The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.
Plaintiff Hillary Grant, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Plaintiff was employed by defendant, the New York City Department of Education, as a part-time guidance counselor. Grant alleges that the Principal at the school to which plaintiff was assigned, Ms. Lillian Druck, discriminated against her on the basis of race and national origin and retaliated against her for engaging in protected activity. Defendant has moved to dismiss the Complaint, contending that plaintiff has failed to timely file a charge with the Equal Employment Opportunity Commission ("EEOC") in compliance with 42 U.S.C. § 2000e-5(e)(1) and that plaintiff's claim in this court is therefore barred.
Plaintiff, an African American female, was employed as a part-time guidance counselor by the New York City Department of Education ("DOE") beginning in October of 1987. (Compl. Exh. 7, "Hillary Grant's Statement"). Beginning on September 3, 2002, and lasting through February 24, 2003, when she was formally transferred, plaintiff was assigned to P.S. 199 as a guidance counselor. (Compl. Exh. 10, DOE position stmt. in Charge No. 160-2005- 00854 at 2) Plaintiff alleges that throughout her tenure at the school, she was subjected to repeated racially negative comments and verbal reprimands from Principal Druck. Plaintiff also alleges that Druck twice threatened Grant with removal from the school, once stating "I do not want you working here because you are not white." (Compl. Exh. 6, "Grant Aff." at 9-10, 13)
In her Affirmation submitted annexed to the Complaint, plaintiff details an incident in December 2002 when Druck assigned her a case for counseling involving bullying of one student by another. Although Grant was not informed of it at the time, the bullied student had also made sexual abuse allegations against another teacher at P.S. 199 and there was a criminal investigation ongoing. (Grant Aff. at ¶ 14) Grant appears to have begun to conduct her own investigation regarding the alleged abuse, leading to a complaint to the Queens District Attorney against her by a parent of a student. The complaint was referred to the Special Commissioner of Investigation ("SCI") for the school district, which operates independently from defendant, and charges were eventually brought against Grant by the SCI's Legal Services Branch. These charges were the subject of an arbitration in which Grant was found "guilty" on one charge, fined and permitted to return to work. (Compl. Exh. DOE letter at 3-4) Reading plaintiff's complaint, and the documents submitted annexed to the complaint liberally, it appears that plaintiff views the SCI proceeding and subsequent arbitration as related to defendant's bias against plaintiff based on her race. However, plaintiff does not allege in her complaint that any violation of Title VII is attributable to the SCI proceeding or the subsequent arbitration. Further, plaintiff does not allege that defendant was involved in any aspect of the SCI investigation which was initiated by the Queens District Attorney.
The form Complaint filed by Grant, and presumably given to her by this district's pro se office, alleges that all discriminatory acts occurred on October 16, 2002. (Compl. ¶ 5) Plaintiff further states that the last time that she was present at P.S. 199 was January 6, 2003. (Grant. Aff. ¶ 18)
Grant filed a Charge of Discrimination with the EEOC on January 31, 2005. (Blauschild Dec. Exh. 1) On August 31, 2005, the EEOC issued a letter to Grant dismissing her charge as time-barred. (Compl. Exh.1) The EEOC's dismissal letter states that Grant's charge was filed outside of the 300-day filing window required under applicable law. (Id.) More specifically, it states that, because all events relating to plaintiff's charges occurred during or prior to January of 2003 and the EEOC charge was not filed until January 31, 2005, Grant's charge was untimely filed. Grant has not filed a claim alleging discrimination by defendant with any state or local agency.
In her Complaint, Plaintiff now alleges that, to the best of her recollection, a charge asserting discrimination by the defendant was first filed with the EEOC in January 2003. (Compl. ¶ 10) However, no record of that filing has been found in the records of the EEOC, the New York State Division of Human Rights ("NYSDHR") or the New York City Commission on Human Rights ("NYCCHR"). (Def. Mem. at 5 n.4; Blauschild Dec. Exh. 2, 3)
The Complaint in this action was filed on December 2, 2005. On July 3, 2006, defendant moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), contending that plaintiff's failure to timely file with the EEOC means that plaintiff has failed to state a claim under Title VII. Plaintiff was served with the Notice to Pro Se Litigants as required under Local Rule 12.1. On July 24, 2006, I issued an Order directing Grant to respond to defendant's motion by August 9, 2006, but later extended that date, per plaintiff's request, to October 3, 2006. (Docket 9, 10)
On October 3, plaintiff requested an additional day to file responsive papers which I granted. No answering papers were submitted by plaintiff.
On November 7, 2006, I issued an Order directing Grant to submit any response to defendant's motion by November 21, 2006, and stated that if no submission from plaintiff was received, the motion would be decided on defendant's papers. (Docket 14) Again, plaintiff made no submission. On December 19, 2006, I issued a third Order again directing plaintiff to submit any responsive papers by January 10, 2007. (Docket 15) In a phone call to Chambers following her receipt of my December 19 Order, Grant asserted that she had mailed papers responsive to the defendant's motion to the Court's pro se office. However, those papers were never received by that office or in Chambers. Plaintiff was then directed to resubmit any papers to the pro se office or, alternatively, to fax a copy of any papers to Chambers.
In a letter dated January 9, 2007, plaintiff requested an additional week to submit responsive papers to the court. I again granted her request. To date, the docket sheet reflects no submission from Grant and no papers have been received in Chambers or by the Court's pro se office. ...