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GILBERT v. LEVY

United States District Court, S.D. New York


August 5, 2005.

MATILDA GILBERT, Plaintiff,
v.
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

Opinion

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 agency.

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'S CLAIMS

  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 defendants.

  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 further.

  The third and final psychiatric report found plaintiff fit to return to duty. As a result, plaintiff was reinstated on June 30, 1998.

  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.

  DISCUSSION

  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 11, 1998).

  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 barred.

  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 limitations.

  CONCLUSION

  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.

  SO ORDERED.

20050805

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