United States District Court, N.D. New York
OF LOWELL R. SIEGEL LOWELL R. SIEGEL, ESQ. Attorneys for
OF THE NEW YORKJAMES SEAMAN, AAG STATE ATTORNEY GENERAL
Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
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.
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.
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.
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.
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,  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.
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.
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.
A. Title VII Claims
Statute of Limitations
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)).
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
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.