Opinion
117224/01.
Decided June 28, 2004.
Plaintiffs Frederick Hughes and Dave A. Cawley (sometimes collectively referred to herein as "Plaintiffs") were both employed by United Parcel Service, Inc. ("UPS"), and performed their services for UPS within the City of New York. Plaintiffs, both African-Americans, allege that they had experienced acts of race discrimination, including being subject to a racially hostile work environment, a pattern and practice of disparate treatment, and retaliation in violation of Title 8, Chapter 1, § 8-107(1)(a) (7)(i) of the Administrative Code of the City of New York ("NYC Code"). UPS now moves for partial summary judgment dismissing plaintiffs' claims occurring more than three years before the commencement of this action on September 10, 2001, as time-barred. Plaintiffs oppose the motion.
Background
Plaintiffs Frederick Hughes and Dave A. Cawley commenced employment with UPS in 1978 and 1987 respectively and are still employed by UPS. Plaintiffs allege discrimination occurring throughout each of their employments with UPS and retaliation beginning in 1992.
Hughes began at UPS in March 1978 as a part-time unloader and became a part-time Hub Supervisor in September 1978. In 1985, Hughes' position changed to a full-time supervisor, a low-level management position. He has not changed positions since that time despite seeking numerous promotions. During his employment with UPS, Hughes was transferred several times within the Northeast Region of UPS. Hughes worked in various facilities within several of the districts in the region, including the Metro New York District, the Central New Jersey District, the Central New York District, and the West Long Island District.
During his employment at UPS, Hughes alleges he was subjected to a hostile work environment, a pattern and practice of disparate treatment and retaliation. In support of his claims, Hughes has alleged numerous racially discriminatory practices of UPS, including failing to promote Hughes to a position commensurate with his skill, experience, training and seniority, when Caucasian employees with less skill, experience, training and seniority were regularly promoted ahead of Hughes. Hughes alleges at least twenty-five people, none of whom were African-American, were promoted instead of Hughes to positions he was qualified for during his employment at UPS. Approximately eight of these promotions occurred after September of 1998.
Hughes also alleges that at least four separate managers at UPS told Hughes that he was ready for a promotion. Hughes alleges that he was promised a promotion during conversations occurring in 1988, 1989, 1990, and 1995, none of which resulted in a promotion. Hughes also states that he was required to train a Caucasian employee, who he was told would take over his job after Hughes was promoted, after which the trainee was promoted to the manager's position above Hughes.
Additionally, Hughes alleges that in 1980, a UPS manager used a racial epithet when referring to him and in 1982, another manager threw a punch at Hughes, missing and hitting the wall. Along with these instances of harassment, Hughes alleges that he was treated differently than Caucasian supervisors and singled out by his managers because of his race.
In 1992, after learning of a plan to transfer him to a lateral position in another facility after he was told he was being considered for a promotion, Hughes alleges that he approached his district manager and the District Human Resources Manager and told them that he believed he was being transferred to another facility instead of being promoted because of his race. Hughes alleges that he was told that refusing this transfer would be a "career decision." Hughes was not transferred at that time and alleges that since that conversation, he has suffered retaliation and discrimination.
Hughes alleges that he continued to be singled out and treated differently by his managers because of his race. Hughes cites his treatment from February 1998 through September 1998, when his manager, Kevin Quinn, who berated and harassed him on a regular basis while Hughes' Caucasian counterparts were treated with respect and professionalism.
Other illustrations of racially discriminatory actions Hughes alleges he was subjected to include (i) being denied his 20-year service award, while his manager held celebratory breakfasts for others with 15 years of experience, (ii) being required to perform tasks that were outside the scope of his job duties, such as delivering packages on a regular basis, (iii) being singled out by managers and reprimanded for minor issues such as dust on the top of the file cabinets or a missing thumbtack, (iv) being instructed to give write-ups to document every conversation he had with his staff, and (v) being held accountable for errors of others. Hughes alleges these and other actions were taken to harass and humiliate him and were not taken against his Caucasian counterparts.
In the fall of 1998, Hughes commenced an internal Employee Dispute Resolution ("EDR") Program, to address his allegations that he was subjected to race discrimination and retaliation. In December of 1998, Hughes attended a mediation in accordance with the EDR program, where he was advised by UPS to request a hardship relocation to Virginia, to be closer to his ill parents. Hughes alleges that his efforts to utilize UPS's EDR program led to further retaliation against him, including being threatened and warned that management was "after him."
In January 1999, Hughes states that he was advised that his request for a transfer was approved by the District, but they were waiting for Regional approval before he could be transferred. Hughes followed-up with his managers concerning the transfer and did not receive any additional information. In the fall of 1999, Hughes met with the District Human Resource Manager of the East Central Region. Hughes was told that he had not heard anything about his request for a transfer. Hughes' request for a transfer was formally denied in October of 1999. Hughes alleges that this denial of the transfer request was in retaliation for complaining about racial discrimination and that transfer requests were routinely granted to white employees.
Plaintiff Cawley began working for UPS in October 1987 as a part-time tractor-trailer driver and was promoted in February 1988 to a full-time supervisor. Like Hughes, Cawley claims he was subjected to a racially hostile work environment, a pattern and practice of disparate treatment and retaliation. Cawley alleges that he was passed over for promotions while others, who were Caucasians with less experience, less tenure, and whose performance had not been recognized as equal to his own, were promoted to positions which he was qualified for. Cawley alleges that he repeatedly received positive feedback from his supervisors, managers and division manager, saying that he "would make a good manager" and was "being considered for a promotion." Cawley further alleges that he was passed over at least twenty-two times for promotions, and that approximately five times he was passed over within the three-year commencement of this action.
At a meeting in July 1997, Cawley contends that he complained about the lack of minorities in managerial positions and expressed his concern for the advancement of his career. At the meeting, Cawley was allegedly told by his manager "maybe you should think about looking for another job."
Cawley also alleges that, throughout his employment at UPS, he was treated differently than his Caucasian counterparts. In particular, he asserts that UPS refused to honor his requests for advancement and discretionary days off, he was addressed differently, they afforded him fewer opportunities, and the displayed general lack of respect towards him.
Cawley alleges that he did not utilize UPS's EDR in 1998, when it was implemented, to address his concerns about the conditions of his employment since there was an "unwritten policy" that employees who lodge complaints under EDR are not considered "team players" by UPS, and were singled out for further discriminatory acts.
In September 2001, Cawley was promoted to Dispatch Manager. Cawley alleges that he was promoted only after UPS learned that Cawley sought legal advice about UPS' discriminatory practices.
UPS alleges that Cawley was promoted in July 2001, which is before this action was commenced.
Plaintiffs also point to the practices at the annual promotion meetings, (called "People's Meetings,") attended by Division Managers, wherein photographs of candidates for promotions were projected on a screen before they were voted upon. Plaintiffs allege that this UPS practice is racially discriminatory and reflects a pattern and practice of using race as a factor in determining who would be promoted.
This action was commenced on September 10, 2001. This first and third causes of action, on behalf of Hughes and Cawley respectively, allege that UPS engaged in unlawful race discrimination against plaintiffs in violation of New York City Administrative Code § 8-107(a)(1) (known as the New York City Human Rights Law). Specifically, it is alleged that plaintiffs were discriminated against by UPS based on their race, and that, inter alia, "UPS failed to properly rectify or remedy effectively the unlawful work environment created by [plaintiffs'] managers and other UPS supervisory workers, so that [plaintiffs'] workplace was caused, permitted and allowed by UPS to be permeated with an atmosphere of discrimination, and [their] work environment became infected with hostility, racial discrimination and retaliation" and that this work environment "created by UPS . . . severely and unreasonably altered the terms, conditions and privileges of [plaintiffs'] employment."
Section 8-107(a)(1) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice: (a) For an employer or employee or agent thereof . . . because of race . . . to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment."
The second and fourth causes of action, on behalf of Hughes and Cawley respectively, allege that UPS engaged in unlawful discriminatory and retaliatory acts in violation of New York City Administrative Code § 8-107(7)(i). In particular, it is alleged that "[i]n retaliation for complaining about the conduct of UPS and the hostile work environment that UPS caused, permitted and allowed to exist in [plaintiffs'] workplace UPS, without valid basis or justification, made [plaintiffs'] race a factor, and in furtherance of its desire to terminate [plaintiffs] because of [their] race, began to also engage in discriminatory conduct, which caused [plaintiffs] to be demoralized, demeaned and humiliated in the hope that [they] would quit [their] position/and or create a pretext as a basis upon which to discharge [them]."
Section 8-107(7)(i) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice for any person to engage in any activity . . . to retaliate or discriminate in any manner against any person because such a person has . . . opposed any practice forbidden under this chapter. . . ."
Discussion
A motion for summary judgment is appropriate when "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." CPLR 3212(b). Furthermore, "summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just." CPLR. 3212(e). "It is not the court's function on a motion for summary judgment to assess credibility." Ferrante v. American Lung Association, 90 N.Y.2d 623, 631 (1997) (citations omitted). And, of relevance here, the issue of whether discrimination has occurred generally presents an issue of fact since discrimination is often "accomplished by devious and subtle means." Forrest v. Jewish Guild for the Blind, 309 A.D.2d 546 (1st Dept 2003), lv granted, 1 N.Y.3d 506 (2004). Nonetheless, summary judgment may be appropriately granted in discrimination cases when the defendant demonstrates the absence of a prima facie case, and plaintiff is unable to raise an issue of fact. Ferrante v. American Lung Association, 90 N.Y.2d at 631.
The standards for recovery under the New York City Human Rights Law, like the New York State Human Rights Law, are in accord with Federal standards under Title VII of the Civil Rights Act of 1964. Ferrante v. American Lung Association, 90 N.Y.2d at 629; Walsh v. Covenant House, 244 A.D.2d 214, 215 (1st Dept. 1997). On a claim for discrimination, plaintiffs bear the initial burden of establishing a prima facie case of race discrimination by showing that plaintiffs were a member of a protected group, that they suffered an adverse employment consequence, and that the employer's action occurred in circumstances giving rise to an inference of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once plaintiffs make out a prima facie case, the burden shifts to defendants to articulate some legitimate, nondiscriminatory reason for their action, after which plaintiffs bear the burden of showing that this proffered reason is in fact a pretext. McDonnell Douglas Corp., 411 U.S. at 803-804.
On this motion, UPS does not seek summary judgment on the merits of plaintiffs' discrimination and retaliation claims. Such a motion obviously would be premature since although at the time the motion was submitted plaintiffs had responded to interrogatories and Hughes deposition has been taken, Cawley had not yet been deposed and no depositions had been taken of UPS's employees. Instead, UPS argues that certain portions of plaintiffs' claims are barred by the applicable statute of limitations for employment discrimination claims.
Plaintiffs' claims for discrimination and retaliation arise under Chapter 1, Title 8 of the Administrative Code of the City of New York (the "Human Rights Law"). Claims brought under the Human Rights Laws are subject to a three-year statute of limitations. See Administrative Code of the City of New York § 8-502(d) (providing that "[a] civil action commenced under this section must be within three years after the alleged unlawful discriminatory practice occurred."); see also, Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307 (1983) (three-year statute of limitations for liability founded upon statue is applicable to civil court action for age discrimination).
UPS argues that it is entitled to partial summary judgment dismissing plaintiffs' claims to the extent such claims are based on conduct by UPS alleged to have occurred prior to September 10, 1998. Plaintiffs counter that the conduct occurring before September 10, 1998 is admissible under the continuing violation doctrine since the conduct alleged by plaintiffs established a hostile work environment and shows a pattern and practice of racial discrimination occurring at UPS.
Both UPS and plaintiffs rely on the standard set forth for applying the continuing violation doctrine in the recent United States Supreme Court opinion of National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See Hernandez v. Kellwood Co., No. 99 Civ. 10015, 2003 U.S. Dist. LEXIS 17862, at *48, n. 5 (S.D.N.Y. Oct. 8, 2003) (continuing violation analysis applied to federal discrimination claims also applies to claims under New York City Human Rights Law). In Morgan, an African-American former employee brought action against a railroad for racial discrimination and retaliation under Title VII. The Court distinguished discriminatory acts based on discrete discriminatory acts from hostile work environment claims based on repeated conduct. Morgan held that only those discrete acts occurring within the law's statute of limitations were actionable; but that the continuing violation theory could be applied to an employee's claim of hostile work environment, as long as the acts were part of the same hostile work environment and at least one occurred within the statute of limitations period. 536 U.S. at 117.
A discrete discriminatory act is one that "occurs" on the day that it "happened." Id. at 110. "Thus, in employment discrimination cases based on discrete acts, the statutory filing period for claims based on those acts begins to run, as to each act, on the day it occurs." O'Dwyer v. Snow, 2004 WL 44534, *5 (S.D.N.Y. March 10, 2004). See also, Morgan, 536 U.S. at 110. What constitutes a "discrete act" has not been defined, although the Morgan Court cited such employment actions as termination, failure to promote, denial of transfer, and refusal to hire as "easy" examples of what constitutes a discrete act. Morgan, 536 U.S. at 114.
In contrast, a hostile work environment "cannot be said to occur on a particular day." Id. at 115. Instead, "[i]t occurs over a series of days or perhaps years." Id. A hostile work environment claim involves severe and pervasive conduct so objectively offensive as to alter the conditions of the victim's work environment, which is subjectively perceived as hostile or intimidating. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75. Plaintiffs must allege that the conduct at issue unreasonably interfered with their job performance. Id. In hostile environment actions "claims based on acts occurring outside of the filing period be treated as timely." O'Dwyer v. Snow, 2004 WL 44534, *5. See also, Fontanez v. Thompson, No. 00 Civ. 2090 (DFE), 2003 U.S. Dist. LEXIS 6980, at *26-27 (S.D.N.Y. April 24, 2003).
UPS argues that the conduct providing the basis for plaintiffs' claims qualify as discrete acts and, therefore, all the acts occurring before the three year statute of limitations should be dismissed at time-barred under the reasoning articulated in Morgan. Plaintiffs counter that Morgan confirmed that the continuing violation doctrine is viable in employment discrimination actions like the instant one, where the plaintiffs allege the existence of a hostile work environment and/or a pattern and practice of discrimination that the employer permits to remain unremedied for so long that it amounts to a policy of discrimination.
UPS is correct that plaintiffs' allegations of discrete acts of discrimination, such as the denials of various promotions, denial of transfers, being required to perform tasks that were outside the scope of plaintiffs' job duties, and acts of retaliation which occurred more than three years before this action was filed on September 10, 2001 do not give rise to timely claims based on such discrete acts alone. On the other hand, an employee is not barred "from using the prior acts as background evidence in support of a timely claim." Morgan at 113.
A different analysis, however, applies to plaintiffs' hostile work environment claim. Under Morgan and its progeny, "hostile environment claims are different from other discrimination claims, in that they are based not on discrete acts, but the cumulative effect of many individual acts." Linder v. City of New York, 263 F.Supp.2d 585, 594 (E.D.N.Y. 2003). "A claim for hostile work environment, which is subject to the continuing violations doctrine exception, involves a series of separate acts which 'collectively constitute' an unlawful employment practice, and will not be time barred if "all of the acts constituting the claim are part of the same unlawful practice and at least one discriminatory act falls within the filing period." Sculerati v. New York Univ., 2003 WL 21262371, *5 (Sup.Ct.N.Y.Cty. 2003) see also Morgan, 536 US at 118.
In this case, plaintiffs allege that they were subject to a hostile work environment based on their race. In his affidavit submitted in opposition to the motion, Hughes states, inter alia, that he was berated and harassed on a regular basis and regularly humiliated by various supervisors, treated differently than his Caucasian counterparts and retaliated against when he complained about discriminatory treatment. In his affidavit, Cawley asserts that he worked in an environment where everyday he was treated differently than his white counterparts that he was "kept out of the loop" "ostracized" and "kept out of meetings." In addition, Cawley states that when he pointed out discriminatory conduct he was told that he should think about looking for another job.
These allegations relating to a hostile work environment at UPS are sufficient to survive a motion for summary judgment. In fact, UPS does not deny at this juncture that plaintiffs have adequately stated a cause of action for a hostile work environment. UPS argues, however, that insofar as certain time-barred conduct underlying the hostile work environment claim is unrelated to conduct occurring within the limitation period, the earlier and unrelated conduct is not actionable. In particular, UPS alleges that certain earlier purported conduct is unrelated to the timely conduct as the earlier conduct involved completely different managers than the later conduct. In Morgan, the U.S. Supreme Court upheld the Ninth Circuit's finding that Morgan's hostile work environment claims were actionable noting that the Ninth Circuit conclusion that "'the pre and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetuated by the same managers.'" 536 US at 120. Here, it would appear that the complained-of-conduct although perpetuated by a number of different managers involved the similar types of employment actions. In any event, prior to the completion of discovery which will reveal the complete factual basis for the hostile work environment claim, it would be inappropriate to carve out which so-called pre-limitation conduct is related to timely conduct.
UPS also apparently argued that certain of plaintiffs' allegations supporting their hostile work environment claim are independent, discrete acts, which do not trigger the continuing violation doctrine. For instance, UPS points to Hughes' allegations that he was subject to a racial epithet in 1980, forced to perform work allegedly outside the scope of his job duties in1993, and singled out by managers and reprimanded multiple times, denied recognition for his years of service, and passed over numerous times for promotions.
To create a hostile work environment "the discriminatory incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa Sullivan Appliance Ctr. Inc., 957 F.2d 59, 62 (2d Cir. 1992). Thus, to the extent the alleged conduct constitutes discrete or episodic acts of discrimination such acts are not actionable as part of a hostile work environment claim. See e.g. Hernandez v. Kellwood Co., No. 99 Civ. 10015, 2003 U.S. Dist. LEXIS 17862, at *44-45 (allegations that plaintiff was asked to do work allegedly outside her job description did not constitute a continuing violation).
"In determining whether a hostile work environment claim exists [the court] look[s] to 'all the circumstances,' including 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance.'" See Morgan 536 U.S. at 116-177) (quoting Harris v. Forklift Systems 510 U.S.17, 23 (1993). It has also been held that "the incidents comprising a hostile work environment claim need not make reference to any trait or condition on the basis of which the discrimination has occurred, so long as the incidents can reasonably be interpreted as having taken place on the basis of that trait or condition." Svenningsen v. The College of Staten Island, No. 01 Civ. 7550, 2003 WL 21143076, *2 (E.D.N.Y. 2003), citing Gregory v. Daly, 243 F3d 687 (2d Cir 2001). In Morgan, for example, the hostile work environment claim which the U.S. Supreme Court held was subject to the continuous violation doctrine, was evidenced not only by acts of harassment based on race but also disciplinary actions and denial of training. Morgan v. National R.R. Passenger Corp, 232 F3d 1008, 1017 (9th Cir. 2000). Here, given that various acts of discrimination may be considered as part of a hostile work environment claim depending on their relationship with other acts comprising such claim, and, as discovery has not yet been completed, it is premature to determine which acts of alleged discrimination are isolated events that are unrelated to the hostile work environment claim. Accordingly, UPS's motion is denied to the extent it seeks to dismiss certain portions of plaintiffs' hostile work environment claims.
The remaining issue is whether plaintiffs have sufficiently alleged a 'pattern or practice' of discrimination against UPS. In Morgan, the Court specifically stated that it was not considering the timely filing question with respect to 'pattern-or-practice' claims brought by private litigants as none were at issue. Morgan at 115 n. 9. Since Morgan, courts have held that "the continuing violation doctrine can be satisfied if plaintiff establishes either an ongoing practice or policy of discrimination or the existence of specific acts of discrimination that are permitted by an employer to go unremedied for so long so as to amount to a policy or practice." Bloom v. New York City Board of Education, 2003 WL 1740528, *8 (SDNY 2003); Clark v. State of New York, 302 A.D.2d 942, 945 (4th Dept 2003). See also Branch v. Guilderland Central School Dist., 239 F.Supp.2d 242 (N.D.N.Y. 2003).
Plaintiffs argue that the actions taken by UPS, particularly the use of photographs in employment promotion decisions during so-called "People's Meetings" held by Division Managers, and the failure to promote plaintiffs while promoting at least 35 non-African-American employees to positions which plaintiffs where qualified for, constitute a pattern and practice of racial discrimination in the company in general, and to plaintiffs in particular. In his affidavit, Cawley states that he has been told that "Division Managers, the majority of which are white, review the photographs of employees as a routine part of the process they use to decide who receives and promotion. . . . The purpose of this procedure is to determine the race of the candidate." Plaintiffs also submit copies of photographs allegedly used during such meetings.
UPS counters that plaintiffs have failed to offer any evidence of a specific and explicit policy or mechanism of institutional discrimination at UPS, and that plaintiffs' allegations that there is a "custom or policy" of discrimination at UPS is insufficient to establish such a policy. UPS also contends that the plaintiffs have submitted insufficient evidence to support their allegations but instead rely on hearsay statements from Cawley, and photographs submitted without any foundation and that, in any event, the photographs alone do not suggest a racially discriminatory motive. UPS further argues the application of the continuing violation doctrine to plaintiffs' 'practice and pattern' theory would effectively eviscerate the holding in Morgan that discrete acts of discrimination do not constitute a single unlawful practice subject to the continuing violations theory.
In general, the 'practice and pattern' theory "has been limited to situations where a specific discriminatory policy or mechanism has been alleged." Bailey v. Colgate-Palmolive, 2003 WL 21108325 (S.D.N.Y. May 14, 2003). See also, Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Crosland v. City of New York, 140 F. Supp. 2d 300, 307 (S.D.N.Y. 2001) (the doctrine is "limited to situations where there are specific policies or mechanisms, such as discriminatory seniority lists or employment tests").
Although plaintiffs allege being treated differently than their Caucasian counterparts, and experiencing a general practice of race discrimination towards them at UPS, they have also alleged a specific discriminatory policy or mechanism. Plaintiffs point to UPS's practices at their annual promotion meetings, attended by Division Managers, wherein photographs of candidates for promotion were projected on a screen before they were voted upon. Plaintiffs allege that this UPS promotion mechanism is racially discriminatory and reflects a pattern and practice of using race as a factor in determining who would be promoted. Compare Bailey v. Colgate-Palmolive, 2003 WL 21108325 (S.D.N.Y. May 14, 2003) (plaintiff's could not invoke the continuing violations doctrine because they failed to "identify a specific discriminatory policy or mechanism").
"To advance a continuing violation claim a plaintiff must point to his disparate treatment stemming from a continuous practice of intentional discrimination" Harris v. City of New York, 186 F.3d 243, 249 (2nd Cir. 1999). See Gomes v. Avco Corp. 964 F.2d 1330 (2d Cir. 1992). In Harris, plaintiff's allegations that he was passed over for a promotion based on his disability, and that the defendant had a policy of no promotions or other accommodation of employees with disabilities were enough to withstand a motion to dismiss, notwithstanding that plaintiff could point to no specific instance where his employer failed to promote him on a particular date. Harris v. City of New York, 186 F.3d at 249. In the instant case, plaintiffs allege over thirty-five specific instances where they were passed over for promotions, while their non-African-American counterparts were given the promotions, many of which occurred within the three year statute of limitations. Moreover, contrary to UPS's position, as discovery is in its early stages, plaintiffs' failure to provide admissible evidence to support their assertions regarding the discriminatory promotion mechanism is not fatal to their claims alleging a 'pattern or practice' of discrimination. See e.g. During v. City University of New York, No. 01 Civ. 9584, 2002 U.S. Dist. Lexis 9796, *7 (S.D.N.Y. 2002). And, the application of the continuous violation doctrine to the plaintiffs' allegations regarding the purported existence of a policy or practice at UPS of failing to promote African Americans is not contrary to the holding in Morgan, which did not address pattern and practice claims.
Under the continuing violation doctrine, "the existence of a continuous policy or practice delays the commencement of the statute of limitations until the last discriminatory act in furtherance of that policy or practice." Salgado v. The City of New York, 2001 WL 290051 (S.D.N.Y. 2001). See, Cornwell v. Robinson, 23 F.3d 694, 703-04 (2d Cir, 1994). Plaintiffs allege a pattern and practice of failing to promote them based on their race. Plaintiffs point to a specific mechanism or tool used in the promotional meetings that they allege demonstrates a pattern and practice of disparate treatment in promotional decisions. Plaintiffs also allege specific instances where they were passed over for promotions within the three year statute of limitations. See Harris v. City of New York, 186 F.3d at 250 (for the continuing violation doctrine to apply a claimant must allege both the existence of any ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy). Therefore plaintiff's claims occurring prior to September 10, 1998 that demonstrate a pattern and practice of disparate treatment in the promotion process cannot be dismissed as time-barred through this motion for summary judgment. The continuing violation doctrine may be applied to instances claimed to stem from UPS's alleged racial discrimination in their promotion decisions.
Plaintiffs also allege that UPS retaliated against them since they demanded that the discriminatory conduct that they allege in this action cease. Cawley further alleges that the retaliation he was subject to was also causally connected to his retaining counsel.
Plaintiffs' claims of retaliation do not allege any policy or mechanism of retaliation, and accordingly the continuing violation theory does not apply to time-barred acts of retaliation based on allegations regarding a pattern or practice of retaliation. Bailey v. Colgate-Palmolive, 2003 WL 21108325 (S.D.N.Y. May 14, 2003). On the other hand, alleged acts of retaliation may be relevant to establishing plaintiffs' claim for a hostile work environment if plaintiffs can establish that such acts are sufficiently related to timely employment actions which form the basis for the hostile work environment claim. See Linder v. City of New York, 263 F.Supp. at 594. Accordingly, UPS's motion for summary judgment dismissing plaintiffs' claims based on acts of retaliation occurring outside the three-year limitations period is denied insofar as such acts may be timely as part of the hostile work environment claim.
Conclusion
In view of the above, it is
ORDERED that UPS's motion for summary judgment is granted to the extent that plaintiffs' discrimination claims based on discrete acts of discrimination occurring prior September 10, 1998 are time-barred; and it is further
ORDERED that UPS's motion for summary judgment is denied insofar as plaintiffs' claims may continue to the extent that they are based on allegations of a hostile work environment, including with respect to allegations of discriminatory acts or retaliation occurring before September 10, 1998; and it is further
ORDERED that UPS's motion for summary judgment is granted to the extent that plaintiffs' allegations regarding 'a pattern and practice' of retaliation are insufficient to state a cause of action; and it is further
ORDERED that UPS's motion for summary judgment is denied insofar as UPS seeks to dismiss plaintiffs' claims relating to a 'pattern or practice' of disparate treatment in the promotion process, including those allegations relating to conduct regarding the promotion process occurring prior to September 10, 1998.