The opinion of the court was delivered by: Trager, J
Plaintiff, Ernest Jeter,*fn1 has worked for the New York City Department of Education ("DOE") as a guidance counselor since 1994. On July 27, 2006, Jeter brought this complaint alleging that defendants -- the DOE, the New York City Department of Investigation, and the Special Commissioner of Investigation for the New York City School District -- have discriminated against him because he is black and retaliated against him for engaging in protected activity. Jeter claims he is entitled to relief under: (1) the Fourteenth Amendment to the United States Constitution, (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (3) the civil rights provisions of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, (4) and New York Human Rights Law, Executive Law § 296.
This action is only the most recent of several judicial and administrative actions Jeter has brought against his employer for discrimination. In 1999, Jeter sued the DOE in this court alleging employment discrimination, and the DOE prevailed on summary judgment. In 2004, and again in 2005, Jeter filed complaints with the New York State Division of Human Rights ("DHR") and the United States Equal Employment Opportunity Commission ("EEOC"). Each court and agency that has considered Jeter's complaints has found the DOE not liable for discrimination.
Defendants have moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Jeter's current complaint, arguing that his claims are either untimely, barred by res judicata, or otherwise meritless as a matter of law. For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part.
(1). Jeter's First Action in this Court
Jeter filed his first complaint with this court on March 6, 1999. In it, he alleged that the DOE discriminated against him because of his race and disability, and in retaliation for grievances. Summary judgment was granted in favor of defendant because certain of Jeter's claims were time-barred, and Jeter could not establish a prima facie case for those claims that were timely. Jeter v. New York City Dep't of Education, No. 99 Civ. 2537 (E.D.N.Y. Mar. 30, 2004). Jeter did not appeal.
(2). Jeter's Claims with the DHR and the EEOC
In 2004 and 2005, Jeter filed two complaints with the DHR against the DOE alleging employment discrimination ("DHR I" and "DHR II").
Jeter filed DHR I on July 6, 2004, alleging that the DOE treated him differently from his white colleagues because he is black and had previously complained of discrimination at the DOE. Specifically, Jeter's DHR I complaint alleged the following:
1. I am a Black male who filed a previous complaint with EEOC in or about 1998.
2. In 1994, I was hired by [the DOE] as a Guidance Counselor. My time, attendance and work performance have been satisfactory during my employment.
3. For the past five years, I have been a counselor at P.S. 811K at 286K, located in Brooklyn, NY. My immediate supervisor during this time has been Rachel Henderson, female, who is Black. There is only one other counselor, Steve Lent, who is a White male.
4. In October 2003, my caseload was increased from 30 students to 82 students by Rachel Henderson. On information and belief, I was the only one who had an increase in my caseload.
5. In March 2004, my caseload was increased again. I was informed by Margo Levy, female, White, who is the Supervisor of Social Workers that the increase was mandated by the Superintendent.
6. In May of 2004, I was written up for insubordination. I was accused of not performing the duties of my job. I contacted the union and the matter is still pending. On June 30, 2004, I received my evaluation which rated me satisfactory, but rated my attendance unsatisfactory.
7. I believe I am being treated differently because I am a Black male who previously filed a complaint with the EEOC. Other non-Black counselors are not treated in this manner. Defs.' Decl. Supp. Mot. Dismiss at Ex. F ("Jeter's DHR I complaint").
Jeter filed DHR II on August 11, 2005, alleging that the DOE had retaliated against him for his DHR I complaint. Specifically, Jeter's DHR II complaint alleged the following:
1. I filed prior complaint with the New York State Division of Human Rights. Because of this, I have been subject to unlawful discriminatory actions.
2. Since April, 2005, I have been assigned to the District Office at 400 First Avenue, New York, NY 10010.
3. In September, 2004, I have been treated disparately from other related service providers. Every Monday during the 2004-5 school year, my records have been checked and I receive warning letters and counselings in regard to the records by Francine Dryfus, Local Instructional Superintendent, whereas no other related service provider undergoes such scrutiny. To my knowledge, no formal ...