The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
The Plaintiff, Minnie White ("Plaintiff"), a former employee of the Administration of Children's Services ("ACS"), alleges in a complaint filed in New York County Supreme Court on November 6, 2009, discrimination against her on the basis of her race and national origin and the intentional infliction of emotional distress. Plaintiff's claims are against the City of New York ("City"); ACS; Cherrie Rostant, Plaintiff's Supervisor at ACS; Jorge Pastor, Director of Program, Third Party Review, ACS; and Local 371 Social Service Employees Union ("the Union") under New York Executive Law ("N.Y. Exec. L.") §296, 42 U.S.C. §§ 1981 and 1983. The Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all of the Plaintiff's claims.
Plaintiff is an African-American female born in the United States; she was a Third Party Case Reviewer ("Case Reviewer") with ACS. As a Case Reviewer, Plaintiff had to submit Case Review Summary Reports ("CRSR") to Cherrie Rostant, Plaintiff's supervisor, within five days of meeting with her child client at a Service Plan Review ("SPR") Conference. (Compl. ¶ 10.) Plaintiff was often late in submitting her reports. (Id. ¶ 11.)
Based on this conduct, around May 2005, Rostant gave Plaintiff a "conditional" rating on Plaintiff's evaluation from April 1, 2004 through March 31, 2005. (Id. ¶13.) Plaintiff appealed this "conditional" rating, and on August 4, 2005, the Assistant Commissioner of Adoption Services of ACS changed Plaintiff's evaluation from "conditional" to "good." (Id.)
On October 7, 2005, Ms. Rostant charged Plaintiff with five counts of misconduct in an internal ACS proceeding, and after an informal conference, a hearing officer recommended that Plaintiff be suspended for fifteen days. (Id.) The Employment Law Unit held a Step II hearing on February 27, 2006, and Plaintiff's suspension was reduced to three days. (Id.) In December 2006, Plaintiff retired.
In Plaintiff's unit, there were two other Case Reviewers, Pamela Campbell, who is of Jamaican origin, and Eileen Hayne, who is of Guyanese origin. (Id. ¶12.) Ms. Rostant, her supervisor, is from Trinidad. (Id. ¶ 13.) Plaintiff alleges that even though Case Reviewers' Campbell and Haynes also submitted their CRSRs late, they were not disciplined. (Id.)
On April 5, 2006, Plaintiff filed a complaint with the SDHR charging the City of New York and ACS with discrimination in violation of N.Y. Exec.L. § 296 and Title VII of the Civil Rights Act of 1964. On October 14, 2008, the SDHR determined there was no probable cause "to believe that [ACS] has engaged in or is engaging in the unlawful discriminatory practice complained of." (SDHR Determination and Order After Investigation.) It based its finding on evidence in the record that: (1) Plaintiff was "the only employee Ms. Rostant recommended for discipline; moreover no other African Americans were disciplined"; (2) the Plaintiff was chronically late in submitting her CRSRs; (3) the CRSRs were critical to the organization's mission; (4) the Plaintiff was "resistan[t] to supervision"; (5) the Plaintiff took off days without permission, including days in which she had a scheduled SPR conference, and without ensuring that alternate arrangements had been made to cover the conference; and (6) while other case reviewers were occasionally late with their reports, those other reviewers "willingly cooperated with supervision" to meet deadlines when possible. (Id.)
On November 6, 2009, Plaintiff filed her complaint in the Supreme Court of the State of New York, County of New York. On December 11, 2009, the case was removed to this Court.
In her complaint, Plaintiff alleges five causes of action: (1) the City of New York and ACS, in violation of N.Y. Exec.L. §296, discriminated against the Plaintiff based on her race and national origin and thereby constructively discharged her and forced her retirement; (2) Cherrie Rostant and Jorge Pastor discriminated against Plaintiff pursuant to 42 U.S.C. §1981; (3) the Union breached its duty of fair representation to Plaintiff; (4) all Defendants intentionally caused Plaintiff extreme and severe emotional distress resulting in depression, anxiety, and loss of sleep; and (5) all Defendants deprived Plaintiff of her civil rights under 42 U.S.C. §1983.
At the oral argument for this Motion to Dismiss, Plaintiff's attorney conceded that ACS is not a proper party in this lawsuit because it is a non-suable entity. (Transcript of Argument on June 22, 2010 ("Tr."), 16). The motion to dismiss all claims against ACS is accordingly granted.
A. Statutes of Limitations
The statute of limitations for claims pursuant to 42 U.S.C. § 1981 is four years. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004). The statute of limitations for claims brought under 42 U.S.C. § 1983 and N.Y. Exec. L. § 296 is three years. Id.; Shelford v. New York State Teachers Retirement System, 60 F.3d 811 (2d Cir.1995). The statute of limitations for the intentional infliction of emotional distress is one year, and the statute of limitations for ...