The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM DECISION AND ORDER
Plaintiffs Diane Kassner, Marsha Reiffe and Joseph Farrino
filed suit alleging claims for age discrimination, hostile work
environment and retaliation, under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and
under both the New York State Human Rights Law ("NYSHRL") and the
New York City Human Rights Law ("NYCHRL").*fn1
Plaintiff Diane Kassner is 80 years old and has been employed
as a waitress in defendant Second Avenue Delicatessen since 1986.
Plaintiff Marsha Reiffe is 61 years old and also has been
employed as a waitress in defendant Second Avenue Delicatessen
Plaintiff Kassner alleges in the complaint that, in 1999, she
was permanently assigned to work at a station located by the
bathroom and kitchen. It is also alleged that, in 1999, defendant
Lebewohl refused to assign plaintiff Kassner any weekend shifts.
Additionally, plaintiff Kassner alleges that defendant Lebewohl
and several of his subordinates have repeatedly made degrading comments toward her, including "drop dead," "retire early," "take
off all of that make-up" and "take off your wig."*fn2
Plaintiff Reiffe alleges in the complaint that, in 1999, her
work schedule was changed. She was removed from a Sunday shift
and told that she could only have two days off in a row if she
took them as Sunday and Monday. She had requested Monday and
Tuesday off, which she alleges, on information and belief, was
given to a younger waitress who was subsequently hired. Plaintiff
Reiffe also alleges that, in December, 2001, she was suspended
for four days without pay, for an incident involving a co-worker,
without defendants conducting a proper investigation. She also
claims to have been retaliated against for objecting to the age
discrimination policies affecting her work by defendants changing
her work hours and assigned station. She was assigned to work for
four consecutive days to the least profitable station usually
reserved for new employees. As further examples of discrimination and retaliation,
plaintiff Reiffe alleges that: (1) in January, 2002, defendant
Lebewohl changed her work station by assigning her to the counter
for four consecutive days; (2) in September, 2002, her Saturday
work hours were changed, from 12PM-5PM to 11AM-2:45PM, removing
her from the early dinner shift; and (3) in September, 2002, her
work station and hours on Tuesdays were changed from 11AM-3:45PM
Defendants move to dismiss all of the plaintiffs' claims as
either being barred by the applicable statute of limitations,
failing to allege that the acts complained of were age-based, or
failing to demonstrate that plaintiffs suffered an adverse
ADEA claims must be filed with the Equal Employment Opportunity
Commission ("EEOC") within 180 days after the alleged unlawful
employment practice occurred or if the aggrieved party instituted
proceedings with a state or local agency, within 300 days after
the discriminatory practice complained of occurred.
29 U.S.C. § 626(d)(1-2). The filing deadline is not jurisdictional, but
rather it is akin to a statute of limitations. Zipes v. Trans
World Airlines, Inc., 455 U.S. 385 (1982); Zerilli-Edelglass v.
New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003);
Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 59 (2d Cir.
1986). In contrast, claims under the NYSHRL and NYCHRL must be
filed within three years of the alleged acts of discrimination.
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997) (citation omitted); N.Y. City Admin. Code § 8-502(d).
Plaintiffs filed charges of discrimination with the EEOC on
December 20, 2002. They are, therefore, precluded from asserting
ADEA claims based on discrete acts which occurred prior to
February 23, 2002; 300 days before the filing of their EEOC
complaints. Since plaintiffs filed the instant complaint on
September 13, 2004, plaintiffs are barred, by the applicable three-year statute of
limitations, from asserting any discrete acts occurring prior to
September 13, 2001, in support of their NYSHRL and NYCHRL claims.
All of plaintiff Kassner's alleged acts on which her complaint
is based purportedly occurred in 1999, beyond the statutes of
limitations applicable to both her ADEA and state law claims.
Plaintiff Reiffe's claim based upon the change of her work
schedule in 1999 is similarly outside those applicable statutes
of limitations. Plaintiff Reiffe's alleged December, 2001 four
day suspension is outside the statute of limitations applicable
to ADEA claims.
Even though all of the discriminatory acts alleged in support
of plaintiff Kassner's claims are time-barred, both plaintiffs
attempt to circumvent the statute of limitations by alleging that
the discriminatory acts constitute a continuing violation.
Plaintiffs contend that all of their claims are timely because
plaintiff Reiffe cited that she was subject to discriminatory
acts which occurred within the statutory time period. Plaintiff
Kassner, however, fails to allege any requisite adverse
employment action which occurred within the applicable statute of
limitations period. Moreover, the alleged discriminatory acts
relied upon by plaintiff Reiffe are all discrete acts that cannot
support a finding of a continuing violation so as to extend the
limitation period. Lightfoot, 110 F.3d at 907 ("Discrete
incidents of discrimination that are unrelated to an identifiable
policy or practice . . . `will not ordinarily amount to a
continuing violation' unless such incidents are specifically
related and are allowed to continue unremedied for `so long as to
amount to a discriminatory policy or practice.'") (quoting Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.
More importantly, plaintiff Reiffe's allegations of
discriminatory acts occurring within the statute of limitation either do not amount to an adverse
employment action or are insufficient factual allegations to
infer that those actions were based upon her age. An adverse
employment action "is one which is `more disruptive than a mere
inconvenience or an alteration of job responsibilities.'"
Terry, 336 F.3d at 138 (quoting Galabya v. New York City Bd.
of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). "Examples of
materially adverse changes include `termination of employment, a
demotion evidence by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . .
unique to a particular situation.'" Id. (quoting Galabya,
202 F.3d at 640). Plaintiffs primarily complain of a number of shift
or work station changes that reduced their potential for tip
income. In addition to many of these allegations being
time-barred, none of the acts complained of by plaintiffs rise to
the level of a material adverse employment action. The claims of
both plaintiffs are therefore dismissed.
Plaintiffs seek to file a proposed amended complaint to cure
certain deficiencies, particularly with regard to the statute of
limitations. Leave to amend should be freely given when justice
dictates. Fed.R.Civ.P. 15(a); Rachman Bag Co. v. Liberty Mut.
Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995). It is appropriate,
in determining whether to grant leave to amend, to consider the
futility of the proposed amendment. Foman v. Davis,
371 U.S. 178, 182 (1962). "Where it appears that granting leave to amend
is unlikely to be productive, ? it is not an abuse of discretion
to deny leave to amend." Ruffolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993). Plaintiffs' proposed amended complaint adds few new factual
allegations.*fn3 It simply drops any reference to applicable
dates in an attempt to vaguely and generally refer to events
without any time reference. Such a proposed amendment may hide,
but cannot cure, any time-barred deficiencies. It therefore would
be futile. See, Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.
2000) ("Amendment would likely be futile if, for example, the
claims the plaintiff sought to add would be barred by the
applicable statute of limitations.").
Defendants' motion to dismiss is granted and the complaint is
dismissed in its entirety. Plaintiffs' motion to ...