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Crisci-Balestra v. Civil Service Employee Ass'n

February 13, 2008

SALLY CRISCI-BALESTRA, PLAINTIFF,
v.
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, DEFENDANT.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Sally Crisci-Balestra ("Crisci-Balestra" or "plaintiff") filed the instant action pro se on April 19, 2007 against the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO ("CSEA" or "defendant") alleging age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the "ADEA") and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 42 U.S.C. § 2000e et seq. ("Title VII")*fn1 in connection with plaintiff's failure to obtain employment through defendant. CSEA moves to dismiss plaintiff's complaint pursuant to Federal Rule of Procedure 12(b)(6) on the grounds that Crisci-Balestra failed to timely exhaust her administrative remedies and to state a claim on which relief could be granted. For the reasons set forth below, the Court concludes that (1) plaintiff failed to demonstrate that she has exhausted her administrative remedies for the Title VII and ADEA claims; and (2) even assuming arguendo that the exhaustion requirement had been satisfied, her claims must be dismissed pursuant to Rule 8 of the Federal Rules of Civil Procedure because it is entirely unclear from her complaint what discriminatory acts she is alleging against CSEA and, thus, defendant does not have fair notice of the claims being asserted. However, the Court will provide plaintiff with an opportunity to re-plead and, if possible, demonstrate exhaustion and articulate her claims against CSEA.

I. FACTS

The following facts are taken from the complaint and are not findings of fact by the Court. The Court assumes these facts to be true for the purpose of deciding this motion and construes them in the light most favorable to plaintiff, the non-moving party.

In the complaint, Crisci-Balestra alleges:

I am basically discriminated against due to being a woman, credientialed and approaching `104' letters of response to interviews with little or no regard for talent, age, experience, degrees or 250 miles away from housing and family to be overlooked for someone 1/3 my age. Tier I best tier for retirement benefits ignored hired by credential in 1968 through "2006." All benefits for me at 100% medical and dental being denied.

(Compl. at 4.) According to the complaint, the allegedly discriminatory acts took place between 2003 and 2007 on "various dates of interviews through CSEA." (Compl. at 3.) In the area provided for Crisci-Balestra to specify the discriminatory conduct at issue, she checked the box next to "[f]ailure to hire." (Compl. at 3.) In addition, plaintiff indicated that she sought employment at the Pilgrim Psychiatric Center, the Babylon Clinic, and the Upper Manhattan Mental Health [Clinic/Hospital]. (Compl. at 2.)

The complaint states that plaintiff filed a charge with the EEOC between 2003 and 2007. (Id.) However, in the area of the complaint that provides boxes for plaintiff to indicate whether or not she received a right to sue letter from the EEOC, she checked neither box and, instead, wrote that the "city, state, and county has [sic] ignored me since 1990." (Id.)

Appended to the complaint is a letter addressed to the EEOC dated February 14, 2007 and labeled EEOC Charge No. 16-G-2006-00647" (the "February 14 Letter"), in which Crisci-Balestra "requested an extension of time so that [she] could obtain a lawyer and pursue this case." (February 14 Letter at 1.) This letter also states: "After contacting the EEOC and Ms. H. Woodyard, "Investigator," I was advised to physically go to U.S. District Court for the Eastern District of New York . . . to file in this Court tomorrow." (Id.)

Plaintiff also appended a letter addressed to the EEOC dated February 16, 2007 (the "February 16 Letter"). The February 16 Letter alleges additional facts, such as dates and locations of Crisci-Balestra's various job positions and health problems. Specifically, plaintiff alleges that she "traveled each year thousands of miles to respond to opening [sic] throughout the State on the same Grade 23 Level and never complained, but did not receive the position due to age discrimination!" (February 16 Letter at 1.)

II. PROCEDURAL HISTORY

Crisci-Balestra filed the instant action on April 19, 2007. Defendant filed the instant motion on July 26, 2007. However, plaintiff failed to respond to this motion by August 27, 2007, in adherence to the Court's briefing schedule, or to otherwise communicate with the Court. Consequently, by Order dated September 19, 2007 (the "September 19 Order"), the Court instructed plaintiff to submit a letter explaining her failure to adhere to the Court's briefing schedule. (September 19 Order at 1.) The Court warned Crisci-Balestra that failure to submit this letter could result in the Court's deciding CSEA's motion without plaintiff's opposition. (Id.) Plaintiff did not submit this letter and, to date, has not communicated with the Court.*fn2

III. STANDARD OF REVIEW

In reviewing a motion to dismiss under Rule 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969 (May 21, 2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974. Moreover, as plaintiff is appearing pro se, the Court shall "`construe [her complaint] broadly, and interpret [it] to raise the ...


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