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Klein v. New York University

August 14, 2008


The opinion of the court was delivered by: Robert L. Carter, U.S.D.J.


Currently before the court is defendant's motion to dismiss portions of plaintiff's first and second claims for relief pursuant to Rule 12(b)(1), F.R. Civ. P., and plaintiff's third claim for relief pursuant to Rule 12(b)(6), F.R. Civ. P. For the reasons herein, the court denies defendant's motion to dismiss the aforementioned claims.


Plaintiff began working at the Leonard N. Stern School of Business ("Stern") at New York University ("NYU") as a visiting professor in 1987. She accepted a full-time, tenure-track position in 1989. Plaintiff was granted tenure in 1992, and has been an associate professor of accounting since that time.

Plaintiff alleges that defendant engaged in gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.*fn1 Plaintiff alleges: that she was denied a promotion to full professor in 1999 because of her sex; she was rejected for three faculty fellowships in 1999, 2002, and 2005; a senior faculty member propositioned her for sex while she was considered for tenure in 1992; and she received an inadequate raise in 2005 because of her sex.

Plaintiff also alleges that NYU violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d).*fn2 Specifically, plaintiff alleges that she has been retaliated against for signing a petition regarding gender issues at Stern; her request to teach in the accounting Ph.D. program was denied; a Ph.D. advisee informed her that he was pressured to exclude her from chairing his dissertation committee; her requests for a better office have been denied; she has received onerous teaching schedules; she was denied a faculty fellowship and is not being considered for promotion to full professor; and her requests for campus housing have been denied. In support of this claim she argues that her work performance is superior to the work product of male tenured professors, yet she received a mere three percent raise in 2005, while "similarly situated male co-workers" received substantially higher raises.

On April 17, 2006, plaintiff filed a charge of discrimination with the EEOC against NYU. The EEOC sent plaintiff a right to sue letter regarding her complaint. Thereafter, plaintiff filed another charge of discrimination against NYU with the EEOC on December 29, 2006. Plaintiff filed her initial complaint in this case on January 9, 2007. The EEOC issued a right to sue letter with respect to the second charge on March 20, 2007. Plaintiff filed an amended complaint on April 13, 2007.


1. Title VII Claims

A complaint may be dismissed pursuant to Rule 12(b)(1), F.R. Civ. P., when "the district court lacks statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When a complaint is challenged pursuant to Rule 12(b)(1), F.R. Civ. P., for lack of subject matter jurisdiction, a court must accept the factual allegations made in the complaint as true, drawing reasonable inferences in favor of the plaintiff. See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). A district court may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits. See State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 75 (2d Cir. 2007).

Timely filing of a charge of discrimination with the EEOC is a prerequisite to filing a Title VII complaint in federal court. See 42 U.S.C. § 2000e-5(b). In New York, a plaintiff must file a charge of discrimination with the EEOC within three hundred days of the alleged discriminatory or retaliatory conduct. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). The three hundred day period serves as a statute of limitations, and claims regarding acts that occurred more than three hundred days prior to the employee's initiation of administrative review are thus time-barred. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001).

However, the statute of limitations may be extended if the plaintiff has suffered a "continuing violation." Accordingly, if plaintiff has been subjected to a continuous practice and policy of discrimination, the statute of the limitations is not tolled until the last discriminatory act in furtherance of the policy or practice occurred. See Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004). The continuing violation doctrine applies to claims of a very limited scope. The United States Supreme Court held that Title VII claims that seek recovery for discrete incidents of discrimination may not be reviewed under the continuing violation doctrine. National

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 153 (2002). The Court identified "termination, failure to promote, denial of transfer, or refusal to hire" as example of conduct that comprise a "discrete discriminatory act." National, 536 U.S. at 122. However, where the plaintiff alleges that the defendant has created a hostile work environment, the continuing violation doctrine is applicable. Id. at 103.

Defendant claims that plaintiff's allegations of discrimination and retaliation are untimely because plaintiff filed her initial charge with the EEOC more than three hundred days after the occurrence of the acts. See Def's Mot. to Dismiss, at 4. Defendant argues that the court lacks subject matter jurisdiction over plaintiff's untimely claims. Plaintiff contends that the separate acts of ...

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