The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Mary T. Donlon, brings this action asserting claims of age discrimination and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA"), the New York State Human Rights Law, Executive Law §290 et seq.
("Human Rights Law") and 42 U.S.C. § 1983. Plaintiff brings the instant motion for a declaration that her filing of a charge of age discrimination and retaliation against defendants, the Board of Education of the Greece Central School District (the "Board"), Greece Central School District (the "District"), Steven L. Watts, Kathleen Pagano-Fuller, Barbaranne Tolomeo, Christopher Miller, and Kathleen Graupman (collectively "defendants") with the Equal Employment Opportunity Commission ("EEOC"), in January 2004, fulfills the notice requirement under New York Education Law §3813 as it relates to her State Human Rights Law claim, or alternatively, for an extension of time to serve a notice of claim under Education Law §3813(2-a).
For the reasons which follow, plaintiff's motion is granted in part and denied in part. This Court finds that plaintiff's EEOC filing dated January 31, 2004 is in compliance with the notice of claim requirements under Education Law § 3813. However, to the extent plaintiff's EEOC filing concerns alleged discriminatory or retaliatory acts three months prior to her filing, those claims are untimely. This Court further finds that plaintiff's request to serve a late notice of claim up to March 8, 2006 is untimely, to the extent it relies upon alleged acts of discrimination and retaliation prior to March 8, 2005. However, this Court grants plaintiff's motion for an extension to serve a late notice of claim with respect to plaintiff's State Human Rights Law claims arising between March 8, 2005 and March 8, 2006.
Plaintiff, Mary T. Donlon ("plaintiff"), has been employed since 1989 by the defendant District as a second grade school teacher and on June 12, 1990 was granted tenure. On January 31, 2004, plaintiff filed a Charge of Discrimination with the EEOC alleging discrimination and retaliation against the District.
Plaintiff asserts that a copy of the EEOC charge was forwarded to the District by the EEOC within ten days after the filing in accordance with the regulations. Thereafter, on September 13, 2005 the Buffalo regional office of the EEOC issued a letter of determination finding evidence of age discrimination and retaliation by the District against plaintiff. The EEOC issued a Notice of Right to Sue to plaintiff dated October 18, 2005.
On January 13, 2006 plaintiff commenced this action against defendants claiming age discrimination and retaliation in violation of the ADEA, the Human Rights Law and § 1983. Plaintiff amended her complaint on March 20, 2006. In her amended complaint, plaintiff asserts that she was subject to different terms and conditions of employment compared to her younger peers and such conduct is alleged to have occurred over a four year period beginning in 2002. Defendants have raised several affirmative defenses to plaintiff's claims including the fact that plaintiff's Human Rights Law claims are untimely and must be dismissed since she failed to file a notice of claim upon defendants as required by Education Law §3813.
Plaintiff argues that her EEOC filing against defendants on January 31, 2004 fulfills the notice requirement under Education Law §3813 concerning her State Human Rights Law claim. Moreover, plaintiff asserts that even if the EEOC filing is deemed insufficient to constitute a notice of claim her motion should be granted for the following reasons: the extension would not exceed the time limited for the commencement of an action under the Human Rights Law; defendants acquired actual knowledge of the essential facts constituting the claim within a reasonable time after those facts arose; and defendants will not be substantially prejudiced in maintaining their defense on the merits if the motion is granted. In the alternative, plaintiff moves this Court for an order extending the time to serve a notice of claim.
Defendants oppose the motion claiming that plaintiff's EEOC filing does not substantially comply with the notice of claim requirement of Education Law §3813. Furthermore, defendants claim that the bare allegations contained in the EEOC filing did not place the defendants on notice of the essential facts underlying plaintiff's claim, including the time when, the place where, and the manner in which the claims arose. Defendants also argue that plaintiff's application for an extension of time to serve a late notice of claim upon defendants should be denied because this Court lacks discretion to grant plaintiff's untimely request. According to defendants, an extension is unwarranted since the plaintiff has not offered any reasonable excuse for her delay, defendants did not have actual knowledge of her claims and have been substantially prejudiced by plaintiff's delay.
I. Plaintiff's EEOC Charge Substantially Complied With The Notice Of Claim Requirement Of Education Law Section 3813
Section 3813(1) of the New York Education Law requires litigants to file a notice of claim in advance of a suit against the Department of Education. "No action or special proceeding, for any cause whatever" shall be pursued "unless it shall appear by and as an allegation in a complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after accrual of such claim." See N.Y. Educ. L. § 3813(1). The purpose of this notice of claim requirement is to provide prompt notice of claims so that an investigation may be made before it is too late for the investigation to be effective. See Parochial Bus Sys., Inc. v. Bd. of Educ. of City of New York, 60 N.Y.2d 539, 547 (1983). The essential elements necessary in the notice are the nature of the claim, ...