Summary
declining to dismiss a plaintiff's ADA claim for failure to exhaust where plaintiff raised the claim in a complaint to the NYSDHR
Summary of this case from Christiansen v. Omnicom Grp., Inc.Opinion
No. 00 Civ. 326 (SAS).
October 23, 2000.
Plaintiff (Pro Se): Sylvia Pimentel.
For Defendants: Stacey L. Cohen, Esq., Assistant Corporation Counsel of the City of New York.
MEMORANDUM OPINION AND ORDER
Sylvia Pimentel, a Puerto Rican female, alleges that, as a result of her race, sex, national origin, and disability (Hepatitis C) and in retaliation for filing several complaints with state and local agencies, she was: unfairly demoted; continuously harassed and berated by her supervisors, co-workers and subordinates; unfairly disciplined by her supervisors; denied a transfer; and she received poor performance evaluations that did not reflect the true quality of her work. Her claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA")
Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). After Defendants' motion was filed, Plaintiff submitted a letter dated September 26, 2000, which attached an Equal Employment Opportunity Commission ("EEOC") right-to-sue letter issued on August 21, 2000 (Federal Charge No. 16F-98-0187) in response to a complaint filed by Plaintiff on January 13, 1998 with the City of New York Commission on Human Rights ("CNYCHR") Plaintiff's CNYCHR complaint alleged that her demotion from the position of Supervisor I to Caseworker was a result of national origin discrimination. Because this right-to-sue letter renders much of Defendants' motion moot, a detailed discussion of the issues raised is not warranted. I will therefore decide Defendants' motion in a summary fashion.
1. Defendants' motion to dismiss Plaintiff's Title VII claim of demotion based on national origin discrimination due to failure to exhaust administrative remedies is denied as moot as the newly issued EEOC right-to-sue letter is based on a charge alleging national origin discrimination.
2. Defendants' motion to dismiss those claims of race and national origin discrimination that are unrelated to her demotion is denied as these claims are "reasonably related" to the claims upon which the August 21, 2000 EEOC right-to-sue letter was issued. See Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (to be "reasonably related" to a claim contained in an EEOC right-to-sue letter, the claim must "fall within the scope of the EEOC investigation on the filed claim").
3. Defendants' motion to dismiss Plaintiff's ADA claim for failure to exhaust administrative remedies is denied as Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") on September 22, 1999 which contained this claim. See NYSDHR Determination and Order dated 2/24/2000 ("2/24/2000 Order") (Federal Charge No. 16GA00077). No right-to-sue letter was issued because the NYSDHR dismissed the complaint on grounds of administrative convenience on February 24, 2000, noting that the instant action is being litigated in federal court. See 2/24/2000 Order at 1. A plaintiff, particularly one proceeding pro se, ought not be penalized because of an administrative error. See Cooper v. Wyeth Ayerst Lederle, 34 F. Supp.2d 197, 202 (S.D.N.Y. 1999) ("agency errors should not work to a claimant's detriment"); Zambuto v. American Tel. and Tel. Co., 544 F.2d 1333, 1336 (5th Cir. 1977) ("we will not visit the effects of EEOC's erroneous practice on [plaintiff].") Defendants' motion is accordingly denied.
While this Federal Charge Number does not correspond to the charge number on Plaintiff's September 22, 1999 NYSDHR complaint, this Court has been informed by the NYSDHR that the 2/24/2000 Order relates to the NYSDHR complaint in question. This is verified by the fact that the "SDHR" number in the upper right hand corners of both the NYSDHR complaint and the Determination and Order is 1A-E-DNO-99-2306947-D.
4. Defendants' motion to dismiss Plaintiff's discrimination claims as time-barred is also denied, as the EEOC's issuance of a right-to-sue letter based on the allegations of Plaintiff's January 13, 1998 CNYCHR complaint shifts the time-bar date to October 18, 1997 (300 days prior to January 13, 1998). The actions that give rise to Plaintiff's claims occurred after October 18, 1997, and, as such, fall within the 300-day limitations period.
5. Similarly, Defendants' motion to dismiss Plaintiff's Title VII retaliation claim is denied because Plaintiff received an EEOC right-to-sue letter relating to a claim of retaliation, Federal Charge No. 16G-99-0038, covering acts of retaliation occurring after the filing of her CNYCHR complaint on January 13, 1998.
This right-to-sue letter was issued by the EEOC on October 18, 1999 in response to a complaint filed with the NYSDHR on September 1, 1998, alleging retaliation for filing her CNYCHR complaint.
6. Finally, the Administration for Children's Services ("ACS") and its Office of Child Support Enforcement Unit ("OCSE") move to dismiss on the ground that neither is a separate, suable entity. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 17, § 396. Individual City agencies are not suable entities unless specified by law. See Vasquez v. City of New York, 99 Civ. 4606, 2000 WL 869492, at *4, (S.D.N.Y. Jun. 29, 2000); East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992) As the ACS is a City agency, and because it has not been authorized as a suable entity by law, it is not a proper party to this action. Because OCSE is a subdivision of the ACS, it too is not a suable entity. These defendants are therefore dismissed from this action.
In addition, as the CNYCHR complaint upon which Plaintiff's EEOC right-to-sue letter is based alleges discriminatory conduct on the part of Valerie Powell, Plaintiff's former supervisor, Plaintiff is granted leave to amend her Complaint, within thirty days of the date of this Order, to properly plead a state law discrimination claim against Ms. Powell.
SO ORDERED: