Opinion
95 Civ. 9247 (MGC).
March 15, 2001.
MOHAMED ABDALLAH, Pro Se., Kingston, Pennsylvania.
MICHAEL D. HESS, Corporation Counsel of the City of New York, New York, NY, Attorney for Defendants.
OPINION
Plaintiff, a former accountant with the New York City Department of Transportation ("DOT"), brings this action pursuant to 42 U.S.C. § 2000, et. seq. ("Title VII"), New York State Executive Law § 296 (New York State Human Rights Law ("NYSHRL")), and 42 U.S.C. § 1983, alleging that defendants discriminated against him based upon his national origin and religion. Plaintiff also asserts claims against defendants pursuant to New York State Civil Service Law § 75-b ("Whistleblower Law") and for intentional infliction of emotional distress. Plaintiff alleges that the conduct complained of began in April 1988 and continued through September 1995. Plaintiff seems to assert all of his claims against each of the defendants.
Defendants have moved for partial summary judgment dismissing the portions of the complaint that allege conduct that precedes the period covered by the applicable statute of limitations. Additionally, the individual defendants argue that there is no individual liability under Title VII and the Whistleblower Law. The City of New York also argues that there is no municipal liability under § 1983 or for claims of intentional infliction of emotional distress, or for punitive damages. For the following reasons, defendants' motion for partial summary judgment is granted in part and denied in part.
A. Background
Plaintiff was employed as an accountant by the DOT at the Pier 76 Tow Pound from July 2, 1984 until the effective date of his retirement, September 23, 1995.
Plaintiff alleges that during the period between 1984 and 1985, a more senior accountant, Afaf Fam, "did propaganda" against him and wouldn't respond to his greetings. Plaintiff claims that Fam, an Egyptian-born Coptic, discriminated against him because he is an Epyptian-born Muslim.
In July 1988, Fam was appointed as DOT Associate Accountant at Pier 76 Tow Pound and became plaintiff's direct supervisor. In her performance evaluation of plaintiff for the period of July 1988 to December 1988, Fam gave plaintiff an overall rating of "very good," but she stated that plaintiff "needs to learn how to accept changes and new ideas to develop a better accounting system." Plaintiff asserts that Fam told him that in order to receive a promotion, he would have to "throw his values out the window."
In December 1988, plaintiff reported what he alleged to be corruption by Victor Rosen, DOT Chief of Violations Tow Services, Thomas Doyle, DOT Assistant Commissioner, and Fam. Plaintiff alleges that he met with Sharon Navetta of the New York City Department of Investigation ("DOI"), who offered him whistleblower protection.
Plaintiff alleges that at some point in 1988, he complained about Fam to the EEO officer at the DOT.
On February 21, 1989, plaintiff was reassigned to the Auction Unit and placed under the immediate supervision of Dorothy Maddix. At this time, plaintiff's work location was transferred to a trailer on the Pier 76 site. Plaintiff asserts that the trailer was "rat-infested" and "unheated." Plaintiff also claims that while he worked in the trailer, Joel Minisquero, the head of the Management Information Services department at the Pier 76 Tow Pound, acted as his supervisor and made several derogatory remarks regarding plaintiff's national origin. For example, plaintiff alleges that when he complained about the lack of heat, Minisquero commented, "make believe that you are at work in Egypt." Plaintiff also claims that when Minisquero denied him the use of a car, Minisquero told him to "buy a camel."
On January 8, 1990, plaintiff received a letter from Maxine Derkatch, Chief of the Whistleblower Unit at the DOI, advising that after an investigation by the DOI, his claims of corruption were found to be unsupported by the evidence.
Plaintiff asserts that he continued to work in the trailer, and was later transferred to a different trailer with other workers from the auction unit, until he suffered a stroke in June 1990. After plaintiff's return from the hospital, Bernard Turmond became his supervisor, and Turmond moved plaintiff from the trailer into an office within the Pier 76 building. Plaintiff alleges that he was threatened and mocked by Turmond.
In a letter dated November 2, 1991, plaintiff requested a meeting with Franklin Sepulveda, Associate Chief of Violation Tow Services, in order to discuss his failure to receive a merit raise.
In May 1992, John Musco was made deputy director of Pier
76. Plaintiff alleges that from May 1992 to May 1993, Musco denied him the use of a car, rejected plaintiff's ideas regarding implementing a cost-accounting system and required plaintiff to "punch in and out" while not requiring others to do so. Plaintiff also alleges that Musco blocked his attempt to obtain a job as a Technical Support Aide.
In May 1993, Fam once again became plaintiff's direct supervisor. During this period of supervision, plaintiff alleges that Fam ridiculed, harassed, and insulted him. Additionally, plaintiff asserts that Fam did not conduct an evaluation of him which, plaintiff contends, prevented him from obtaining a promotion or increase in salary. Plaintiff also alleges that Fam would not allow him to use her personal computer, that he was given an old computer that he threw in the garbage and that, unlike other employees, he was not permitted to attend a computer training class.
On January 6, 1994, plaintiff submitted an audit report of the auction unit. Plaintiff alleges that as a result of this report, defendants retaliated against him. Plaintiff alleges that the locks to the rooms that he shared with two other workers were changed and that he was not given a new key. On February 8, 1994, plaintiff's night assignment was switched to the Redemptions Unit — an assignment that plaintiff viewed as demeaning clerical work. In a memorandum to plaintiff, Fam explained that the change to the redemptions unit was necessary because the area in which plaintiff had been working at night was restricted because of security concerns. Plaintiff also alleges that on February 17, 1994, Musco told him that he would no longer be entitled to any overtime.
On March 31, 1994, Fam sent a memorandum to Doris Hooks in which she stated that Mr. Santos would replace plaintiff in auditing the Violation Tow Service' s weekly auction. Fam explained that Mr. Santos was a more senior accountant. Musco, in an April 12, 1994 memorandum to plaintiff, assigned plaintiff to the night shift in the redemption unit. Plaintiff alleges that while he was working in the redemption unit he was told by his supervisor, Dimitrius Rainey, that his filing duties were a "monkey's job."
On April 23, 1994, plaintiff suffered stroke-like symptoms while at work. Plaintiff alleges that he was told by one of his supervisors "to stay home the next time he was ill and not cause any trouble in her department."
Plaintiff last worked for the DOT on May 20, 1994. Thereafter, plaintiff was on sick leave, and on September 23, 1995, plaintiff was granted a disability retirement pursuant to Section 605 of the Retirement and Social Security Law.
On June 7, 1994, plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR"). The charge was alsoed with the Equal Employment Opportunity Commission ("EEOC"). In his charge, plaintiff alleged discrimination based upon his race, religion and national origin, and retaliation. On April 6, 1995, plaintiff's attorney requested that the NYSDHR issue a right to sue letter.
On May 19, 1995 and May 24, 1995, Margaret Martinez, an employee of the NYSDHR, sent letters to plaintiff, his attorney and the DOT, stating that "[a]t complainant's request, the Equal Employment Opportunity Commission sent him a Notice of Right to Sue letter," and that the NYSDHR would dismiss the complaint on the ground of administrative convenience. On June 19, 1995, the NYSDHR served plaintiff a copy of their Determination and Order dismissing his complaint. On October 30, 1995, plaintiff filed this action.
B. Standard for Summary Judgment
Summary judgment is authorized when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.p. 56(c). The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). This requires that the party opposing summary judgment "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
C. Statute of Limitations
1. Title VII, NYSHRL, § 1983
To be timely, a Title VII claim must be filed with the EEOC within 180 days after the discriminatory act complained of, or within 300 days if the plaintiff first filed the claim with a local or state equal employment agency. 42 U.S.C. § 2000e-5 (e)(1); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Claims which are not filed within this period are barred. In this case, plaintiff filed his charge of discrimination with the NYSDHR on June 7, 1994. Therefore, defendants argue that plaintiff can only recover pursuant to Title VII for adverse employment actions that occurred on or after August 11, 1993.
Pursuant to CPLR § 214, claims brought under New York State Executive Law § 296 are subject to a three year statute of limitations. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). Similarly, the statute of limitations for actions pursuant to 42 U.S.C. § 1983 is the statute of limitations for general personal injury actions in the state in which the claim is brought. 42 U.S.C. § 1983; Owens v. Okure, 488 U.S. 235 (1989). In Owens, the Supreme Court held that, for § 1983 claims brought in the State of New York, the statute of limitations for commencement of an action is three years. 488 U.S. at 251. Plaintiff filed this action on October 30, 1995. Accordingly, defendants contend that all claims for damages under the NYSHRL and § 1983 which arise from conduct alleged to have occurred prior to October 30, 1992 must be dismissed as untimely.
Plaintiff argues that the "continuing violation" doctrine applies here, and that all of the alleged acts of discrimination, including conduct dating back to 1989, are actionable in this suit. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (continuing violation doctrine applies to claims under Title VII); Marks v. New York University, 61 F. Supp.2d 81, 93 (S.D.N.Y. 1999) (continuing violation doctrine applies to NYSHRL); Petrosky v. New York State Dep't of Motor Vehicles, 72 F. Supp.2d 39, 55 (N.D.N.Y. 1999) (continuing violation doctrine "applies to section 1983 claims in this Circuit").
The continuing violation exception provides that: [A] plaintiff who files a timely [administrative] charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations.Lightfoot, 110 F.3d at 907. "[A] continuing violation may be found "where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Quinn, 159 F.3d at 766 (quotingCornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)). However, the Second Circuit has noted that multiple incidents of discrimination, even similar ones, which are not the result of a discriminatory policy or mechanism do not amount to a continuing violation. Id.; Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993).
In this case, plaintiff has failed to proffer evidence showing that the individual incidents of alleged discrimination constituted a continuing violation. Plaintiff complains of a number of instances of discrimination between 1989 and 1994. However, plaintiff has not proffered evidence of a relationship or connection among the alleged acts of discrimination. The conduct that plaintiff complains of involves discrete and isolated incidents of alleged discrimination, involving different individuals in different departments and different supervisors. The fact that some of these alleged discriminatory comments and conduct were similar does not sufficiently establish the presence of a policy or practice of discrimination to connect them. See Alleyne v. Four Seasons Hotel — New York, 2001 WL 135770 (S.D.N.Y. Feb. 15, 2001). Additionally, plaintiff's allegation that Fam discriminated against him for six months in 1988, and then again when she became his supervisor in 1993, does not show a continuing violation.
Moreover, plaintiff has not presented evidence that defendants were aware, and left unremedied, alleged discriminatory conduct such that it amounted to a discriminatory policy. In 1987 or 1988, plaintiff complained about Fam to an EEO representative at the DOT. In 1988, plaintiff spoke to Victor Rosen about reorganizing the accounting system. However, plaintiff does not claim that he mentioned Fam's alleged discriminatory conduct to Rosen at that time. Plaintiff asserts that he spoke with Sharon Navetta and Victor Rosen in 1989 about Fam's alleged discrimination. However, the fact that plaintiff expressed concern over Fam's actions in 1988 and 1989 is not sufficient evidence that the defendants continued to permit discrimination against plaintiff to go unremedied. From 1989 until 1993, plaintiff was not under the supervision of Fam, and plaintiff does not present any evidence that Fam continued to engage in discriminatory conduct against him during those years. Thus, plaintiff has failed to proffer sufficient evidence demonstrating the existence of a continuing violation. Accordingly, plaintiff cannot recover for allegedly discriminatory acts that occurred before October 30, 1992 for purposes of his § 1983 and NYSHRL claims, or for acts that occurred prior to August 11, 1993 for his Title VII claims.
2. Intentional Infliction of Emotional Distress, Whistleblower Law
Claims for intentional infliction of emotional distress are governed by a one-year statute of limitations. Tovar v. KLM Royal Dutch Airlines, 2000 WL 1273841, at *2 (S.D.N Y Sept. 6, 2000); Mariani v. Consolidated Edison Co. of New York, Inc., 982 F. Supp. 267, 273 (S.D.N.Y. 1997); See N.Y. CPLR § 215(3) (McKinney 2000) (intentional torts). Similarly, claims for retaliation pursuant to the Whistleblower Law must be commenced within one year of the alleged retaliatory act. N.Y. Civil "Service Law § 75-b(3)(c) (McKinney 2000); N.Y.Lab.L. § 740(4) (a) (McKinney 2000). Plaintiff filed this action on October 30, 1995, approximately 17 months after he last worked for the DOT. Accordingly, none of the alleged acts by defendants occurred within the one year limitation period. Therefore, plaintiff's claims for retaliation and intentional infliction of emotional distress are time-barred unless the statute of limitations was tolled by plaintiff's June 7, 1994 filing of a complaint with the NYSDHR and the EEOC.
There is a split among the judges of the Southern District on the issue of whether the filing of an EEOC or NYSDHR complaint tolls the statute of limitations for other state law claims. Compare Tovar, 2000 WL 1273841, at *2 (denying tolling for claim of intentional infliction of emotional distress complaint); Lamb v. Citibank, N.A., 1994 WL 497275, at *8 (S.D.N.Y. Sept. 12, 1994) (same); Swanston v. Pataki, 1999 WL 504905, at *5 (S.D.N.Y. July 15, 1999) (refusing to toll whistleblower claim while NYSDHR and EEOC claims were pending); Gray v. Shearson Lehman Bros., Inc., 947 F. Supp. 132, 136 (S.D.N.Y. 1996) (same); with Forbes v. Merrill Lynch, Fenner Smith, Inc., 957 F. Supp. 450, 456 (S.D.N.Y. 1997) (tolling statute of limitations for intentional infliction of emotional distress claim during pendency of EEOC complaint); Anderson v. Yarp Restaurant, Inc., 1996 WL 271891, at *2 (S.D.N.Y. May 21, 1996) (same); Brown v. Bronx Cross County Medical Group, 834 F. Supp. 105, 111 (S.D.N.Y. 1993) (same). However, I am persuaded by the reasoning of the opinions which hold that no tolling occurs.
The principal argument advanced in favor of tolling is that a failure to toll would undermine judicial efficiency and the pre-litigation dispute resolution goals of Title VII by forcing plaintiffs to commence litigation prior to receipt of permission from the EEOC. The Supreme Court has considered and rejected a similar argument in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975). In Johnson, the Court held that the timely filing of an employment discrimination charge with the EEOC does not toll the statute of limitations for claims brought under 42 U.S.C. § 1981. The Court stated:
Indeed, it is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his § 1981 claim into court before the EEOC has completed its administrative proceeding. One answer to this, although perhaps not a highly satisfactory one, is that the plaintiff in his § 1981 suit may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed. But the fundamental answer to petitioner's argument lies in the fact — presumably a happy one for the civil rights claimant — that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.Johnson, 421 U.S. at 465-66 (emphasis added). The remedies afforded by an intentional infliction of emotional distress claim, like those under § 1981, are clearly distinct from those available under Title VII and the NYSHRL. Additionally, the rationale for not tolling plaintiff's claims under the Whistleblower Law, based on a completely different set of facts and allegations from the discrimination claims, is even more persuasive. Moreover, state courts have jurisdiction over Title VII claims, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990), so that a plaintiff who wishes to litigate all of his claims in a single forum, may still do so in state court. Accordingly, plaintiff's claims for intentional infliction of emotional distress and under the Whistleblower Law are time-barred.
D. Individual Liability under Title VII
Plaintiff appears to assert his Title VII claims against each of the individual defendants. However, it is well-established that only the employer is subject to suit under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995). Accordingly, plaintiff's Title VII claims against the individual defendants are dismissed.
E. Municipality Liability under § 1983
The City of New York argues that plaintiff's claims under § 1983 cannot be asserted against a municipality since a municipality may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). Under Monell, a municipality may be liable under § 1983 only if the conduct that allegedly caused the unconstitutional deprivation was undertaken pursuant to:
a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers . . . [or] pursuant to governmental "custom" even though such custom has not received formal approval through the body's official decisionmaking channels.Id. at 690-91.
When a plaintiff complains about conduct that was not pursuant to a specific local policy, but rather was conduct attributable to an official whose acts represent official policy, the court must determine whether that official had final policymaking authority in the particular area involved. See, e.g., Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989); St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988) (plurality opinion); Pierce v. Netzel, 2000 WL 979165, at *3 (2d Cir. July 13, 2000); Jeffes v. Barnes, 208 F.3d 49, 56-57 (2d Cir. 2000).
Plaintiff asserts that John Musco, deputy director of Pier 76, denied him the use of a car, rejected his suggestions regarding a new accounting system, required plaintiff, but not other employees, to punch a time clock, blocked plaintiff's attempt to obtain a position as a technical service aide, denied plaintiff the ability to work overtime, and switched plaintiff to the night shift in the redemption unit. Plaintiff also alleges that Fam prevented him from obtaining raises and promotions, denied him use of a computer and the ability to attend computer class, changed certain locks and did not provide him with a new key, and reassigned him to the redemption unit.
Musco testified that, in 1992, he "oversaw the redemption office, the accounting section, and the auction unit" and that he "relied on Ms. Fam" to help him supervise the accounting unit. However, Musco also testified that he was "second-in-command at Pier 76" and that Shirley Pope was his superior. (Musco Dep., 11-12). Additionally, Fam was an Associate Accountant at Pier 76 and seems to have had some supervisory role among the accountants. Accordingly, while there is some evidence that Fam and Musco had some policymaking authority, the facts have not been sufficiently developed in the submissions on this motion for a conclusive determination as to who was the City's "final policymaker" with respect to decisions relating to plaintiff. There appears to be a genuine issue of disputed fact that cannot be resolved by summary judgment.
F. Punitive Damages
The City of New York asserts that punitive damages cannot be imposed against a municipality. Plaintiff seeks punitive damages for his claims under § 1983, the Whistleblower Law, NYSHRL and his claim of intentional infliction of emotional distress. As described previously, only plaintiff's NYSHRL and § 1983 claims remain viable against the City of New York. Punitive damages cannot be recovered against municipal defendants in § 1983 actions. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Additionally, it is well-settled that punitive damages cannot be recovered under the New York State Human Rights Law against any defendant. Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 499 (1992); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 50 n. 1 (2d Cir. 1998); Sprott v. Franco, 1997 WL 79813, at *16 (S.D.N.Y. Feb. 25, 1997). Accordingly, the City of New York's motion seeking to prevent plaintiff from recovering punitive damages against the City is granted.
G. Conclusion
For the foregoing reasons, defendants' motion for partial summary judgment is granted in part and denied in part. Plaintiff cannot recover under § 1983 or NYSHRL for discriminatory conduct that occurred prior to October 30, 1992 or under Title VII for acts prior to August 11, 1993. Plaintiff's claims for intentional infliction of emotional distress and retaliation under the Whistleblower Law are dismissed as time-barred. Plaintiff is not entitled to seek punitive damages against any defendant for NYSHRL claims or against the City of New York for claims under § 1983. Finally, since there is a genuine issue of material fact with respect to whether Musco and Fam had final policymaking authority, the City of New York's motion for summary judgment dismissing the claim under 42 U.S.C. § 1983 is denied.
SO ORDERED.