The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge.
AMENDED OPINION & ORDER*fn1
On November 14, 2005, Plaintiff, Ronnie Goss, proceeding pro se, filed a complaint against his former employer, West Side Federation for Senior and Supportive Housing, Inc. ("WSFSSH"), his former supervisor, Gladys Bernier ("Bernier"), and WSFSSH Human Resources Director, Lenoir Tucker ("Tucker") (collectively "Defendants") that alleged race, national origin discrimination, and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. On August 11, 2006, Defendants filed a motion to dismiss all claims.
Before that motion was fully briefed, law firm Clifford Chance LLP agreed to represent Plaintiff on a pro bono basis and an amended complaint was filed on November 14, 2006. That complaint reiterated the Title VII violations in the original complaint and added causes of action pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. as well as state law claims of intentional and negligent infliction of emotional distress. Plaintiff subsequently dropped the FMLA claim and the complaint was amended a third time, on consent. Defendants have now moved for summary judgment with respect to all claims. For the reasons stated below, the motion is GRANTED in part, and DENIED in part.
The facts set forth below, construed in favor of the Plaintiff as required on a motion for summary judgment, are as follows. On November 18, 1998, Ronnie Goss, an African-American male, was hired as a program aide on a per diem basis by WSFSSH, a community-based organization that provides affordable housing for low-income individuals. Laura Jervis Affidavit ("Jervis Aff.") ¶ 5. Goss was assigned to the West 129th Street site, an adult residence that houses homeless individuals, where he worked the night shift, two days a week. Ronnie Goss Affidavit ("Goss Aff.") ¶ 2. As a program aide, Goss was paid $10.00 per hour and was responsible for supervision and personal care of the residents. Marjorie Kaye Affidavit ("Kaye Aff."), Ex. 3. During this time, Goss also worked as a correctional officer at the Sing Sing Correctional facility. Goss Aff. ¶ 4.
Goss alleges that Bernier treated African-American employees less favorably than his Haitian co-workers and Bernier made disparaging remarks about African-Americans in front of the residents, for example, calling African-Americans lazy. Specifically, he alleges that he, and another African-American employee, were blamed for incidents caused by his Haitian coworkers, and African-American employees were paid less or not at all when the task authorized sick leave. Further, Goss also alleges that when he performed additional duties, he was not compensated accordingly whereas his Haitian co-workers were paid more money for extra services.
In 2002 and again in June 2003, Goss alleges that he asked Defendant Bernier to train him to dispense medication to the residents, a supervisory job that paid more. According to Goss, Bernier refused to promote him, stating that he was unqualified, despite his prior experience as a therapy aide, and instead, gave the position to a Haitian employee with no experience. Bernier maintains that Goss never asked for a promotion. Goss states that he reported these incidents to WSFSSH Human Resources Director, Lenoir Tucker, but nothing was done.
On or about May 19, 2004, while at Sing Sing Correctional Facility, Plaintiff injured his thumb, which required surgery. Def.'s Stmt. Facts ¶ 10; Goss Dep. 123:2-8. Goss informed both Defendants Bernier and Tucker of this and requested time from work as well as payment for his accrued sick time. He submitted two medical notes, on June 1, 2004 and again on June 24, 2004, that confirmed his inability to work until September 1, 2004. Kaye Aff., Ex. 4. Despite his request to use his accrued sick time due to his injury, Plaintiff alleges that Bernier gave him two options -- report immediately to work or be fired. Goss Aff. ¶¶ 9,13. Since he was unable to work and did not report as directed, Goss considered his position terminated as of May 19, 2004. Id. ¶ 14. However, there is no termination notice in Goss' employment file and Defendant Tucker, Human Resources Director, testified that it was her belief that Goss left voluntarily, and was not fired. Lenoir Tucker Deposition ("Tucker Dep.") at 164:13-19.
After leaving WSFSHH, Goss contacted Defendant Tucker and requested payment for his accrued sick, holiday, and vacation days. Goss Aff. ¶ 14. According to Goss, he only received partial payment for his holiday and vacation time during the summer of 2004, Id. ¶ 19, and still has payment for three days outstanding.*fn2 Kaye Aff., Ex. 7.
Following his purported termination, Goss states that he contacted a prepaid legal services agency and was informed that he must file a complaint with the Equal Employment Commission ("EEOC") to preserve his discrimination claim. Goss Aff. ¶ 15. Thus, after conducting research on the internet, he states that he completed a discrimination complaint and mailed it to the EEOC in the summer of 2004. Id. ¶ 18. Plaintiff reports that he did not keep a copy of the complaint but called the EEOC several months later, in early 2005, to ask about the status of his charge. Id. ¶ 21. At that time, he was informed that there was no discrimination complaint on file for him. Id. This complaint or any other documents associated with this complaint has not surfaced, either through the Freedom of Information Act ("FOIA") request Defendants' counsel submitted to the EEOC or provided by Plaintiff himself.
On April 18, 2005,*fn3 Plaintiff filed another discrimination complaint with the EEOC that alleged he was treated less favorably than employees of Haitian origin and was wrongly terminated by his supervisor, Defendant Bernier, who is also Haitian. Kaye Aff., Ex. 7. In a letter dated May 10, 2005, the EEOC investigator requested that Plaintiff resubmit his discrimination charge. Id., Ex. 8. Plaintiff did so on May 19, 2005. Id., Ex. 9. On July 28, 2005, the EEOC issued a right-to-sue letter on the basis that Plaintiff failed to file a timely complaint with the EEOC. Id., Ex. 10. Plaintiff then filed a pro se complaint in this Court on November 14, 2005.
Pursuant to Federal Rule of Civil Procedure 56, the movant on a motion for summary judgment must establish that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); See also Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment."). In ruling on a summary judgment motion, the Court resolves all ambiguities and draws all inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
It is well-known that in employment discrimination cases, where it is necessary to explore an employer's intent and motivation, summary judgment may not be appropriate. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Consequently, affidavits and deposition testimony must be scrutinized for circumstantial evidence, which if believed, would support a finding of discrimination. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, Plaintiff must still produce sufficient evidence in support of his claim so that a rational juror could find in his or her favor. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
1. Statute of Limitations
Pursuant to Title VII, an employer may not "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In order to bring an employment discrimination claim in federal court, the plaintiff must file a discrimination charge with the EEOC or an appropriate state agency. 42 U.S.C. § 2000e-5(b). For the claim to be timely under Title VII, the discrimination charge must be filed within 180 days of the alleged illegal employment action, or, in the case where the claimant has already filed a charge with a state or local agency, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1). The time begins to run when the claimant is on notice of the discriminatory act, not on the date the discriminatory act happened. See, e.g., Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 23 (2d Cir. 1985) (stating that the clock starts to run on a discriminatory discharge claim "when the employee receives a definite notice of the termination, not upon his discharge."). These timeframes serve as a statute of limitations for Title VII cases. See, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).
The parties dispute whether this claim is time-barred under Title VII. Although parties have completed discovery and trial, if necessary, is scheduled to begin on February 12, 2007, neither party submits much in the way of evidence in the form of affidavits, deposition testimony, or motion practice. Instead, it appears that both parties focus exclusively on the statute of limitations argument.*fn4
Goss asserts that he filed two complaints with the EEOC, one in the summer of 2004, and the second (a copy of which is in his EEOC file), on April 18, 2005. The first complaint was allegedly lost by the EEOC. However, Goss does not have a copy of that original complaint or any evidence, for that matter, that supports his claim that a complaint was sent to and lost by the EEOC in the summer of 2004. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1102 (9th Cir. 2002) (finding that a plaintiff may present evidence of agency error to demonstrate proper exhaustion of a Title VII claim). He provides no details with respect to the date of his filing or the individuals he spoke to at the EEOC to bolster his claim. At his deposition, he testified as follows:
A: [W]hen I first contacted EEOC, it was right after the incident, I think it was probably in the summertime of 2004. And I can't remember the guy's name who I was in contact with.
Ronnie Goss Deposition ("Goss Dep.") 51:5-10. As a result, I cannot credit the existence of the first complaint and will only consider the April 18, 2005 complaint.
Plaintiff claims that he was terminated by Defendant Bernier on or about May 18, 2004, after he requested time off to recover from his thumb injury, and in his most recent EEOC complaint he indicated that May 17, 2004 was the date of the last discriminatory act. Kaye Aff., Ex. 7. However, to this date, Goss has not received a termination notice from WSFSSH. Tucker Dep. 152:17-22. In fact, both Defendants Bernier and Tucker testified that they still considered Goss an employee for some time after May 19, 2004 and he has not, in fact, ever been fired by WSFSSH. Gladys Bernier Deposition ("Bernier Dep."), 109:13-19; accord Tucker Dep., 152:17-22. Thus, based on this alone, Goss' time to file his complaint with the EEOC has not yet begun to run.
Further, Plaintiffs' most recent discrimination complaint to the EEOC is littered with allegations of WSFSSH's failure to pay him his accrued sick and vacation time after his purported termination on May 19, 2004. In fact, he alleges that he is still owed money for approximately three vacation days. Kaye Aff., Ex. 9. These allegations, which apprise the EEOC of instances of discrimination after May 19, 2004, may also trigger the start of the clock at a later time. See, e.g., Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (stating that complaints to the EEOC should be read in light of the fact that their purpose is to put the EEOC investigator on notice as to Plaintiff's discrimination claims). In light of the muddled timeline as to when the clock started to run and when the EEOC complaint was actually filed, this aspect of the motion that seeks dismissal on statute of limitations grounds is denied.
2. Title VII Substantive Claims
Plaintiff brings several Title VII claims against his former employer WSFSSH, his supervisor, Bernier, and the Human Resources Director of WSFSSH, Tucker. While the Plaintiff is not barred from bringing these claims, Plaintiff's Title VII claims against the individual Defendants must be dismissed. Under Second Circuit law, "individuals are not subject to liability under Title VII," Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curium), citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) ("We now hold that individual defendants with supervisory control over a plaintiff may not be held ...