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January 26, 2004.


The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


These actions are consolidated for the purposes of this Memorandum and Order. In Dean I, defendant New York City Transit Authority ("TA") moves to dismiss plaintiff's Title VII claim as time-barred. In Dean II, the individual defendants move to dismiss plaintiff's Title VII claims. Alternatively, if these claims be construed as brought under § 1983, defendants move to dismiss for failure to state a cognizable claim against the Transit Authority in Dean I and Page 2 against the individual defendants in Dean II.

 I. Dean I

  Dean, currently employed by the TA, brings a Title VII gender discrimination claim against the TA concerning alleged discriminatory acts that occurred between December 2000 and July 2001. Specifically, Dean alleges, in her EEOC charge,*fn1 that she received disparate treatment by the Transit Authority because of her gender when she was:
[T]ransferred . . . in November of 2000[,] . . . denied [her] pick rights in December 2000[,] . . . given incomplete training . . . [whereas] men were being trained [and] received a schedule for training[,] . . . [h]er seniority was denied[,] . . . [her supervisor Mrs. O'Blenis] made negative comments about her job performance[,] and [she] was disciplined . . . for a late pull-out [whereas] Mrs. O'Blenis never disciplined the male dispatcher for late pull-outs.
Compl. Ex. at 12-13.*fn2 Furthermore, Dean alleges that three other women "up for promotion . . . had to fight for their rights to be promoted" and filed charges with the EEOC. Id. at 14. At some point in time, her supervisor stated that "she was not going to have a repeat of what [another employee did] in regards to suing and writing letters . . . [and she stated] that she was going to `nip this letter writing shit in the bud.'" Id.

  The TA moves to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), Dean's Title VII claim because Dean filed this action more than 90 days after her receipt of the Equal Employment Opportunity Commission's ("EEOC") right-to-sue notice. In a pro se letter, Dean Page 3 asks the Court to deny TA's motion because she states a § 1983 claim. In response, the TA contends that Dean's allegations "do not suffice to allege [a] cause[] of action under § 1983." Transit Authority Reply Letter, dated December 23, 2003, at 2.

 A. Title VII

  "A claim under Title VII . . . must be filed within 90 days of the claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2d Cir. 1996). Dean alleges that she never received a right-to-sue letter, see Compl. at 5; however, attached to the complaint is a letter from the EEOC, dated January 24, 2002, explaining its denial of her claim. It states that the "Notice of Right to Sue is enclosed" and informs Dean that she could initiate a suit in federal court within 90 days. Compl. Ex. at 3-4. Thereafter, Dean requested reconsideration of the dismissal; in an EEOC letter, dated March 7, 2002, also attached to the complaint, her request was denied and she was once again informed of her right to file a lawsuit "within 90 days of [her] receipt of the Dismissal and Notice of Rights issued on January 24, 2002." Compl. Ex. at 9.

  Although the Court must "accept as true all the factual allegations in the complaint," Newman & Schwartz v. Asplundh Tree Expert Co., Inc. 102 F.3d 660, 661 (2d Cir. 1996), it can also rely upon "documents attached to the complaint as exhibits or incorporated in the complaint by reference." Id. Despite Dean's allegation that she never received a right-to-sue letter, the letters attached to the complaint and Dean's request for reconsideration clearly establish that she had knowledge of the EEOC's denial of her claim and her right to initiate a lawsuit. Because Dean had notice of her right to sue and did not file this action until March 19, 2003, well after the requisite 90-day period — whether measured from the January 24, 2002 letter or the March 7, 2002 letter — her Title VII claim is dismissed as time-barred. Page 4

 B. § 1983

  When a gender discrimination claim is brought against a state actor, Title VII and § 1983 overlap. The Second Circuit has repeatedly held that Title VII is not the "exclusive remedy for employment discrimination claims against state or municipal employers," Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994). Section 1983 "furnishes a cause of action [against a state actor] for the violation of federal rights created by the Constitution" or federal statutory rights. Id. Under the Equal Protection Clause, "individuals have a constitutional right . . . to be free from sex discrimination in public employment," id.; thus, an "employment discrimination plaintiff alleging the violation of a constitutional right may bring suit under § 1983 alone," or in conjunction with a Title VII claim, if it is brought against a state actor. Id. at 255. Employment discrimination claims brought under Title VII and § 1983 are both analyzed under "the burden-shifting framework of Title VII claims." Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). Title VII and § 1983 diverge in that a Title VII claim can be based upon respondeat superior liability, whereas a § 1983 claim cannot. See Gierlinger v. New York State Police, 15 F.3d 32, 33 (2d Cir. 1994) ("a Title VII sex discrimination claim . . . carries respondeat superior liability, and a 42 U.S.C. § 198 damage claim . . . does not impose respondeat liability").

  Because Title VII and § 1983 converge in this context, and given Dean's status as a pro se litigant, the Court will deem the complaint amended to assert a § 1983 claim against the Transit Authority and assess whether Dean's allegations are sufficient to state a cognizable § 1983 claim. See Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (pro se complaints should be liberally construed; the Court must "interpret them to raise the strongest arguments that they suggest"). Page 5

  A § 1983 claim against a municipal agency such as the Transit Authority is cognizable where the alleged constitutional violation by TA employees resulted from either a government custom, policy, pattern or practice. See Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690-91 (1978). "The policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation," Sorlucco v. New York City Police Department, 971 F.2d 864, 871 (2d Cir. 1991); rather, a policy can be shown when "practices . . . are persistent and widespread, [such that] they could be so permanent and well settled as to constitute a custom or usage with the force of law." Id. However, "before the actions of subordinate city employees can give rise to § 1983 liability, their discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials." Id. (internal quotations and citations omitted). A municipal custom or policy may also be shown by "circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." See DeCarlo v. Fry, 141 F.3d 56, 61-62 (2d Cir. 1998) (internal quotations omitted). Finally, Monell liability exists "where an official has final authority over significant matters involving the exercise of discretion [such that] the choices he makes represent government policy." Clue v. Johnson, 179 F.3d 57, 62 (2d Cir. 1999).

  In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993), the Supreme Court rejected the application of a heightened pleading standard in civil rights cases alleging municipal liability. Thus, a plaintiff bringing a Monell claim need only comport with the general pleading requirements in Fed.R.Civ.P. 8, namely that the plaintiff provide a "short and plain statement of the claim," Leatherman, 507 U.S. at 168 (quoting Fed. Page 6 R. Civ. P. 8(a)(2)); however, the statement of the claim must at least give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Cases subsequent to Leatherman make it clear that under the general pleading standard, "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." DeCarlo, 141 F.3d at 61. Furthermore, prior to Leatherman, the Second Circuit held that under the general pleading requirements, "an allegation of municipal policy or custom [is] insufficient if wholly conclusory," Ricciutti v. New York City Transit Authority, 941 F.2d 119, 114 (2d Cir. 1991); a holding unaffected by the Leatherman decision.

  Here, even in light of Leatherman and the relaxed standards applied to pro se complaints, the Court finds that Dean has failed to allege that the disparate treatment by her supervisor resulted from any municipal policy, practice, or custom; she fails to allege a pervasive and widespread pattern of discrimination or actions of an official with final authority on policy matters. Accordingly, her claim against the TA must be dismissed; however, Dean is granted leave to amend her complaint to state facts supporting a Monell claim, if she can. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (court may not dismiss a pro se complaint without granting leave to amend at least once when a liberal reading of the complaint "gives any indication that a valid claim ...

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