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FRANCIS v. BLAIKIE GROUP

June 6, 2005.

HELEN G. FRANCIS, Plaintiff,
v.
THE BLAIKIE GROUP, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiff Helen G. Francis ("Francis"), pro se, brought this action against defendant The Blaikie Group claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), and the Employee Retirement Income Security Act, 29 U.S.C. § 1001 ("ERISA"). The Blaikie Group has moved, pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), to dismiss the Complaint for failure to state a claim upon which relief can be granted.*fn1 Specifically, The Blaikie Group argues that Francis's claims are barred by the applicable statutes of limitations.*fn2 Because the Court finds that Francis's claims are time-barred, The Blaikie Group's motion is granted.

I. BACKGROUND*fn3

  The Blaikie Group employed Francis as a comptroller for approximately three and a half years, beginning on April 13, 1992.*fn4 Francis alleges that, during that period, Colette Blaikie ("Ms. Blaikie"), an office manager at The Blaikie Group, "undertook a campaign of harassment, abuse, and unequal treatment of [Francis] in the terms and conditions of her employment" based on Francis's race and age. (Letter dated February 7, 1996 to Donald Blaikie from Rabner, Allcorn, Baumgart, Ben-Asher & Tucker*fn5 ("Rabner Letter") at 2.) Francis claims that she notified The Blaikie Group's president, Donald Blaikie ("Mr. Blaikie"), of Ms. Blaikie's alleged mistreatment of her and that he refused to take any remedial action. According to Francis, Ms. Blaikie's mistreatment of her and Mr. Blaikie's refusal to intervene resulted in constructive termination of Francis's employment with The Blaikie Group.

  Francis also alleges that The Blaikie Group violated ERISA and discriminated against her with respect to her compensation.*fn6 Specifically, she claims that The Blaikie Group: (1) failed to contribute to her 401K account for the years 1992 and 1993; (2) made insufficient contributions to her 401K account for the years 1994 and 1995; (3) failed to pay her an agreed-upon salary increase for 1995; (4) failed to pay her a bonus for 1995; (5) failed to timely effectuate a "profit sharing" agreement; (6) failed to timely effectuate a salary increase that was promised to commence in October 1993; (7) failed to pay her overtime to which she was entitled; and (8) "compensated [her] on a discriminatory basis throughout her employment." (Id. at 2, 4-6.)

  Francis first contacted the Equal Employment Opportunity Commission (the "EEOC") in December of 2003 regarding a potential claim for discrimination against The Blaikie Group. Francis filed a charge of discrimination with the EEOC on April 16, 2004. The EEOC dismissed Francis's charge on the grounds that it was not timely filed. By notice dated April 21, 2004 (the "EEOC Notice"), the EEOC informed Francis of its dismissal of her charge and of her right to file a lawsuit against The Blaikie Group on the basis of her charge within ninety days of her receipt of the EEOC Notice. Francis states that she received the EEOC Notice, which was postmarked April 22, 2004, on April 24, 2004. (See Pl.'s Mem. in Opp. at 2.) Francis filed her Complaint against Blaikie with the Court on July 21, 2004, eighty-eight days after the alleged receipt date.

  II. STANDARD OF REVIEW

  When considering a motion to dismiss pursuant to Rule 12(b) (6), the Court must accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences in favor of the non-moving party. See Securities Investor Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000). Dismissal of a case under Rule 12(b)(6) "is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004) (citation omitted). In addition, because Francis is a pro se plaintiff, her "pleadings should be read liberally and interpreted `to raise the strongest arguments that they suggest.'" Jafri v. Rosenfeld, No. 04 Civ. 2457, 2005 WL 991784, at *3 (S.D.N.Y. Apr. 26, 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).

  III. DISCUSSION

  A. TITLE VII AND ADEA CLAIMS

  "Under both Title VII and the ADEA, a claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (citations omitted). "An employment discrimination claim must be filed with the EEOC within 300 days of the alleged discrimination in a state, like New York, with a fair employment agency." Id. (citing 42 U.S.C. § 2000e-5(e); Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996)).*fn7 "[D]iscriminatory incidents not timely charged before the EEOC will be time-barred upon the plaintiff's suit in district court." Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999) (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal quotation marks omitted)).

  "The 300-day period starts to run when the claimant receives notice of the allegedly discriminatory act, not when the allegedly discriminatory decision takes effect." Moorehead v. N.Y.C. Transit Auth., No. 02 Civ. 8038, 2005 WL 31950, at *2 (S.D.N.Y. Jan. 6, 2005) (citing Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980); DeSalvo v. Metro. Opera Ass'n Inc., No. 96 Civ. 8292, 1997 WL 337517, at *2 (S.D.N.Y. June 19, 1997); Miller v. IT&T Corp., 755 F.2d 20, 23 (2d Cir. 1985)). The latest date on which Francis could claim to have received notice of an allegedly discriminatory act is the date on which she allegedly should have received her bonus for the year 1995, well over 300 days prior to the date Francis filed her EEOC charge in 2003. Francis claims, however, that The Blaikie Group's alleged violations continue through the present because The Blaikie Group still has not paid her the funds to which she claims to be entitled. (See Pl.'s Mem. in Opp. at 12.) "Under the continuing violation doctrine, `a plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations.'" Feldman v. Nassau County, 349 F. Supp. 2d 528, 536 (E.D.N.Y. 2004) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)). Thus, in order for the continuing violation doctrine to apply, "at least one act of discrimination must occur within the applicable 300-day statutory time period." De Brasi v. Plaza Hotel, No. 03 Civ. 5159, 2005 WL 1107058, at *3 n. 3 (S.D.N.Y. May 9, 2005) (citing, inter alia, AMTRAK v. Morgan, 536 U.S. 101, 117 (2002)).

  Although The Blaikie Group has continued not to pay Francis the sums to which she claims to be entitled, that continuing non-payment is better classified as "the mere continuation of a discriminatory act's effects," Ahmed v. Samson Mgt. Corp., No. 95 9530, 1996 WL 183011, *4 (Apr. 17, 1996) (quoting Association Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981) (internal quotation marks omitted)), rather than as a separate discriminatory act taken pursuant to a discriminatory policy. Therefore, the fact that the alleged original non-payment continued to occur within the 300 days prior to Francis's filing of the EEOC charge does not extend the filing period for acts committed prior to the commencement of that period. Other than continued non-payment, Francis does not claim that any other allegedly discriminatory acts occurred within the 300 days prior to her filing of the EEOC Charge. As result, even if the acts of which Francis complains were taken pursuant to a discriminatory policy, they would still be time-barred.

  Although "filing a timely charge of discrimination with the EEOC . . . is subject to waiver, estoppel, and equitable tolling," Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), Francis has not alleged, nor does the Court find, an adequate basis for relief from the limitation period on any of these grounds. Francis has not alleged that The Blaikie Group waived the limitation period. In order for a defendant to be estopped from asserting a statute of limitations defense, the plaintiff must allege "that some `conduct' by the defendant `caused him to delay bringing his [claim].'" Dillman v. Combustion ...


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