Opinion
251205/08.
Decided December 23, 2008.
Plaintiff Felicia Pickett Johnson, Pro Se.
Barry Rothman, Esq., Counsel for the defendant.
The motion by defendant for an order pursuant to C.P.L.R. § 3211(a)(5), dismissing pro se plaintiff's complaint with respect to plaintiff's federal claims under the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act of 1967 and the Fourteenth Amendment of the United States Constitution is granted with respect to the claims pursuant to Title VII and the ADA.
Plaintiff herein was a former employee of the defendants. She alleges that in or around September of 2006, she was subjected to sexual and racial discrimination at her employment by a former employee named Ronald Granger who used offensive language. Plaintiff alleges that she reported same to defendant's representatives and she suffered retaliation as a result.
Defendant asserts that in April of 2007, plaintiff filed a charge with the United States Equal Employment Opportunity Commission (EEOC) alleging the same circumstances she makes in her complaint. On October 31, 2007, EEOC sent a letter to the plaintiff indicating that based upon its investigation, EEOC was unable to conclude that the information obtained established violations of the statutes. Said letter provided that plaintiff could file a lawsuit against the respondent under federal law based upon said charges in federal or state court. The time limit to file said lawsuit was within ninety (90) days from plaintiff's receipt of said notice.
Plaintiff filed an action in United States District Court on February 7, 2008, under Title VII and the ADA against defendant and her co-worker, Ronald Granger. Said complaint alleged violations of New York State and New York City Human Rights laws. Defendant herein then made a motion in federal court for judgment on the pleadings dismissing the complaint. One of the grounds alleged by the defendant was that the action was time-barred by the ninety (90) day statute of limitations pursuant to 42 U.S.C. § 2000e5(f)(1) and 42 U.S.C. § 12117(a). Said statutes provide that a plaintiff seeking relief under Title VII and the ADA must commence an action within ninety (90) days of receipt of the "Right to Sue" letter from EEOC.
In a decision and order dated July 25, 2008, United States District Court Judge Victor Marrero granted defendant's motion and dismissed plaintiff's complaint. Judge Marrero found that plaintiff's claims under Title VII and the ADA were time barred by the ninety (90) day statute of limitations and he refused to exercise supplemental jurisdiction over the state court claim. (Defendants' Exhibit 9).
Plaintiff commenced the instant action by filing a summons and complaint on June 27, 2008. Her complaint makes allegations of sexual harassment from employee Ronald Granger. In addition, she claims that her supervisors harassed her after she reported Granger's behavior. She alleges that she suffered discrimination as an African-American born female. Moreover, when she sought assistance from her union, her personal property was subsequently stolen. Defendant contends that plaintiff seeks relief pursuant to The Americans with Disabilities Act of 1990, New York State Human Rights Law, Executive Law §§ 290- 297, the New York City Human Rights Law; 14th Administrative Code §§ 8-11 to 131, the fourteenth amendment of the U.S. Constitution, title VII ov the Civil Rights Act of 1964 and the Age Discrimination and Employment Act 1967.
Defendant asserts that plaintiff filed her complaint in federal district court alleging violations of the same federal statutes and that Judge Marrero dismissed same as time barred. Therefore, the federal claims she now alleges in her state court complaint must be dismissed on grounds of res judicata and collateral estoppel.
Pro se plaintiff submits an affidavit in opposition to defendants' motion and makes several arguments unrelated to defendants' motion herein. She first argues that the defendants "conspired together" and "committed perjury in Federal Court." (Plaintiff's Affidavit, p. 1). With respect to defendants' motion, plaintiff contends that she initially hired an attorney that was supposed to file her claim and write to the defendant to negotiate a settlement but he failed to do so. She further alleges that her "Right to Sue" letter from EEOC was "lost or stolen from her home" and she requested a copy from EEOC in January 2007. (Plaintiff's Affidavit, p. 2). Plaintiff claims that she received her "Right to Sue" letter on November 18, 2008 and has had "several complaints with the post office prior to EEOC charge that she had not been getting her regular and certified mail delivered to her." (Plaintiff's Affidavit, p. 3). She submits a copy of the letter to the post office as well as her postal complaint number.
Plaintiff contends that the allegations in federal court were not dismissed because they were not meritorious but rather because they were time barred. She contends that her state claims were timely filed nor were they argued in federal court. She then details the state claims she has made in her complaint. Plaintiff also alleges that she has appealed the federal district court decision. Plaintiff concludes by stating that she had "extraordinary adverse reasons to file a late claim." (Plaintiff's Affidavit, para. 5).
Pursuant to C.P.L.R. § 3211(a)(5), a party may move for judgment dismissing one or more causes of action asserted against it on the ground that "the cause of action may not be maintained because of . . . collateral estoppel . . ." In the case at bar, plaintiff had the opportunity to litigate the issue of whether or not her federal claims were time barred, before Judge Marrero in federal district court. In Sam v. Metro-North Commuter Railroad, et al. , 287 AD2d 378 (1st Dept. 2001), the court held, "The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceedings and decided against that party . . . whether or not the tribunals or causes of action are same' . . ." Id . at 379; See also , Peterkin v. Episcopal Social Services of New York, Inc. , 24 AD3d 306 (1st Dept. 2005). Judge Marrero declared that the federal causes of action pursuant to Title VII and the ADA were time barred because plaintiff did not timely file them after receiving her Right to Sue letter from EEOC. Therefore, plaintiff cannot raise those claims in State Court as she is barred from doing so by the doctrine of collateral estoppel and res judicata.
However, even though defendant seeks to have all federal claims raised by the plaintiff dismissed based upon collateral estoppel and res judicata, Judge Marrero's decision did not address plaintiff's claims pursuant to the Age Discrimination and Employment Act of 1967 and the Fourteenth Amendment of the United States Constitution. The decision specifically states that the Title VII and ADA claims were dismissed as time-barred.
Accordingly, defendant's motion is granted with respect to the Title VII and ADA causes of action only.
Defendant is directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.
This constitutes the decision and order of the court.