Akinolav.New York City Admin. for Children's SVC

United States District Court, S.D. New YorkJul 11, 2007
06 Civ. 8248 (DLC) (S.D.N.Y. Jul. 11, 2007)

06 Civ. 8248 (DLC).

July 11, 2007

Pro Se Plaintiff: Akinyemi Akinola, Hempstead, NY.

For Defendant New York City Administration for Children's Services: Carolyn Walker-Diallo, Assistant Corporation Counsel, City of New York Law Department, New York, NY.


DENISE COTE, District Judge

Plaintiff Akinyemi Akinola ("Akinola") brings this pro se action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 12112 et seq. ("Title VII"), alleging employment discrimination by the New York City Administration for Children's Services ("ACS"). ACS has moved to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P., on the ground that Akinola's action is untimely. The motion is granted in part.


The following facts are taken from the plaintiff's amended complaint, the exhibits attached to it, and the right-to-sue letter Akinola received from the Equal Employment Opportunity Commission ("EEOC"). Akinola identifies himself as African-American and alleges that he has been denied promotions and pay increases on the basis of his race. He complains that two fellow employees, Edmond Ghoughassian ("Ghoughassian") and Quddus Shaikh ("Shaikh"), have received preferential treatment as a result of discrimination. It appears that all three work as architects or on capital projects at ACS.

In 2001, Akinola applied for and was denied a promotion to Associate Project Manager ("APM") Level 3. The job was given to Ghoughassian, a Caucasian part-time employee.

In November 2002, ACS placed Akinola on the bottom rung of its company organizational chart, as an Assistant Project Manager. This title applies to college interns. In December 2002, Akinola was transferred out of his office based on allegations that the outgoing Acting Director and Ghoughassian had problems with him. Akinola was never notified of any such problems before the transfer.

Through an arbitration award on November 27, 2003, Akinola was retroactively promoted as of two years earlier to APM Level 2. Akinola also alleges that "[o]ften in the past" ACS employees of African American descent had been told that they "couldn't be trusted to hold higher level positions that [they] were qualified for," and that open positions were first offered to Caucasians.

In June 2004, Shaikh was given a promotion. Apparently with regard to this promotion, Akinola alleges that Shaikh was not the most qualified applicant. In March 2005, Shaikh was promoted once again, this time to the position of "Director of Leasing Unit."

Akinola's complaint generally requests that Ghoughassian and Shaikh be fired from any employment with the City of New York and that they repay the difference between the salaries they received and the salaries to which Akinola believes they were entitled, presumably to redress the alleged past discrimination that led to their promotions. While Akinola may seek damages from the defendant for discriminatory treatment that he received, he will not be able to obtain any judgment requiring the City to fire others or requiring other employees to repay wages they have received.

Shaikh received another promotion on July 25, 2005, which Akinola describes as "the civil service title of Associate Project Manager Level 2." Even though Akinola and Shaikh are both classified at APM Level 2, Shaikh makes $16,363 more than the plaintiff.

While the amended complaint alleged that this promotion was given on September 10, 2005, Akinola asserts in his Opposition to the Motion to Dismiss that the date is July 25, 2005. The question of which date has been alleged does not prove material to the issue of timeliness.

On December 21, 2005, Akinola filed his first charge of discrimination with the EEOC and the New York State Division of Human Rights ("NYSDHR"). The EEOC dismissed the complaint and issued a right-to-sue letter dated July 5, 2006. Akinola alleges that he received the right-to-sue letter on July 12. He filed the instant action on October 10.


ACS argues that Akinola's claims are time barred because (1) Akinola did not file his complaint with the NYSDHR within 300 days of the discriminatory acts of which he complains, as required by 42 U.S.C. § 2000e-5(e)(1), and (2) he did not file his federal action within ninety days of receipt of an EEOC right-to-sue letter, as required by 42 U.S.C. § 2000e-5(f)(1).

Timeliness of NYSDHR Complaint

"A complainant has 300 days from the date of the alleged unlawful employment practice to institute proceedings with a state or local agency. Otherwise, the complainant has only 180 days from the date of the alleged unlawful employment practice to file a complaint with the EEOC." Forsyth v. Federation Employment Guidance Serv., 409 F.3.d 565, 572 (2d Cir. 2005),abrogated on other grounds by Ledbetter v. Goodyear Tire Rubber Co., Inc., 127 S.Ct. 2162 (2007).

A Title VII claim based on a discrete act must be timely filed with the EEOC after a "discrete act" of discrimination has occurred.

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. . . . The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as evidence in support of a timely claim.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Discrete acts include terminations, failures to promote, denials of transfer, and refusals to hire. Id. at 114; see Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004) (holding that failure to promote claims are based on discrete acts and may not be based on discrete acts falling outside the limitations period). With respect to discriminatory pay decisions, the Supreme Court recently held that each separate paycheck does not constitute a discrete discriminatory act. Rather, the time period for filing an EEOC complaint begins running on the day the discriminatory pay decision was made. Ledbetter, 127 S.Ct. at 2169.

Although Akinola alleges discriminatory conduct over a period of years, his complaint concerns discrete discriminatory acts. Since Akinola filed a claim with the NYSDHR on December 21, 2005, any claims based upon conduct that occurred before February 23, 2005, that is, 300 days earlier, are time barred. The following claims, premised on incidents that occurred prior to February 23, 2005, are dismissed: (1) the denial of a promotion in 2001, which was given to Ghoughassian; (2) the December 2002 transfer; and (3) the denial of a promotion in June 2004, which was given to Shaikh. Two claims are not time barred: (1) the denial of a promotion to Director of Leasing Unit, which was awarded to Shaikh in March 2005 and (2) the denial of a promotion that was awarded to Shaikh in July 2005. Timeliness of Federal Complaint

At trial, Akinola will have the burden of proving that he applied and was qualified for the two promotions given to Shaikh.Petrosino, 385 F.3d at 226. Petrosino also discusses the very limited exceptions to the requirement that the plaintiff apply for the promotion in question. Id. at 227.

ACS also claims that this lawsuit must be dismissed because Akinola did not timely file his complaint in this court. A plaintiff must file a lawsuit within ninety days of receipt of the EEOC's right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1);Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). The EEOC letter to Akinola is dated July 5, 2006, which was a Wednesday. A plaintiff is presumed to have received the letter within three days of the date contained on the letter, or July 8. Id. Ninety days from July 8 is Friday, October 6. Akinola filed this action on Tuesday, October 10, or four days late.

Akinola may rebut that presumption by providing supplemental information showing when he actually received the letter. See, e.g., Holowecki v. Fed. Express Corp., 440 F.3d 558, 565 (2d Cir. 2006). Akinola has submitted a copy of the envelope, which bears the metered postage date of July 7, 2006, and printed address label date of July 11, 2006. Akinola asserts that he did not receive the letter until July 12, 2006. The letter was sent to Akinola at a post office box address. His last name and the date "7-12" are handwritten on the envelope. July 12, 2006 was a Wednesday. Ninety days from July 12 is Tuesday, October 10, the day on which this action was filed. Therefore, Akinola has attached sufficient information to his amended complaint to allege that his action was filed within the ninety-day time limit. ACS may of course file a motion for summary judgment if discovery reveals that Akinola received the right to sue letter earlier than July 12.


ACS's motion to dismiss is granted in part. Those claims based on events prior to February 23, 2005 are dismissed with prejudice.