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United States District Court, S.D. New York

May 25, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


The instant action arises out of Dr. Dina Dahbany-Miraglia's employment with Queensboro Community College ("QCC"). Plaintiff claims that QCC and the individual defendants, Dr. Leroy Paves and Dr. Robert Simons, discriminated against her because of her gender, race (African American), and age (65 at the time of the complaint). Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"); the Americans With Disabilities Act ("ADA"); the New York State Human Rights Law ("SHRL");and the New York City Human Rights Law ("CHRL"). Plaintiff also claims she was the victim of unlawful retaliation. Defendants move to dismiss the Complaint on various grounds including: (1) lack of subject matter jurisdiction; (2) expiration of the statute of limitations; (3) failure to exhaust administrative remedies; and (4) failure to satisfy certain conditions precedent. For the following reasons, defendants' motion is granted in part and denied in part. I. FACTUAL BACKGROUND

Plaintiff is an African-American woman in her mid sixties who is currently employed as a full-time, tenured professor at QCC.

  A. The Alleged Discrimination*fn1

  In the Spring of 1991, Dr. Miraglia was hired as an Adjunct Assistant Professor to teach in QCC's Speech Department. Dr. Miraglia was rehired in the Fall of 1995 as an Assistant Professor and was placed on a tenured track. At that time, Dr. Helen Yalof was the Department Chairperson. Dr. Yalof regularly and repeatedly screamed at plaintiff and demanded that she perform menial, personal tasks including washing Dr. Yalof's laundry. Dr. Yalof also took plaintiff off her tenured-track position and placed her on a Sub Line at the lowest pay possible. On October 27, 1995, plaintiff was reinstated to a full time tenured-track position by the College Administration, a decision confirmed by a vote of the Personnel and Budget ("P&B") Committee.*fn2

  Dr. Paves became Department Chairperson in 1995. In addition to making jokes about plaintiff and otherwise humiliating her, Dr. Paves was instrumental in denying plaintiff reappointment in 1997 and again in 1999.*fn3 On January 20, 2000, after plaintiff became tenured, Dr. Paves physically threatened her, causing her to file a report with Campus Security the next day. Dr. Paves retaliated against plaintiff for filing this report in a number of ways: Dr. Miraglia was moved into a cramped, poorly lit office; she was removed as a member of QCC's P&B Committee; and she was denied leave to travel to various presentations which resulted in the loss of publishing opportunities. Finally, Dr. Miraglia's teaching schedule was changed — she was assigned classes at opposite ends of the campus even though her severe arthritis made it extremely difficult for her to get to class on time. This change in plaintiff's classroom schedule exacerbated her leg and hip injuries.

  In April 2001, Dr. Robert Simons replaced Dr. Paves as Department Chairperson. Plaintiff claims that Dr. Simons perpetuated the abuse started by Dr. Paves. Specifically, plaintiff alleges that Dr. Simons, along with Dr. Paves, voted against plaintiff's promotion to Associate Professor for three consecutive years. In addition, Dr. Simons gave plaintiff an unsatisfactory review as part of the Chair's Annual Evaluation in April 2001.

  As a result of defendants' discrimination, Dr. Miraglia suffered loss of past and future earnings, loss of other employment benefits, and emotional injuries.

  B. Plaintiff's Charges of Discrimination with the EEOC

  Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 30, 2001 (the "2001 Charge"). In the 2001 Charge, plaintiff claims she was discriminated against on the basis of age, race, sex, and in retaliation for filing an incident report with Campus Security. Specifically, plaintiff's 2001 Charge states that

[s]ince October 1997 my chair [Dr. Paves] has singled me out overtly as his target of discrimination based on age, sex, race and retaliation. He habitually screams and yells at me and demeans me in front of faculty, students and staff. * * *
In October 2000 he [Dr. Paves] attacked me physically. I filed an Incident Report at QCC. Shortly thereafter he retaliated by moving me from the spacious well-lit area which I've occupied since September 1992 to a cramped, ill-lit desk in the foyer of another office.
1/30/01 Charge of Discrimination. Plaintiff was issued a right-to-sue letter on June 6, 2001.

  Plaintiff filed a subsequent Charge of Discrimination with the EEOC on March 14, 2003 (the "2003 Charge"). The 2003 Charge claims retaliation based on her earlier complaint which she describes as a "continuing action." Specific allegations include:

• discrimination by Dr. Paves beginning in September 1995 escalating from 1997 to the date of his removal as Department Chairperson in March 2001
• harassment by Dr. Simons from April 2001 until January 2003
• denial of promotion to Associate Professor on March 7, 2002, May 2, 2002, and May 24, 2002 • denial of reappointment in 1997 and 1999
• unfair treatment in connection with a grievance filed in 2000
• credentials questioned by the Academic Review Committee on May 1, 2002
The EEOC issued a right-to-letter in connection with the 2003 Charge on July 14, 2003. The instant action was filed on October 10, 2003.


  A. Motion to Dismiss

  Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Caiola v. Citibank, N.A., New York, 295 F.3d 312, 321 (2d Cir. 2002) (internal quotation marks and citation omitted); see also Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Courts may not consider matters outside the pleadings but may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings. See id. at 152-53.

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (per curiam) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Therefore, the task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (quoting Saunders v. Coughlin, No. 92 Civ. 4289, 1994 WL 98108, at *2 (S.D.N.Y. Mar. 15, 1994)).

  B. Time Limitations Under Title VII

  With regard to the filing of a charge of discrimination with the EEOC, Title VII provides:

  A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. 42 U.S.C. § 2000e-5(e)(1). In New York, a so-called deferral state because of the existence of the State Division of Human Rights, an employee has 300 days from the time when she knew or should have known of the alleged discrimination to file a complaint with the EEOC. See Harris v. City of New York, 186 F.3d 243, 247-48 & n.2 (2d Cir. 1999).

  In order to bring a timely complaint of discrimination in federal court, a plaintiff must file an action within 90 days of receiving her right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f); Holt v. KMI-Continental, Inc., 95 F.3d 123, 132 (2d Cir. 1996). Generally, the time to bring a Title VII claim begins to run from the date that plaintiff receives her first right-to-sue letter. See Soso Lian Lo v. Pan American World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) (per curiam) ("We hold that whether the present action is time barred must be determined with reference to only the first Notice of Right to Sue. Otherwise, the time limitations of 42 U.S.C. § 2000e-5(f)(1) would be meaningless, because potential Title VII plaintiffs could evade those requirements simply by seeking additional Notices of Right to Sue whenever they pleased.").

  Lo was distinguished in Goodluck v. Kelly Tractor Co., 733 F. Supp. 1479 (S.D. Fla. 1990). In Lo, the plaintif filed a second charge of discrimination with the EEOC based on the identical facts alleged in her first charge. See Lo, 787 F.2d at 828 ("The second Notice is concededly based upon a charge involving exactly the same facts as the first Notice."). In Goodluck, the plaintiff's first charge of discrimination was based on retaliation. See Goodluck, 733 F. Supp. at 1481. In a second charge of discrimination, the plaintiff alleged discrimination based on race and national origin. See id. In processing the two charges, the EEOC treated them differently, the first charge was dismissed for lack of jurisdiction while the second charge was examined on the merits. See id. The court found that the expiration of the ninety-day period set in motion by plaintiff's first charge of discrimination did not preclude plaintiff's suit based on the second charge given that the two charges were distinct enough to warrant separate findings by the EEOC. See id.

  C. Equitable Tolling

  It is well-established that the ninety day period during which a plaintiff must file suit following receipt of a right-to-sue letter is subject to equitable tolling. See South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994) (citing Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)). The Supreme Court has identified four circumstances that will justify tolling the ninety-day period: (1) where the plaintiff has received inadequate notice of the time limit; (2) where a motion for appointment of counsel is pending; (3) where the court has led the plaintiff to believe that she has done everything that was required; and (4) where affirmative misconduct on the part of the defendant lulled the plaintiff into inaction. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). D. Continuing Violation Doctrine

  In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court refined the continuing violation doctrine. In doing so, the Court distinguished between discrete discriminatory acts and hostile work environment claims. As to discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire, the Court stated,

discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180-or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.
Id. at 113. Each discrete incident of discrimination constitutes a separate "unlawful employment practice" which, to be actionable, must be raised in an EEOC charge within the applicable filing period. See id. at 114. The situation is different, however, with regard to hostile work environment claims.


To assess whether a court may, for the purposes of determining liability, review all such conduct, including those acts that occur outside the filing period, we again look to the statute. It provides that a charge must be filed within 180 or 300 days "after the alleged unlawful employment practice occurred." A hostile work environment claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
Id. at 117-18. Thus, as long as some acts contributing to plaintiff's hostile work environment claim occurred within the 300-day filing period, those acts falling outside the 300-day period are not time-barred.

  E. ADA Claim

  Exhaustion of administrative remedies through the EEOC is a precondition to bringing discrimination claims in federal court. See Legnani v. Alitalia Linee Aerree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Accordingly, a district court only has jurisdiction to hear claims that are either included in a plaintiff's EEOC charge or are based on subsequent conduct which is "reasonably related" to the conduct alleged in the EEOC charge. Id. Claims premised on entirely different types of discrimination are not considered reasonably related. See Burrell v. City Univ. of New York, 995 F. Supp. 398, 407-08 (S.D.N.Y. 1998) (finding plaintiff's subsequent national origin claim not reasonably related to her claim of sex discrimination); Dennis v. Pan American World Airways, Inc., 746 F. Supp. 288, 291 (E.D.N.Y. 1990) (finding plaintiff's subsequent age discrimination claim not reasonably related to the race claim described in her EEOC charge).

  F. State and City Claims

  1. Notice of Claim Requirement

  Section 50-i of the General Municipal Law provides that no tort action shall be prosecuted or maintained against the City of New York or any of its officers, agents, or employees unless: (1) a notice of claim has been served against the City; (2) the City has refused adjustment or payment of the claim; and (3) the action is commenced within one year and ninety days after the event upon which the claim is based occurred. See Gen. Mun. Law § 50-i (McKinney 1999). Section 50-e of the General Municipal Law provides requires the notice of claim to be filed "within ninety days after the claim arises." District courts in this circuit are split on whether the notice of claim requirement applies to state discrimination claims. See Aggarwal v. New York City Health and Hosp. Corp., No. 98 Civ. 5063, 2000 WL 172787, at *9 (S.D.N.Y. Feb. 10, 2000) (comparing federal cases where state discrimination claims against municipal defendants were dismissed for failure to file a notice of claim with cases holding that such discrimination claims are not tort actions and therefore not subject to the notice of claim requirement).

  2. Notice Required by New York Education Law

  In addition to the above notice of claim requirement, actions against city universities and their employees must meet an additional requirement.


No action or proceeding based on a cause of action involving a community college of the city university of New York or an officer, agent, servant or employee of such community college acting in the course of his employment may be prosecuted or maintained unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since a demand setting forth the underlying basis for such matter was presented to the city university for adjustment, and that the officers or bodies having the power to adjust or pay such demand have neglected or refused to make an adjustment or payment thereof for thirty days, after such presentment.
N.Y. Educ. Law § 6224(2) (McKinney 2001). Because this language closely tracks the language of section 3813 of the Education Law,*fn4 the notice requirements under both statutes should be construed similarly. As explained by the Appellate Division, Third Department, state courts have construed section 3813 liberally:
Because the purpose of the notice of claim requirement is to give a school district prompt notice of claims to permit efficient investigation, substantial compliance with Education Law § 3813 is all that is required when the school district has been "sufficiently informed" of the claim. The notice must include the nature of the claim and the time when, the place where and the manner in which the claim arose. . . .
Saranac Lake Cent. Sch. Dist. v. New York Div. of Human Rights, 640 N.Y.S.2d 303, 304 (3d Dep't 1997) (quoting Deposit Cent. School Dist. v. Public Empl. Relations Bd., 633 N.Y.S.2d 607, 609-10 (3d Dep't 1995) (citations omitted)). At least one district court has held that a right-to-sue-letter from the EEOC is sufficient to satisfy the notice requirements of section 3813. See Kushner v. Valenti, 285 F. Supp.2d 314, 316 (E.D.N.Y. 2003). See also Biggers v. Brookhaven-Comsewogue Union Free Sch. Dist., 127 F. Supp.2d 452, 456 (S.D.N.Y. 2001) ("[T]he Court also finds that even if the plaintiff's EEOC filing constituted notice of her claim to the School District, that notice was not filed within the statutory three-month period.").


  A. Are Plaintiff's Claims Time-Barred?

  1. Reasonably Related Conduct

  Defendants argue that the claims brought in the instant action are reasonably related to the allegations set forth in plaintiff's 2001 EEOC Charge and are therefore barred because plaintiff failed to file a federal action within ninety days of that Charge. However, the 2003 EEOC Charge contains allegations which are distinct from those contained in the 2001 Charge. First, and principally, the 2003 Charge alleges discriminatory acts that occurred after January 30, 2001, the date the first Charge was filed. These acts include charges of failure to promote between January 2001 and May 2002. In addition, the only individual actor named in the 2001 Charge is Dr. Paves. The 2003 Charge names several additional individuals, namely Dr. Simons and Dr. Jeffrey Stromer.

  These new charges allege discrete acts of discrimination that cannot be considered reasonably related to the earlier charges. Cf. Narvarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 12 (S.D.N.Y. 1997) ("When a complaint alleges discrimination on a basis different from that contained in the EEOC Charge, the allegations in the subsequent complaint cannot be considered reasonably related to the EEOC Charge.") (citing Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994)). Therefore, the expiration of the ninety-day period triggered by plaintiff's receipt of her first right-to-sue letter will not preclude the instant suit to the extent that plaintiff's Complaint is based on allegations in the second Charge which did not appear in the first Charge. See Salerno v. City University of New York, No. 99 Civ. 11151, 2002 WL 31856953, at *4 (S.D.N.Y. Dec. 19, 2002) ("If defendants' argument were accepted [that plaintiff's Title VII claims should be dismissed in their entirety for her failure to file suit within ninety days of receipt of a right-to-sue letter in March 1991], the failure of an employee to file suit after filing an administrative charge of hostile work environment or retaliation would essentially give an employer carte blanche to mistreat an employee thereafter."). 2. Equitable Tolling

  Plaintiff argues for equitable tolling claiming that defendants' affirmative misconduct lulled her into inaction. Specifically, plaintiff claims that upon being elected Chairperson in April 2001, Dr. Simons assured her that she would no longer encounter the type of discrimination and harassment she endured while Dr. Paves was Chairperson of the department. But plaintiff's argument is untenable. In her 2003 Charge, plaintiff claims that Dr. Simons removed her as the department's Affirmative Action Officer shortly after his election. See 2003 Charge at 6. Dr. Simons also allegedly attacked plaintiff's credentials when she appeared before the Academic Review Committee on May 1, 2002. See id. at 6-7. Finally, plaintiff claims that Dr. Simons "perpetuated the abuse started by Dr. Paves." Complaint ¶ 33. Despite Dr. Simons' promise of a "new beginning," plaintiff was not lulled into inaction by any affirmative misconduct on the part of the defendants. Her request for equitable tolling is therefore denied.

  3. The Continuing Violation Doctrine

  Because the conduct contained in the second EEOC Charge is not reasonably related to the conduct in the first Charge, and because plaintiff is not entitled to equitable tolling, this Court must determine which claims are within the statute of limitations. In other words, does this Court has jurisdiction over all of plaintiff s claims or only those claims occurring on or after May 18, 2002, i.e., within three hundred days of plaintiff's March 14, 2003 EEOC filing? The question, then, is whether plaintiff's second EEOC Charge contains any allegations of hostile work environment falling within the 300-day period such that allegations falling outside that period remain actionable under the continuing violation doctrine.

  In her Complaint, plaintiff alleges that Dr. Simons "perpetuated the abuse started by Dr. Paves." Complaint ¶ 33. In her second EEOC Charge, plaintiff similarly alleged that until he retired on January 27, 2003, Dr. Simons carried on Dr. Paves' campaign of harassment. The acts attributed to Dr. Simons that can be seen as perpetuating a hostile work environment include his negative evaluation of plaintiff on May 2, 2001, his voting against her promotion to Associate Professor in March of 2002, and his questioning of her credentials when she appeared before the Academic Review Committee on May 1, 2002. All of these acts occurred before May 18, 2002 (300 days prior to the filing of the 2003 EEOC Charge). The only act occurring after May 18, 2002, which could possibly support a hostile work environment claim, relates to a "meanspirited parting letter" Dr. Simons sent plaintiff on January 21, 2003. Dr. Simons placed plaintiff's response to that letter in her personnel file in "an obvious attempt to taint [her] personnel file beyond repair." 2003 EEOC Charge at 8.

  Plaintiff has failed to show how that letter contributed to a "discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). While the letter incident may have been offensive, without a link to impermissible discrimination, it cannot resuscitate plaintiff's claims of hostile work environment which are outside the 300-day period. Accordingly, the instant action will be limited to those discrete discriminatory acts that occurred on or after May 18, 2002, namely, the denial of her promotion to Associate Professor, allegedly based on her age, race and gender, in May of 2002.

  B. Plaintiff's ADA Claim

  Plaintiff's Complaint can be read as implicitly bringing a claim under the ADA. See Complaint ¶ 30 ("In further retaliation, and in direct contravention of the ADA and common decency and without notice or explanation, Plaintiff's schedule was filled with classes in buildings at opposite ends of the campus."). It is undisputed that plaintiff failed to include any disability claim in either her first or second EEOC Charge. A claim of disability discrimination, premised upon a statute other than Title VII and arising from circumstances that do not relate to the pattern of discrimination alleged by plaintiff, cannot be considered reasonably related to the race, sex and age discrimination claims plaintiff brought before the EEOC. Because plaintiff failed to exhaust her administrative remedies with regard to a claim under the ADA, any such claim must be dismissed.

  C. Plaintiff's State and City Claims

  Defendants argue that plaintiff's state and city discrimination claims must be dismissed because plaintiff failed to file a notice of claim as required by the GML. While district courts may be split on the issue of whether the notice of claim requirement applies to discrimination claims, see Aggarwal, 2000 WL 172787, at *9, the Appellate Division, Second Department has stated that it is "well-settled law that a cause of action under the Human Rights Law is not categorized as a tort for notice of claim purposes." Picciano v. Nassau County Civil Serv. Comm'n, 736 N.Y.S.2d 55, 60 (2d Dep't 2001) ("Service of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria."). Deferring to the authority of the state courts on an issue of state law, I conclude that the notice of claim requirement does not apply to discrimination claims. Accordingly, plaintiff's state and local claims cannot be dismissed for failure to file a notice of claim.

  Nor can such claims be dismissed for failing to comply with the requirements of section 6224(2) of New York's Education Law. If receipt of a right-to-sue letter satisfies the requirements of section 3813, see Kusher, 285 F. Supp.2d at 316, by analogy it also satisfies the requirements of section 6224. Therefore, receipt of the July 14, 2003 right-to-sue letter and the filing of the underlying EEOC Charge sufficiently informed defendants of the nature of plaintiff s claims and demands. Accordingly, plaintiff's state and local discrimination claims will not be dismissed for failure to satisfy section 6224(2).

  While plaintiff's state and local claims cannot be dismissed for failure to comply with the GML or section 6224 of the Education Law, they are subject to the three-year statue of limitations applicable to discrimination claims. See Alimo v. Off-Track Betting Corp., 685 N.Y.S.2d 180, 181 (1st Dep't 1999) (finding plaintiff's claims pursuant to the SHRL and CHRL subject to a three-year limitations period). Accordingly, any state and local claims of discrimination that accrued prior to October 10, 2000, are time-barred.


  For the foregoing reasons, the motion to dismiss plaintiff's federal claims is granted as to all claims accruing before May 18, 2002. In addition, the motion is granted as to plaintiff's state and city discrimination claims to the extent that such claims accrued before October 10, 2000. Any ADA claim asserted by plaintiff is also dismissed. A status conference is scheduled for June 3, 2004 at 4:30 p.m. in Courtroom 15C. The Clerk of the Court is directed to close this motion (Document # 15).


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