United States District Court, S.D. New York
August 5, 2005.
MATILDA GILBERT, Plaintiff,
RICHARD LEVY, REG. DIRECTOR, MICHAEL COHEN, AREA SPVR. MICHAEL BURDI, REG. DIRECTOR WALTER McGUIRE, AREA SPVR. JOSE BURGOS, EMPLOYEE RELATIONS OFFICER, KEITH WILSON, DIRECTOR OF PERSONNEL, and NEW YORK STATE DIVISION OF PAROLE, Defendants.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Pro se plaintiff Matilda Gilbert, a former New York State
parole officer, brings this action under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging
discrimination based on race and sex. Defendants are the New York
State Division of Parole and six individuals employed by that
Defendants move to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b) or, alternatively for summary judgment under
Fed.R.Civ.P. 56, for the following reasons: (1) the Title VII
claims fail to state a cause of action against any of the
individual defendants, as enunciated in Tomka v. Seiler Corp.,
66 F.3d 1295 (2d Cir. 1995); (2) the individual defendants were
not served properly with process, and accordingly the court does not have
personal jurisdiction over them; and (3) the claims against all
defendants are barred by the applicable statute of limitations.
In her opposition papers on the motion, plaintiff does not
oppose the application to dismiss as to the individual
defendants. Therefore, this opinion will be limited to the issue
of the statute of limitations as to the Division.
Plaintiff filed her initial complaint on April 6, 2000
asserting race and gender discrimination. The sole defendant
named in the complaint was the New York State Division of Parole.
On August 4, 2000, plaintiff filed an amended complaint,
identical to the first, but added the six named individual
The following is a summary of the allegations in the amended
complaint and in plaintiff's Equal Employment Opportunity
Commission ("EEOC") filings, which were appended to the complaint
and amended complaint.
Plaintiff alleges that while she was employed as a New York
State parole officer, she reported to her supervisors on April
30, 1997 that she was being stalked in the field by unknown
individuals. Her EEOC papers also assert that she reported, in a
memorandum to her Area Supervisor dated May 1, 1997, that she was
being followed again. Plaintiff claims in her EEOC papers that
the handling of her reports of stalking did not follow proper
procedure because she was a black female and that "a white male
would have been handled differently."
On June 2, 1997 plaintiff was placed on involuntary
administrative leave due to concerns about her psychological
stability and was required to undergo psychiatric evaluation, and
was required to turn in her firearm at this time.
On July 21; 1997, plaintiff was declared to be mentally unfit
for the duties of a parole officer.
From July 23, 1997 to June 30, 1998 plaintiff was placed on
sick leave, exhausting her leave credit and not receiving salary
for some of that period.
Plaintiff claims that all these actions against her came about
because she was a black female.
According to plaintiff's amended complaint, plaintiff was
informed in September 1997 that a hearing was in the process of
being scheduled to determine whether she was fit to return to
work. This hearing was held on May 19, 1998. The hearing officer
recommended that she undergo another psychiatric examination.
Plaintiff was examined by a state doctor, who found that
plaintiff was unfit to return to work.
Plaintiff was examined by her own doctor, who found that
plaintiff was fit for return to her job as a Parole Officer.
The hearing officer was not satisfied with these two
evaluations and, in a report dated June 29, 1998, he ordered a
third and "independent, unbiased review of Ms. Gilbert's mental
status." The report further provided: Pending completion of such review, one of two courses
of action must be followed: should the review of Ms.
Gilbert prove favorable, deeming her mentally fit to
return to her usual employment as a Parole Officer,
she will be returned immediately to her full duties
as such, and pursuant to Section 72(5) of the Civil
Service Law, the Division of Parole [will] restore to
Ms. Gilbert any leave credits or salary that she may
have lost because of her involuntary leave status as
of July 1997, less any compensation she may have
earned in other employment or occupation and any
unemployment benefits that she may have received
during the period of involuntary leave; should the
independent medical examination reveal that Ms.
Gilbert is indeed mentally unfit to perform her
duties as a Parole Officer, the Division of Parole
may proceed with its regular course of action under
the Civil Service Law in addressing the matter
The third and final psychiatric report found plaintiff fit to
return to duty. As a result, plaintiff was reinstated on June 30,
In an August 11, 1998 letter the Division of Parole's Employee
Relations Officer, Jose Burgos, stated that he did not agree with
the recommendation of the hearing officer to restore leave and
pay for the entire period of time. Subsequently, the Division of
Parole determined not to restore all leave and pay. The
particulars of this are not in the present record. Plaintiff
alleges that the action of the Division was taken because she is
a black female.
Plaintiff commenced an administrative proceeding in the EEOC on
December 18, 1998. A right to sue letter was issued to plaintiff
on December 30, 1999.
Title VII provides that a plaintiff may not recover damages for discriminatory conduct that occurred more than 300 days before
the filing of a charge with the EEOC. 42 U.S.C. § 2000e-(5) (e)
(1); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d
Cir. 1998); Butts v. City of New York Dep't of Housing
Preservation & Development, 990 F.2d 1397, 1401 (2d Cir. 1993).
As applied to the facts in this case, the period of 300 days
before plaintiff's December 18, 1998 filing with the EEOC
commenced on February 21, 1998.
Paragraph 5 of the amended complaint states that the alleged
discriminatory acts occurred "5/27/05 and ongoing."
As described earlier, plaintiff's specific allegations of
discriminatory conduct were: inadequate investigation of her
reports of stalking, (commencing May 1997); placing plaintiff on
administrative leave requiring psychiatric evaluations, and
requiring her to turn in her weapon (June 1997); sick leave (July
1997 June 1998); refusal to restore full leave and pay (August
All claims of discriminatory acts which occurred before
February 21, 1998 are barred by the statute of limitations. All
claims of such acts occurring after February 21, 1998 are not
The claims as to inadequate investigation of her reports of
stalking (May 1997), placing plaintiff on administrative leave
requiring psychiatric evaluations, and requiring her to turn in
her weapon (June 1997) relate to discrete alleged events
occurring in 1997. These claims are clearly time barred. With regard to her time on sick leave the Court looks to the
triggering event, that is, the act of placing her on sick leave
in June 1997. Chardon v. Fernandez, 454 U.S. 6 (1981);
Delaware State College v. Ricks, 499 U.S. 250, 259 (1998);
Cameron v. United States Trust Co. of New York, 754 F.2d 109
(2d Cir. 1985).
The one remaining claim arises from the August 11, 1998 letter,
in which the Division refused to restore leave and pay for the
entire period of the sick leave, contrary to the recommendation
of the hearing officer. This letter was, of course, written
within the limitation period. However, the effect of the letter
was simply to affirm the action of the Division in connection
with the sick leave. Therefore, the triggering event was placing
plaintiff on sick leave in June 1997. Thus, the claim based on
the August 11, 1998 letter, is barred by the statute of
The motion to dismiss the case as to the individual defendants
is granted as unopposed. The motion to dismiss the case as to the
Division of Parole is granted on the ground that all the claims
against the Division are barred by the statute of limitations.
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