complaint to the EEOC on January 11, 1999. Id. at ¶ 8; Item
1, Ex. A. This complaint was apparently accepted by EEOC despite a
notification from the EEOC dated September 7, 2000 that it could not
investigate her charges because they were "not filed within the time
limit required by law." Item 1, Ex. B. Although more than 300 days had
passed since notification of her termination, the EEOC nevertheless filed
the charge, acknowledging to Dr. Jacobs that the delay resulted from its
error, and that it should have prepared the complaint sooner. Id. at
In addition to the above alleged facts, which would be relevant to
equitable tolling, Dr. Jacobs also claims that the 300-day bar does not
apply to this case under the continuing violation doctrine. Id. at ¶ 11.
In support of this position, she alleges that after her termination, she
received numerous harassing messages, and discriminatory and retaliatory
job references which amounted to a continuing violation. Id. at
1. The 300-Day Bar
SUNY and RPCI first argue that, because Dr. Jacobs did not file her
complaint with the EEOC within 300 days after the alleged unlawful
discriminatory acts occurred, her Title VII claim is time-barred pursuant
to 42 U.S.C. § 2000e-5(e)(1). Item 6, p. 2. In response, Dr. Jacobs
argues that the 300-day bar should not apply in this case because the
delay in filing was caused by the error of the EEOC. Item 15, ¶ 9.
a. Section 2000e-5(e)(1)
As a rule, a plaintiff cannot sue under Title VII of the Civil Rights
Act without first filing a complaint with the EEOC "within three hundred
days after the alleged unlawful employment practice occurred. . . ."
42 U.S.C. § 2000e-5(e)(1). In this case, Dr. Jacobs was informed of
her termination on January 21, 1998, which became effective on June 30,
1998. Item 1, ¶ 15. She sent her complaint to the EEOC on January 11,
1999. Item 15, ¶ 8. There are less than 300 days between June 30, 1998,
and January 11, 1999. However, it is well settled that "the timeliness of
a discrimination claim is measured from the date the claimant receives
notice of the allegedly discriminatory decision, not from the date the
decision takes effect." O'Malley v. GTE Serv. Corp., 758 F.2d 818, 820
(2d Cir. 1985). Therefore, January 21, 1998 is the date from which the
300-day time period begins to run, and Dr. Jacobs failed to file her
claim within the 300-day statutory period.
As the Supreme Court has explained, however, "the remedial purpose of
the [civil rights] legislation" would be defeated if aggrieved plaintiffs
were absolutely barred from pursuing judicial remedies by reason of
excusable failure to meet the time requirement. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 398 (1982); Johnson v. Al Tech Specialities
Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984). Thus, "filing a timely
charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court. . . ." Zipes, 455 U.S. at 393.
Rather, timely filing a complaint is "a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable tolling."
Id. Dr. Jacobs argues that, even if she failed to file her complaint with
the EEOC within the required statutory period, her Title VII claim should
still stand under either the equitable tolling or continuing violation
doctrines. Item 5, ¶ 9, 11.
i. Equitable Tolling
Under the theory of equitable tolling, a plaintiff may be allowed to
or her claim outside the 300-day period where equity so
requires. Long v. Frank, 22 F.3d 54, 58 (2d Cir. 1994) (citing Dillman
v. Combustion Eng'g, Inc., 784 F.2d 57, 60 (2d Cir. 1986)). The Second
Circuit has identified three general instances in which equitable tolling
is appropriate, including where (1) a plaintiff was unaware of his or her
cause of action due to misleading conduct of the defendant; (2) a
plaintiff actively pursued judicial remedies by filing defective pleadings
during the statutory period;*fn3 or (3) extraordinary circumstances have
prevented the employee from exercising his or her right. Miller v. IT&T
Corp., 755 F.2d 20, 24 (2d Cir. 1985). Equitable tolling will stay the
running of the statutory period "only so long as the plaintiff has
exercised reasonable care and diligence." Dodds v. Cigna Secs., Inc.,
12 F.3d 346, 350 (2d Cir. 1993).
Dr. Jacobs claims that she is entitled to equitable tolling of the
300-day deadline because her failure to timely file the complaint was due
to the EEOC's error. Item 15, ¶ 9. SUNY and RPCI concede that the
statutory period to file a charge with the EEOC may be, in appropriate
circumstances, subject to tolling. Item 18, p. 4. They claim, however,
that Dr. Jacobs alleged no facts which would entitle her to such relief.
Id. at p. 3.
The Second Circuit has found that equitable tolling applies where a
plaintiff had not filed his complaint with the EEOC within 300 days after
the alleged violation of the Act because an EEOC official told him that
the complaint could be filed late. Johnson, 731 F.2d at 146 (citing Ramos
v. Port Authority of New York & New Jersey, 20 Fair Empl. Prac. Cas.
(BNA) 174 (S.D.N.Y. 1976)). See Harris v. City of New York, 186 F.3d 243,
248 n. 3 (2d Cir. 1999), where the Second Circuit opined, "Generally
courts do not penalize litigants for EEOC's mistakes and misinformation.
(See, e.g., Jackson v. Richards Medical Co., 961 F.2d 575, 587 n. 11 (6th
Cir. 1992), cited and quoted with approval in Ford v. Bernard Fineson
Dev. Ctr., 81 F.3d 304, 312 (2d Cir. 1996))." Similarly, a court in the
Southern District held that equitable tolling was warranted where the
plaintiff failed to timely file a complaint since the EEOC mailed its
determination letter and Notice of the Right to Sue to the wrong address
(even though plaintiff informed EEOC of his change of address). Smith v.
Chase Manhattan Bank, 1998 WL 642930, at *4 (S.D.N.Y. 1998). Another
Southern District court has held that "equitable modification is
appropriate where the EEOC misleads a complainant about the nature of his
or her rights under Title VII or the ADEA." O'Connor v. Pan Am., 1990 WL
118286 at *2 (S.D.N.Y. May 4, 1990). These cases indicate that where the
EEOC, not plaintiff, was derelict in its duties, equitable tolling may
In this case, Dr. Jacobs actively pursued her claim. She contacted the
EEOC well within the 300 day statutory period and followed its
instructions. Item 15. She did not abandon her claim but continued to
make inquiries on the progress of her claims. Moreover, she asserts that
the EEOC acknowledged its fault in having delayed in preparing the
complaint, id., ¶ 9, explaining on one occasion that it "had lots of
claims, and was overworked and understaffed." Id., ¶ 7.
Considering the equities of the excuse offered to explain the delay in
filing, and plaintiff's diligence in pursuing her claims, the court finds
that Dr. Jacobs is entitled to the benefit of equitable tolling. Thus,
her Title VII claims stand. At this point, however, a date cannot be
ascertained as to when the period of equitable tolling started. This date
would be relevant to determine which instances of alleged discrimination
prior to Dr. Jacobs' termination were still timely. The court will discuss
this matter with counsel during a meeting scheduled for April 22, 2002 at
ii. Continuing Violation
Because the court finds equitable tolling applicable, it need not reach
the question of whether plaintiff's claims are timely under a continuing
C. The Eleventh Amendment
The next question is whether the Title VII and the New York Human
Rights Law claims against SUNY are barred under the Eleventh Amendment.
For Eleventh Amendment purposes, SUNY "is an integral part of the
government of the State [of New York] and when it is sued the State is
the real party." Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d
Cir. 1990) (citation omitted).
It is well settled that when Congress, acting under § 5 of the
Fourteenth Amendment, authorizes federal courts to award money damages in
favor of a private individual against a state guilty of discrimination
under Title VII, the Eleventh Amendment is no bar. Trotman v. Palisades
Interstate Park Commission, 557 F.2d 35, 38 (2d Cir. 1977) citing
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Therefore, Dr. Jacobs' Title
VII claims against SUNY are not dismissed.
On the other hand, the Eleventh Amendment generally prohibits suits
against state governments in federal court. Richardson v. New York State
Dep't Correctional Serv., 180 F.3d 426, 447-48 (2d Cir. 1999) (citing
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)).
Consequently, Dr. Jacobs' New York State Human Rights Law claims as to
SUNY are dismissed.
D. Indispensable Party and Supplemental Jurisdiction
Finally, SUNY and RPCI argue that if all claims against SUNY are
dismissed, the court should either dismiss the remaining
claims against RPCI on the basis of the absence of an indispensable party,
or, alternatively, decline to exercise supplemental jurisdiction as a
matter of discretion. Item 6, pp. 5-9.
1. Indispensable Party
Under Fed.R.Civ.P. 19(b), the court shall determine whether in equity
and good conscience the action should proceed among the parties before
it, or should be dismissed, if an indispensable party cannot be made a
party. Because the court declines to dismiss plaintiff's Title VII claims
against SUNY, RPCI's indispensable party argument is moot.
2. Supplemental Jurisdiction
As a rule, the district court may decline to exercise supplemental
jurisdiction over a state law claim if "the district court has dismissed
all claims over which it has original jurisdiction."
28 U.S.C. § 1367(c)(3). Since the Title VII claims remain in this
case, the court retains supplemental jurisdiction over Dr. Jacobs'
remaining New York State Human Rights Law claims.
For all of the above reasons, the court denies defendants State
University of New York at Buffalo School of Medicine and Roswell Park
Cancer Institute's motion to dismiss and for summary judgment. Item 5.
The New York State Human Rights Law claims against SUNY are dismissed.
The court will meet with counsel on April 22, 2002 at 11 a.m.