals Service (the "Marshals") to serve the amended summons and complaint upon defendants on November 11, 1998. See Declaration of Jose Alberto Ocasio dated January 27, 1999. He also attached a photocopy of the "Process Receipt and Return" form ("process form") that he submitted to the Marshals to serve defendants. See id. at 2. The process form, signed by plaintiff, indicated that plaintiff submitted his request to the Marshals on November 19, 1998. See id.

After reviewing both plaintiff's "declaration" and the process form, the Court determined that a factual discrepancy existed between them, to wit: plaintiff's declaration stated that he requested the Marshals to serve the defendants on November 11, 1998, while the process form that he attached to his declaration stated that he requested them to serve on November 19, 1998 (more than 120 days after the filing of his complaint). Accordingly, in an attempt to provide plaintiff with an opportunity to explain the discrepancy and/or show cause for his apparent failure to comply with Rule 4(m), the Court issued an Order on January 27, 1999, directing plaintiff to demonstrate by affidavit specific reasons for his failure to timely serve defendants. See Order dated January 27, 1999.

On February 25, 1999, plaintiff in an unsworn affidavit repeated his prior assertion that he requested the Marshals to serve the defendants on November 11, 1998, before the expiration of the 120 days provided for by Rule 4(m). See Plaintiffs (sic) Supplementary Brief in Support of (sic) Opposition (sic) of Motion to Dismiss Complaint dated February 25, 1999 at 2-3.

Thereafter, the Court directed the parties to appear on March 30, 1999, for a hearing to determine whether plaintiff had requested the Marshals to serve defendants on November 11, 1998 or on November 19, 1998. See Order dated March 8, 1999. Plaintiff signed for and received a copy of this Order which was sent by certified mail. See Summary Order dated March 31, 1999.

On March 30, 1999, plaintiff failed to appear at the hearing, request an adjournment or otherwise contact the Court. See Transcript of Hearing held on March 30, 1999, ("Tr.") at 1. After concluding that the unrefuted documentary evidence established that the plaintiff requested the Marshals to serve defendants on November 19, 1998, more then 120 days after the filing of the Complaint, the Court dismissed the action without prejudice for failure to comply with Rule 4(m).*fn2 See Tr. at 3-4; Summary Order dated March 31, 1999, at 2. Plaintiff never moved for reconsideration of this decision, nor was an appeal taken.

On July 26, 1999, plaintiff filed the instant action bearing docket number 99 Civ. 5919 against the same defendants alleging the same claims.

Defendants now move to dismiss the instant case because it is barred by the applicable statute of limitations. Moreover, defendants argue that there are no equitable reasons that justify tolling the statute of limitations in this case. In response, plaintiff, without addressing the substance of defendants' motion, moves to disqualify this Court on the basis of the Court's prior adverse decisions, the Court's alleged engagement in ex parte communications with defendants' counsel, and the Court's purported violation of its own Individual Rules and Procedures. See Amended Notice Memorandum of ...


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