(citations omitted). This requirement "is analogous to a statute
of limitations," Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 712 (2d Cir. 1996), and bars consideration of
"discriminatory incidents not timely charged before the EEOC" in
subsequent suits in district court. Quinn, 159 F.3d at 765.
Harrington filed a discrimination charge with the EEOC on
August 21, 2000. Ordinarily then, her Title VII claim would only
include incidents occurring in the preceding 180 days, or, only
those incidents occurring on and after February 22, 2000.*fn2
Plaintiffs complaint relates primarily to events which occurred
Harrington argues that the discrimination she was subjected to
falls within the "continuing violation" exception. The
continuing-violation exception applies when there is evidence an
ongoing policy or practice of discrimination. Van Zant, 80
F.3d at 713. "[M]ultiple incidents of discrimination, even
similar ones, that are not the result of a discriminatory policy
or mechanism do not amount to a continuing violation." Quinn,
159 F.3d at 765 (quoting Lambert v. Genesee Hosp., 10 F.3d 46,
53 (2d Cir. 1993)). However, a continuing violation may be found
1) where a specific and ongoing discriminatory policy or
practice is shown or 2) 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." Id. at 766 (quoting Cornwell v. Robinson,
23 F.3d 694, 704 (2d Cir. 1994)). When a continuing violation is
shown, all relevant actions taken pursuant to the employer's
discriminatory policy or practice may be considered, even those
that would otherwise be time barred. See Fitzgerald v.
Henderson, 251 F.3d 345 (2d Cir. 2001) (quoting Van Zant, 80
F.3d at 713).
The plaintiff has not shown a continuing violation. First, the
instances which occurred in 1997 were the subject of her written
complaint to Pashley in November 1997 and were addressed by
immediate investigation. In fact, in March 1998, in response to
a written inquiry from Pashley, Harrington indicated that, while
she believed that Lefflear continued "to harass others", she
"believed that this issue is resolved for now." (Pashley Aff.Ex.
H.) She also thanked Pashley for the manner in which the matter
was handled. Pashley encouraged the plaintiff to report any
future incidents to the Commissioner of Social Services. Second,
Harrington does not state any specifics or dates concerning any
alleged subsequent incidents of discrimination and there is no
evidence that she reported any subsequent incidents, which would
have placed the County on notice of a continuing problem.
Finally, she has failed to demonstrate that the incidents
concerning Lefflear's alleged harassment towards her and her
alleged constructive discharge are related. Consequently, since
no continuing violation has been demonstrated, only events
occurring on or after February 22, 2000 may be considered with
respect to Harrington's Title VII claims.
2. Hostile Work Environment
Under Title VII, in order to establish a prima facie case of
environment discrimination, a plaintiff must sufficiently plead
and prove: (1) that she is a member of a protected group; (2)
that she was the subject of unwelcome advances; (3) that the
harassment was based upon her sex; and (4) that the harassment
affected a term, condition or privilege of her employment. See
Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir.
1993). A hostile work environment is one which is "permeated
with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive work environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993) (internal quotations omitted) (citations
omitted); Torres v. Pisano, 116 F.3d 625, 630 (2d. Cir. 1997).
The conduct must be severe or pervasive enough that an
objective, reasonable person would find the work environment
hostile or abusive. Harris, 510 U.S. at 21, 114 S.Ct. 367;
see also Fitzgerald, 251 F.3d 345, 2001 WL 588961, at ___.
Additionally, the victim must subjectively perceive the
environment as abusive. Harris, 510 U.S. at 2122, 114 S.Ct.
As stated above, the events alleged in the complaint which
occurred in 1997 must be excluded from consideration. When those
events are excluded, the complaint broadly alleges that after
Harrington made her written complaint in November 1997, Lefflear
made snide remarks about her, (Compl. ¶ 25), "called her a
`bitch' on more than one occasion," id., taunted her, and
continued to stare at her. Id. ¶ 26. Even assuming their
truth, these general and conclusory allegations, which are not
supported by factual assertions, are insufficient to state a
claim for hostile work environment. Alternatively, even if these
broad allegations are sufficient to state a claim, the plaintiff
has failed to set forth sufficient specific facts demonstrating
that her work environment was permeated with severe and
pervasive discriminatory conduct. Rather, at best, the conduct
alleged was merely offensive and did not appear to affect
plaintiffs job performance. Accordingly, plaintiffs Title VII
claim for hostile work environment must be dismissed.
In order to establish a prima facie case of retaliation, the
plaintiff must demonstrate that 1) she participated in a
protected activity which was known to the defendant, 2) an
adverse employment action was taken against the plaintiff, and
3) there is a causal connection between the protected activity
and the adverse employment action. Gregory, 243 F.3d at 700;
Quinn, 159 F.3d at 769. Once a plaintiff establishes a prima
facie case, the burden shifts to the defendant to set forth
evidence of a legitimate, non-retaliatory explanation for the
employment action. Richardson v. New York State Dep't of Corr.
Serv., 180 F.3d 426, 443 (2d Cir. 1999). If the defendant is
successful in meeting its burden, then the "plaintiff must
demonstrate that there is sufficient potential proof for a
reasonable jury to find the proffered legitimate reason merely a
pretext for impermissible retaliation." Id.
As a result of excluding events which occurred prior to
February 22, 2000, the plaintiff essentially alleges she was
subjected to three adverse employment actions: 1) Poor
evaluations, 2) she was given less field work, and 3) she was
given no work to do after she returned from surgery. However, a
review of the record does not bear out plaintiffs claims.*fn3
plaintiffs evaluations after she had filed her written complaint
were not negative, but rather, quite complementary. Second, the
defendants have produced evidence that all senior caseworkers,
like the plaintiff, were given less field work due to a
reconfiguration in their duties. Harrington has not presented
any evidence to the contrary. Finally, the plaintiff has failed
to demonstrate a causal connection between her November 1997
complaint and her claim that she was given no work to do when
she came back from surgery in 1999. In addition, the plaintiff
has failed to indicate when and to whom she made requests for
work; there is no evidence that she pursued the available
avenues for redress, as she had in November 1997; and her
evaluations for that time period suggest that she had a
sufficient amount of work and responsibility. Therefore, the
plaintiff has failed to establish a prima facie case of
4. Constructive Discharge
A constructive discharge occurs when an employer intentionally
makes an employee's working conditions so intolerable that the
employee is forced to involuntarily resign. See Fitzgerald,
251 F.3d 345, 2001 WL 588961, at *9, (quoting Chertkova v.
Conn. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)); see also
Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983).
The working conditions must have been "so difficult or
unpleasant that a reasonable person in the employee's shoes
would have been compelled to resign." Whidbee v. Garzarelli
Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000) (quoting
Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987)).
In the present case, the evidence demonstrates that plaintiffs
November 1997 written complaint of sexual harassment was met
with due consideration and resulted in a prompt investigation of
the charges. Harrington never registered any subsequent
complaints about the working conditions despite her knowledge of
the available avenues of redress and Pashley's invitation to
report any future incidents. In early 1998, Lefflear was removed
from the plaintiff's unit, as she requested, thereby removing
him from her supervision, and his desk was physically moved so
that he no longer was in the direct view of the plaintiff.
Plaintiffs evaluations were positive and do not indicate any
attempt to force her to quit. Harrington's transfer to a new
unit, pursuant to her request, required her to perform less
field work, but much more supervisory work. The record does not
bear out plaintiffs claim that she had no work to do; rather,
she was required to perform a different type of work. In light
of the above, the plaintiff has failed to demonstrate that her
working conditions were so intolerable that a reasonable person
in her position would have resigned.
C. State Law Claims
Under New York State law, no action may be commenced against a
municipality or its employees unless a notice of claim is served
upon the municipality within ninety days of the date of the
incident giving rise to the claim. See N.Y.Gen.Mun.Law § 50-e
(McKinney 1999). In addition, a plaintiff must allege compliance
with such notice requirements in the complaint. § 50i(1)(b).
In the present case, the complaint does not allege that a
notice of claim was ever served upon the County, nor does
plaintiff make any contention that she served such notice. While
the plaintiff contends that the Second Circuit has held that no
notice of claim is required for actions brought under the
federal civil rights statutes, she presents no authority for the
proposition that supplemental state law claims brought in
federal court do not have to comply with the state's notice
requirements.*fn4 Therefore, plaintiffs state law claims must
be dismissed for failure to serve a notice of claim.
Most of plaintiffs allegations in support of her Title VII
claims are time-barred. Her remaining allegations with respect
to her claim of hostile work environment are too broad and
conclusory to state a prima facie case. The evidence does not
support her claims of retaliation and constructive discharge.
Further, the plaintiff has failed to demonstrate a causal
connection between her November 1997 written complaint and the
events occurring in 1999 and 2000, which she claims were
retaliatory and forced her to resign. The plaintiff's state law
claims must be dismissed for failure to serve a notice of claim.
Accordingly, it is
1. The motion by defendants County of Fulton and Fulton County
Department of Social Services to dismiss the complaint, or
alternatively, for summary judgment is GRANTED;
2. Defendant Fred Lefflear is DISMISSED sua sponte; and
3. The complaint is DISMISSED in its entirety.
The Clerk is to enter judgment accordingly.
IT IS SO ORDERED.