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Serrano v. New York State Department of Environmental Conservation

United States District Court, N.D. New York

March 30, 2017

ALELIE SERRANO, Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and ERIC TUPAJ, LIEUTENANT, DIVISION OF LAW ENFORCEMENT, Defendants.

          OFFICE OF LOWELL R. SIEGEL LOWELL R. SIEGEL, ESQ. Attorneys for Plaintiff

          OFFICE OF THE NEW YORKJAMES SEAMAN, AAG STATE ATTORNEY GENERAL Attorneys for Defendants

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         Plaintiff, Alelie Serrano, commenced this suit against her employer, New York State Department of Environmental Conservation ("DEC"), and various DEC employees on October 24, 2012. Plaintiff was terminated from her position on January 25, 2013, and she filed an amended complaint on February 13, 2013. On December 20, 2013, the Court granted in part and denied in part Defendants' motion to dismiss, leaving the following claims: Title VII retaliation, hostile work environment, and disparate treatment against DEC; section 1983 equal protection claims against Defendants Gerould and Tupaj, individually; and New York Human Rights Law ("HRL") aid and abet claims against Defendants Gerould and Tupaj. See Dkt. No. 17. On February 23, 2015, the Court granted Defendants' motion to dismiss all claims against Defendant Gerould, leaving only Tupaj and DEC as Defendants. See Dkt. No. 31. Pending before the Court is Defendants' motion for summary judgment. See Dkt. No. 72-1.

         II. BACKGROUND

         Plaintiff was employed at DEC as a dispatcher from October 2006 until January 2013. See Dkt. No. 72-2 at ¶¶ 21-22, 590. During this time, Plaintiff was the only dispatcher at DEC of Puerto Rican/Hispanic descent. See Dkt. No. 9 at ¶ 30. One of the main reasons Plaintiff was hired was because of her fluency in Spanish. See Id. at ¶ 32. Plaintiff worked in the Ray Brook office from October 2006 until February 2010, when she was transferred to Albany. See Dkt. No. 72-2 at ¶¶ 21-22, 405.

         On March 4, 2008, Plaintiff filed a complaint with DEC's Affirmative Action Bureau claiming that she had been subjected to racial discrimination and a hostile working environment. See Id. at ¶ 48. On July 29, 2008, DEC Affirmative Action Officer Juan Abadia issued a memorandum recommending, inter alia, that the Ray Brook unit be provided with sensitivity and non-discrimination training. See Id. at ¶¶ 79-81.

         On August 29, 2008, Plaintiff filed her first complaint (Case No. 10127865) with the New York State Division of Human Rights ("DHR") charging DEC with unlawful discriminatory practices. See Id. at ¶ 97. On October 14, 2008, Plaintiff filed a second complaint (Case No. 10128843) with DHR again alleging discrimination. See Id. at ¶ 118. On March 23, 2009, DHR issued a report finding that "there is probable cause that Complainant may have been subjected to discriminatory treatment, including retaliation, and said treatment may be ongoing." Dkt. No. 11- 7 at 6. On March 25, 2010, DHR issued an order recommending dismissal of Plaintiff's two complaints (Case Nos. 10127865 and 10128843). See Dkt. No. 76-95. On October 14, 2010, the Commissioner of DHR issued a Notice and Final Order adopting the March 25, 2010 dismissal of those complaints. See Dkt. No. 76-96.

         On March 30, 2010, five days after DHR recommended dismissal of her two prior DHR charges, Plaintiff filed a third complaint (Case No. 10140417) with DHR, bearing Federal Charge No. 16GB002729. See Dkt. No. 72-2. In that complaint, Plaintiff alleged that she had been discriminated against in retaliation for filing her two previous complaints with DHR, see Dkt. No. 72-27 at 2, and because of her national origin, see Id. at 5. Plaintiff also referenced her two prior DHR complaints, see id., and specifically identified numerous acts in support of her claim, including the following: (1) DEC personnel denied her training opportunities, see Id. at 6, 11, 13-14, 21; (2) an aerosol can of "bullshit repellent" was placed on Sergeant Cranker's desk, see Id. at 12; (3) DEC employee Alicia Bodmer placed a photo of a target on Plaintiff's work station, see Id. at 20; (4) DEC employee Ann MacBride struck Plaintiff on the head with a stack of papers, see Id. at 16; (5) Plaintiff was provided limited opportunities to work overtime, see Id. at 16-17; and (6) MacBride placed a noose over Plaintiff's work locker, see Id. at 17. DHR determined that this charge did not establish probable cause of discrimination. See Dkt. No. 11-11. On February 14, 2011, [1] the Equal Employment Opportunity Commission ("EEOC") adopted DHR's findings on Plaintiff's third charge (EEOC Charge No. 16G-2010-02729) and issued a right-to-sue letter containing the following language: "This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost." Dkt. No. 72-31 at 37.

         On May 18, 2012, Plaintiff filed a charge of retaliation and discrimination based on her race/national origin with the EEOC (EEOC Charge No. 525-2012-00451). See Dkt. No. 72-2 at ¶ 472. That charge referenced "recent incidents" of retaliation, harassment, and disparate treatment that had occurred since the fall of 2011. See Dkt. No. 74-3 at 5. The EEOC determined it was "unable to conclude that the information establishes a violation of Federal law on the part of Respondent." Dkt. No. 11-2 at 2.

         On July 26, 2012, the EEOC issued a second right-to-sue letter, allowing Plaintiff ninety days to file a suit against DEC. See Id. at 3. Plaintiff commenced this action on the ninetieth day, October 24, 2012. See Dkt. No. 1. On January 4, 2013, Plaintiff filed what she describes as another hostile work environment and discrimination complaint with the Affirmative Action Bureau of DEC. See Dkt. No. 9 at ¶ 69. On January 25, 2013, Plaintiff was terminated via a letter signed by Director Peter Fanelli stating in part, "[t]he reasons for this decision include your persistent and unfounded complaints that have disrupted the workplace, conduct that undermined the mission of the unit, insubordination, and time and attendance concerns." See Dkt. No. 15-3 at 2; see also Dkt. No. 72-2 at ¶ 590.

         III. DISCUSSION

          A. Title VII Claims

         1. Statute of Limitations

         An employment discrimination suit under Title VII against the government must be filed within ninety days of receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e- 5(f)(1). "This requirement is strictly construed and a court may not extend the limitations period in absence of equitable considerations." Barna v. Morgan, 341 F.Supp.2d 164, 167 (N.D.N.Y. 2004) (citing Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)).

         If a plaintiff files an EEOC charge that is timely as to any incident of discrimination, the continuing violation exception permits courts to consider "'claims that the discriminatory acts were part of a continuing policy and practice of prohibited discrimination, '" Lugo v. City of New York, 518 Fed.Appx. 28, 29 (2d Cir. 2013) (quoting Valtchev v. City of New York, 400 Fed.Appx. 586, 588 (2d Cir. 2010)), so long as "'one act of discrimination in furtherance of the ongoing policy occurred within the limitations period, '" id. (quoting Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004)). However, while the continuing violation doctrine may toll the statutory period within which a claimant must file a complaint with the EEOC, it does not eliminate the requirement that a claimant must file her complaint in court within ninety days of receiving a right-to-sue letter. See Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 207 (E.D.N.Y. 2014) ("The Court . . . concludes that Plaintiff's continuing violation claim cannot revive her otherwise barred claim where she opted not to act within 90 days of her 2006 EEOC right-to-sue letter") (collecting cases); see also Torregiano v. Monroe Cmty. Coll., No. 11-CV-6300, 2015 WL 6641784, *10 (W.D.N.Y. Oct. 28, 2015) (holding that "a claimant may not 'revive' stale claims, which were not asserted in a district-court action within ninety days after receiving a right-to-sue letter, by re-asserting them in a new EEOC complaint and then obtaining a new right-to-sue letter").

         In the present matter, Plaintiff received a right-to-sue letter from the EEOC in February 2011, see Dkt. No. 72-31 at 37, in response to Plaintiff's complaint alleging that she had been discriminated against through March 30, 2010, see Dkt. No. 72-27 at 4, in retaliation for filing two two previous complaints with DHR, see Id. at 2, and because of her national origin, see Id. at 5. However, Plaintiff did not file the complaint in this action until October 24, 2012, well more than ninety days later. See Dkt. No. 1. Accordingly, to the extent Plaintiff relies on incidents that were a part of her March 30, 2010 DHR complaint, "they are barred from consideration by the Court because of Plaintiff's failure to sue within 90 days of receiving a right-to-sue letter in connection with those claims" except insofar as the Court may view those acts as "background information providing context for Plaintiff's claims." Bowen-Hooks, 13 F.Supp.3d at 206-07, 208.

         2. ...


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