Opinion
2540/2019
12-23-2020
Yvonne SPAULDING, Petitioner, v. CITY OF NEW YORK, Department of Education, and General Counsel, State Division of Human Rights, Respondent.
Petitioner Pro se: Yvonne J. Spaulding Respondent City of New York, Department of Education: Jennifer Y. Hwang, Esq., Corporation Counsel of the City of New York, 100 Church Street, Room 2-141, New York, NY 10007 New York State Division of Human Rights, Aaron M. Woskoff, Esq., New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, New York, 10458
Petitioner Pro se: Yvonne J. Spaulding
Respondent City of New York, Department of Education: Jennifer Y. Hwang, Esq., Corporation Counsel of the City of New York, 100 Church Street, Room 2-141, New York, NY 10007
New York State Division of Human Rights, Aaron M. Woskoff, Esq., New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, New York, 10458
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and verified petition filed on June 25, 2019, by petitioner, Yvonne Spaulding (hereinafter Spaulding), pursuant to CPLR Article 78 against the City of New York (hereinafter the City), the Department of Education (hereinafter DOE) and the New York State Division of Human Rights (hereinafter NYSDHR) to, inter alia, appeal the determination of the NYSDHR to dismiss petitioner's complaint due to untimeliness. The City, DOE and NYSDHR have opposed the petition.
Notice of Petition
Petition
Exhibits A-G
Answer of NYSDHR
Exhibits A-C
Answer of the City and DOE
Memorandum of law in opposition
Exhibits 1-3
BACKGROUND
On June 25, 2019, Spaulding commenced the instant CPLR Article 78 proceeding against the City, DOE and the NYSDHR by filing a notice of petition and verified petition with the Kings County Clerk's office. The petition alleges the following salient facts. On December 14, 2018, Spaulding filed a verified complaint with the NYSDHR charging the City of New York and the Department of Education with an unlawful discriminatory practice relating to employment in violation of New York Executive Law Article 15 (Human Rights Law).
The verified complaint was adjudicated and determined by NYSDHR through Linda Fenstermaker, the Regional Director of NYSDHR. In a Determination and Order of Dismissal (hereinafter the Dismissal Order) issued on April 30, 2019, Linda Fenstermaker, dismissed Spaulding's verified complaint due to untimeliness.
Fenstermaker found that based on the allegations in Spaulding's verified complaint the most recent discriminatory action by the respondents occurred on October 13, 2017. On December 14, 2018, Spaulding filed the verified complaint. Fenstermaker concluded that NYSDHR lacked jurisdiction because the verified complaint was not filed within one year of the most recent discriminatory action as required by Section 297.5 of the Human Rights Law.
Spaulding contends that her appeal was timely and that the claims from the December 14, 2018 verified complaint were meritorious. Spaulding seeks to appeal the determination of the NYSDHR to dismiss petitioner's complaint due to untimeliness. Spaulding also seeks a determination on the merits of her December 14, 2018 verified complaint.
NYSDHR interposed a verified answer dated October 15, 2019. NYSDHR contends, inter alia, that the determination to dismiss Spaulding's verified complaint without a hearing was proper and in accordance with Executive Law § 297. NYSDHR also contends that Executive Law § 298 and not CPLR Article 78 provides the exclusive means for review of its determination.
The City and DOE interposed a verified answer dated April 23, 2020. They contend that they are not proper parties to the proceeding. They further contend that the NYSDHR's determination was neither arbitrary nor capricious. They also contend that to the extent the petitioner seeks to directly challenge DOE's October 13, 2017 denial of petitioner's application for security clearance, such a challenge is time barred and barred by the doctrine of res judicata.
Spaulding submitted a reply dated August 31, 2020.
LAW AND APPLICATION
NYSDHR's Arguments
NYSDHR's contends that CPLR Article 78 is not applicable to the instant proceeding and that Executive Law § 298 provides the exclusive means for review of its determination. Although the Court agrees, the procedural error is disregarded in accordance with CPLR 2001 and the determination is reviewed pursuant to Executive Law § 298. The petitioner's error does neither change the analysis nor result in any prejudice to NYSDHR.
Petitioner filed a verified complaint with the NYSDHR on December 14, 2018 charging DOE with retaliation and discrimination in violation of Executive Law §§ 290, et seq. in connection with DOE's October 13, 2017 denial of petitioner's application for security clearance. The DOE denied petitioner's application for security clearance by a notice denominated as Security Clearance Denial Letter. It is attached to the Petition as Exhibit B.
On December 14, 2018, Spaulding filed a verified complaint with the NYSDHR charging the City of New York and the Department of Education with an unlawful discriminatory practice relating to employment in violation of New York Executive Law article 15 (Human Rights Law). The NYSDHR denied the complaint by a notice denominated as Determination and Order of Dismissal for Untimeliness. It is annexed to the Petition as Exhibit A.
Pursuant to NY Executive Law, complaints alleging violations of the NYSHRL must be filed within one year after the alleged unlawful discriminatory practice ( Executive Law § 297 [5] ); Ambrosio v. State Div. of Human Rights , 144 AD2d 662 [2nd Dept 1988] ). Petitioner contends that the statute of limitations began to run on December 19, 2017, the date she received the letter from the DOE denominated Reconsideration Denial Letter. It is attached to the Petition as Exhibit F. She contends that her verified complaint was timely filed.
Contrary to the petitioner's contention, the Second Department explicitly held that the one-year statute of limitation under the Executive Law §§ 290, et seq. is not tolled by a request for a reconsideration of an administrative determination ( Patel v. NY State Div. of Human Rights , 216 AD2d 469, 470 [2nd Dept 1995] ). Similarly, petitioner's November 12, 2017 letter for reconsideration did not toll the one-year statute of limitation ( Patel , 216 AD2d at 469 ). Consequently, the statute of limitations began to run on October 13, 2017, the date of DOE's denial of petitioner's application for security clearance. Therefore, the statute of limitations expired one year later, on October 13, 2018 (see Executive Law § 297 [5] ).
Petitioner did not file her NYSDHR complaint until December 14, 2018. Since petitioner's complaint was filed more than one year after the last act of alleged retaliation and discrimination, the NYSDHR's determination that the verified complaint was untimely filed was not arbitrary or capricious. Accordingly, NYSDHR's Determination and Order of Dismissal for Untimeliness was rational.
The City and DOE's Arguments
The City and DOE interposed a joint verified answer dated April 23, 2020. They raised for specific arguments in support of dismissal of the petition. First, they contend that they are not proper parties to the proceeding since they played no role in the determination of the NYSDHR's determination to deny petitioner's complaint as untimely. Also, they claim that the petition alleges no specific acts by them. Second, they contend that the determination of the NYSDHR was correct and was neither arbitrary nor capricious. Third, they contend that to the extent the petitioner seeks to directly challenge DOE's October 13, 2017 denial of petitioner's application for security clearance, the challenge is time barred and barred by the doctrine of res judicata.
Inasmuch as the determination of NYSDHR to deny petitioner's complaint as untimely was properly made and was neither arbitrary nor capricious, the Court need not reach the other arguments advanced by the City and DOE.
CONCLUSION
The petition of Yvonne Spaulding asserted against the City of New York, the Department of Education and the New York State Division of Human Rights to appeal the determination of the New York State Division of Human Rights to dismiss petitioner's complaint due to untimeliness is denied and the petition is dismissed.
The foregoing constitutes the decision and order of this Court.