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Zustovich v. Harvard Maintenance

March 20, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


Plaintiff Fulvia Zustovich ("Zustovich") filed a Complaint in this Court raising various claims arising out of alleged discrimination on the basis of her national origin, race, age and retaliation against Defendants Harvard Maintenance, Inc. ("Harvard"), SPC Services, Inc. ("SPC"), Sage Realty Corporation ("Sage"), Sulo Lulanaj and Murat Mela (collectively, "Defendants"). Specifically, Zustovich brings the following claims: (1) national origin discrimination and retaliation under Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") against Defendants Harvard, SPC and Sage; (2) national origin and race discrimination and retaliation under 42 U.S.C. § 1981 against all Defendants; (3) national origin, race and age discrimination, hostile work environment and retaliation under the Executive Law of New York State, Article 15, § 296, against all Defendants; (4) national origin, race and age discrimination, hostile work environment and retaliation under the Human Rights Law of New York City, §§ 8-107 and 8-502 ("NYCHRL"), against all Defendants; and (5) intentional infliction of emotional distress against all Defendants. Defendants now move this Court to dismiss Zustovich's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. First, Defendants argue that Zustovich's Title VII claims must be dismissed because they are time-barred. Second, Defendants argue that all claims against all Defendants other than Harvard must be dismissed because Zustovich did not name those Defendants in her administrative complaint. Similarly, Defendants further argue that Zustovich's claims for race and age discrimination and hostile work environment based on age, race and national origin discrimination must be dismissed for failure to exhaust administrative remedies. Finally, defendants argue that Zustovich's claims for race discrimination and hostile work environment must be dismissed for failure to state a cause of action upon which relief may be granted under Rule 12(b)(6). For the reasons set forth below, Defendants' motion is granted in part and denied in part.


Zustovich is a female of Italian ethnic origin and descent, who was 62 years old at the time she filed her Complaint in this Court. Compl. ¶ 16. Zustovich has limited education and command of the English language; she can speak and read limited English, speaking with a pronounced Italian accent, but has particular difficulty writing in English. Id. ¶ 22; Declaration of Fulvia Zustovich ("Zustovich Decl.") ¶ 2.

In January 1996, Zustovich was hired as a cleaner at 747 Third Avenue (the "Building"), which is owned and managed by Defendant Sage. Compl. ¶¶ 13, 17. Defendant SPC, a commercial cleaning and janitorial company, was contracted by Sage to provide maintenance services at the Building. See id. ¶ 11. In turn, SPC subcontracted janitorial work to Defendant Harvard. See id. ¶ 9. Although Zustovich officially was an employee of Harvard, Sage, SPC and Harvard exercised some measure of control over plaintiff's employment and the ultimate decision to terminate her employment. See id. ¶¶ 9, 11, 13. At all times relevant to the Complaint, Zustovich's direct supervisor was Defendant Lulanaj, who was a Project Manager of the Cleaning Division of SPC. See id. ¶¶ 14, 20. Defendant Mela, who also exercised control over Zustovich's employment, was at all relevant times employed as Assistant Vice President of Harvard. Id. ¶ 15. Lulanaj and Mela are both of Albanian ethnic origin. Id. ¶¶ 15, 20.

Zustovich alleges, without contradiction, that at all times through her employment, she has had an excellent job performance and attendance record and received praise for superior job performance from various tenants. Id. ¶¶ 18-19. However, despite all this, Zustovich alleges that Lulanaj favored younger employees of Albanian ethnicity and decent. Id. ¶ 20-21.

In September 2005, after returning from a vacation, Zustovich complained to Lulanaj that the employee who had been assigned to her areas, who was Albanian, had not done her job, leading to an unreasonable increase in Zustovich's workload. Id. ¶ 23. Lulanaj failed to take any corrective action against the Albanian employee, instead telling Zustovich, "It's your job. Do it." Id. ¶ 24. In October 2005, Zustovich alleges that Defendants accused her falsely of not properly cleaning the floors in her designated areas, and she was subsequently issued a disciplinary notice. Id. ¶ 25. Zustovich alleges that the accusations were false, and that the disciplinary notice was issued in retaliation for her complaints that Lulanaj had engaged in favoritism toward Albanian employees. Id. ¶ 26. Zustovich demanded thatHarvard management retract the disciplinary notice and investigate the alleged favoritism in favor of Albanian employees, but Harvard refused to do so; it was only after Zustovich lodged an official grievance with her Union that Harvard agreed to withdraw the disciplinary notice. Id. ¶ 27-28.

Approximately one year after her initial complaint to Lulanaj, in September 2006, Zustovich was transferred from her regular post on the 23rd floor of the Building to another floor. Id. ¶ 29. Soon thereafter,the tenant on the 23rd floor, Silver Co., specifically requested that Zustovich be returned to the floor due to her excellent job performance.Lulanaj refused toauthorize her return. Id. ¶¶ 29-30. On October 18, 2006, Mela, with Lulanaj's knowledge, encouragement and support, terminated Zustovich's employment "effective immediately" on the grounds that he had received tenant complaints. Id. ¶ 31. That same day, Zustovich complained to Mela that she believed her termination to be the result of discrimination, and that if she had been Albanian she would not have been terminated; Mela failed to investigate her allegations of discrimination or otherwise to take remedial action. Id. ¶ 34. Zustovich then filed a grievance through her Union, after which her employment was reinstated with back pay and "displacement pay" of upwards of $8,000. See id. ¶ 35. Upon her return to work, Zustovich was transferred to another building, 420 Fifth Avenue, and alleges that her work assignments became more onerous and that she was denied building seniority, denying her the benefit of preference in such things as vacation scheduling. See id. ¶ 36.

Zustovich alleges that after her termination and removal from the Building, her position was filled by an Albanian woman in her thirties. Id. ¶ 38. Further, Zustovich alleges that, as of the filing of her Complaint, all but two employees employed as cleaners by Harvard at the Building were Albanian, and that despite complaints of inferior work performance and attendance of various Albanian employees, no Albanian employees were ever issued disciplinary notices. See id. ¶ 40, 42. Specifically, Zustovich alleges that Albanian employees who committed serious violations of workplace rules, such as sleeping or smoking on the job, making personal telephone calls, taking unauthorized breaks and destroying tenant property, were not disciplined or terminated. Id. ¶ 43, 44. In addition, Zustovich alleges that Albanian employees were afforded privileges not extended to non-Albanian employees, including preference in arranging vacation time without regard to building seniority. Id. ¶ 44.

Based on these allegations, Zustovich claims that during the period of her employment, Defendants "condoned and encouraged a policy and practice of discriminating against and harassing [her] on the basis of her race, ethnic origin, national origin and age; subjected plaintiff to a hostile work environment; failed to provide plaintiff with an adequate means of complaint and redress; and retaliated against plaintiff." Id. ¶ 48. As a result of this discrimination, Zustovich allegedly suffered humiliation, depression, severe anxiety, panic attacks, chest pain, hypertension, extreme emotional distress and a loss of income. Id. ¶ 49.

On or about November 7, 2006, Zustovich, proceeding pro se, filed a charge with the New York State Division of Human Rights ("DHR"), which was dual-filed with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination and retaliation by Harvard based on her Italian national origin. See Compl. ¶ 4; Zustovich Decl. ¶ 3. At the time of the filing of her agency complaint, Zustovich met with a human rights specialist at the DHR and orallydescribed the factual circumstances underlying her claims as best she could; the specialist prepared the charge based on Zustovich's description, and Zustovich reviewed the charge and signed it. Zustovich Decl. ¶ 3. The agency complaint detailed the discrimination Zustovich allegedly suffered at the hands of Lulanaj and Mela at the Building. Id. ¶ 4. At the time of her agency complaint, Zustovich alleges that she did not know, nor did she have any reason to know, that Lulanaj was employed by SPC and not Harvard. Id. Indeed, at her Union grievance hearing in 2006, she was informed that Mela, a Harvard employee, had "hired" Lulanaj; this led Zustovich to believe that Lulanaj, too, was employed by Harvard. Id. Only after the filing of her agency complaint did she learnthat it had been Sage Realty, the management company of the Building that had "demanded that Ms. Zustovich be removed from the premises." Id.

During the investigation of the DHR charge, a conference was held in which Lulanaj and Defendants' counsel participated. Id. ¶ 5. Also present was Linda Ayers, a tenant of the 23rd floor of the Building, who appeared as a witness on Zustovich's behalf. See id. Ms. Ayers informed the DHR investigator that Silver Co. never complained about Zustovich, and that Silver Co. in fact requested that Zustovich be reassigned to the 23rd floor due to her excellent work. Id. at ¶ 6. Ayers also told the investigator that after Zustovich was removed from the 23rd floor, she was replaced by a younger Albanian employee. Id. During that conference, the DHR specialist who had assisted in preparing the agency charge was advised of the shared responsibilities of Zustovich's supervisors, Lulanaj and Mela, over her employment; the identity of their respective employers, Harvard and SPC; and the role that Sage allegedly played in her termination. Id. at ¶ 5. The DHR specialist did not advise Zustovich that the caption of her DHR charge, which named only Harvard, should be revised to include the other parties involved. Id. It was therefore Zustovich's understanding that all persons involved were adequately named and/or represented at the proceeding. See id.

On or about January 28, 2008, the DHR issued a determination finding that there was probable cause to believe Defendants had engaged in discriminatory practices based on Zustovich's complaint. Compl. ¶ 5. Zustovich was informed that a public hearing was scheduled for April 14, 2008, and in March 2008, she retained counsel to assist her in removing her claims from the DHR and EEOC and to pursue them in federal court. Zustovich Decl. ¶ 8. Immediately upon retention, Zustovich's counsel requested that the DHR hearing be adjourned by sixty days to permit Zustovich to request a notice of right to sue from the EEOC. Declaration of Molly Smithson ("Smithson Decl.") ¶ 5, Ex. C. Upon Zustovich's request, the EEOC terminated its processing of the DHR complaint and issued a Notice of Right to Sue ("Right-toSue Letter") on April 3, 2008. Declaration of Perry S. Heidecker ("Heidecker Decl.") ¶ 19, Ex. B. On April 8, 2008, Zustovich's counsel filed a written request with the DHR to dismiss Zustovich's agency complaint for administrative convenience so that Zustovich could pursue her claims in federal court. Id. ¶ 21, Ex. B. By letter dated April 9, 2008, the DHR advised the parties that it was contemplating dismissal for administrative convenience and advised the parties that any objections to such dismissal were to be filed within fifteen days. Smithson Decl. ¶ 8, Ex. E. Defendants' counsel wrote to the Administrative Law Judge presiding over Zustovich's complaint to oppose dismissal. Id. ¶ 10. The DHR granted the request for dismissal on May 1, 2008. Id. ¶ 11, Ex. H. Following the ultimate dismissal of the DHR complaint, the EEOC sent a second Right-to-Sue Letter, dated May 14, 2008, less than 90-days after the first-issued Right-toSue Letter. See id. ¶ 12, Ex. I. Upon inquiry from the parties, the EEOC stated that it had no record of the issuance of the April 3 Right-to-Sue Letter, and had no copy of that letter in its files. Id. ¶ 20, Ex. L. Indeed, the EEOC wrote:

I am forced to conclude that we neglected to follow correct procedures when this Notice of Right to Sue was mailed out for our office . . . Our records do reflect, however, the issuance of a Notice of Right to Sue letter dated May 14, 2008, which is accurately reflected in our records. The Commission will consider the Notice of Right to Sue Letter dated May 14, 2008 as the ...

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