Opinion
02 Civ. 2429 (TPG)
September 24, 2003
OPINION
This is a suit alleging employment discrimination. Plaintiff claims (i) race and national origin discrimination in violation of 42 U.S.C. § 1981; (ii) race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.: and (iii) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Defendant moves for partial dismissal of plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6), The motion is granted.
The first request in the motion is for dismissal of the § 1981 claim on the basis of the statute of limitations. The law is clear that the statute of limitations applicable to this claim is the statute governing the most closely analogous state cause of action. 42 U.S.C. § 1988(a); Owens v. Okure 488 U.S. 235, 239 (1989). It is established that this is the three — year limitation for personal injury claims under New York State law. See CPLR § 214(5); Rodriguez v. Chandler, 641 F. Supp. 1292, 1297 (S.D.N.Y. 1986), aff'd without opinion, 841 F.2d 1117 (2d Cir. 1988). The date of accrual is that point of time when the plaintiff knows or has reason to know of the injury which is the basis of the action. Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980).
It would appear that plaintiff in this case had reason to know of the alleged discriminatory treatment at least as of June 1, 1998, the date when she filed her complaint with the New York City Commission on Human Rights. The last allegedly discriminatory action against plaintiff was the termination of her employment, which occurred on September 10, 1998. Plaintiff has since alleged that this termination was in retaliation for her filing of the complaint with the Human Rights Commission.
Plaintiff's complaint in the present lawsuit was not filed until March 28, 2002, more than three years after these events. Plaintiff's § 1981 claims are therefore time — barred and are dismissed.
As to the Title VII claim, the law requires exhaustion of administrative remedies. Plaintiff did indeed complain to the Human Rights Commission. Her first complaint was made on June 1, 1998. She amended that complaint on July 13, 1998 to add parties. These complaints were about discrimination on the basis of age and national origin. She did not claim racial discrimination. Plaintiff did not even classify herself with respect to her race but simply referred to herself as "64 years of age and of Jamaican national origin." She claimed that she was discriminated against in favor of "similarly — situated younger and non — Jamaican employees." Plaintiffs third complaint was filed on August 24, 1999 alleging termination of her employment because of retaliation. Again, there was no claim of racial discrimination.
The only indication of race discrimination in the administrative charges was in a single, unsigned page, filed along with the second complaint, in which there was a check in a box relating to race discrimination.
It is established law that a claim for discrimination based on national origin does not, in and of itself, constitute or include a claim of racial discrimination. The Second Circuit has recognized that a claim not raised by the EEOC charge can nevertheless be pursued in District Court if it is "reasonably related" to a claim in the EEOC complaint. Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other grounds; Deravin v. Kerik, 2002 U.S. Dist. LEXIS 2623 (S.D.N.Y. Feb. 19, 2000), at *7. A claim is "reasonably related" to a claim raised in a civil action "if the conduct complained of would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Deravin. 2002 U.S. Dist. LEXIS 2623, at *8.
In the present case no complaint of racial discrimination was made to the Commission. There was nothing to lead the Commission to investigate a charge of race discrimination, and it did not do so. In its two orders, issued on May 31, 2001, the Commission described its investigation into plaintiffs charges of age and national origin discrimination and retaliation. There was no mention of any claim of racial discrimination. As far as the checking of the box relating to race discrimination, this is not sufficient to constitute an actual claim of discrimination on the basis of race. Cooper v. Xerox Corp., 994 F. Supp. 429, 436 (W.D.N.Y. 1998).
For these reasons, the court dismisses plaintiffs entire claim under 42 U.S.C. § 1981 and her claim of racial discrimination under Title VII.
SO ORDERED.