Opinion
No. 04 CV 2022 (GBD).
February 15, 2005
MEMORANDUM DECISION AND ORDER
In an action for employment discrimination, defendants moved to dismiss the complaint. The motion is granted.
The first cause of action alleges discrimination in violation of Title VII of the Civil Rights Act of 1964 against the defendant City College of the City of New York ("CCNY"). The second and third causes of action, against all defendants, allege violations of the New York State Human Rights Law and New York City Human Rights Law, respectively. The fourth cause of action, against all defendants, is for intentional infliction of emotional distress. Plaintiff has conceded that the second, third and fourth causes of action cannot be maintained against CCNY, as such claims are barred by the Eleventh Amendment and New York Education Law § 6224(4) (McKinney 2001). This bar applies to both CCNY as plaintiff's employer and its officers and agents acting in the course of their employment on behalf of CCNY. Accordingly, the second, third and fourth claims are dismissed against CCNY and against the remaining defendants, to the extent that those defendants are being sued in their official capacity. Insufficient factual allegations are also pled as to each individual defendant to allege a cause of action under applicable State and City laws. In addition to being dismissed for lack of federal jurisdiction, the factual allegations in support of the intentional infliction of emotional distress claim are insufficient to state a claim as to any defendant. The alleged conduct giving rise to the cause of action is not so outrageous as to make out a cause of action for intentional infliction of emotional distress.
In his brief, "Plaintiff . . . acknowledges that the State law claims cannot be maintained against CCNY in this forum." (Pl.'s Mem. Opp'n Mot. to Dismiss at 16 n. 8).
To the extent plaintiff is attempting to raise, what defendants describe as a breach of contract claim, he is precluded from maintaining such a claim as it too is barred by the Eleventh Amendment.
Additionally, many of the alleged culpable acts pled by plaintiff are barred by agreement or are otherwise time-barred. In a written agreement, plaintiff waived and released defendants with regard to any discriminatory and non-discriminatory related employment acts occurring prior to March 19, 2002. Paragraph seven of the New York Public Employment Relations Board's March 19, 2002 Stipulation of Settlement, entered into by plaintiff and CCNY, provides:
Charging Party [plaintiff] agrees to withdraw with prejudice the captioned improper practice charge . . . and further agrees not to initiate any action, appeal, proceeding, complaint, grievance or arbitration, including but not limited to any claims under the Age Discrimination in Employment Act (ADEA), in any court . . . against The City University of New York, The City College, or any of their officers, employees or agents, regarding the terms of this Settlement Agreement and regarding the Charging party's employment at the City University of New York for any period preceding the last date listed below in this Settlement Agreement and regarding the terms of this Settlement Agreement, except as may be necessary to enforce it. (Jacoby Decl. Ex. C at 2).
Thus, plaintiff is precluded from seeking to impose liability upon defendants for acts occurring prior to March 19, 2002. Plaintiff's argument that defendants' conduct renders the agreement unenforceable is unavailing.
Furthermore, Title VII claims must be filed with the Equal Employment Opportunity Commission ("EEOC") 180 days after the alleged unlawful employment practice occurred or if the aggrieved party instituted proceedings with a state or local agency, within 300 days after the discriminatory practice complained of occurred. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1). This filing requirement acts as a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (citation omitted). The complaint indicates that plaintiff filed a charge with the EEOC on November 1, 2003. Thus, only alleged acts of discrimination occurring within 300 days of the date he filed the charge are timely. Accordingly, any acts which are alleged to have taken place prior to January 6, 2003 are time-barred.
Plaintiff's argument that his discriminatory treatment and denial of promotion are continuing violations is rejected by this Court.
In light of the foregoing, defendants' motion to dismiss the complaint is granted. However, leave to amend should be freely given when justice dictates. Fed.R.Civ.P. 15(a); Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995). Accordingly, it is hereby ordered that, within ninety (90) days of the date of this decision, plaintiff may file an amended complaint if sufficient discriminatory acts can be pled that allegedly occurred after January 6, 2003 to support a Title VII claim against defendant CCNY.
Leave is also granted to amend the complaint to allege sufficient factual allegations with regard to each individual defendant if such an amendment can state a claim under State or City law. With regard to defendants Pamela Gillespie, Robert Laurich and Robert Uttich, the amended complaint may only name them as defendants in their individual capacity. Plaintiff is precluded from re-pleading a claim for intentional infliction of emotional distress as such an attempted amendment would be futile.
Plaintiff's failure to file an amended complaint within ninety days hereof will result in this action being terminated and the matter closed.
SO ORDERED.