Davis v. Buffalo Psychiatric Center, CIV-81-458E.

• Decision Date: 19 February 1985
• Docket Number: No. CIV-81-458E.,CIV-81-458E.
• Citation: 613 F. Supp. 462
• Parties: Robert N. DAVIS, Individually and on behalf of all others similarly situated, Plaintiff, v. BUFFALO PSYCHIATRIC CENTER; the New York State Office of Mental Health; the New York State Department of Mental Hygiene; and the New York State Office of Civil Service, Defendants.
• Court: U.S. District Court — Western District of New York

613 F. Supp. 462

Robert N. DAVIS, Individually and on behalf of all others similarly situated, Plaintiff, v. BUFFALO PSYCHIATRIC CENTER; the New York State Office of Mental Health; the New York State Department of Mental Hygiene; and the New York State Office of Civil Service, Defendants.

No. CIV-81-458E.

United States District Court, W.D. New York.

February 19, 1985.

COPYRIGHT MATERIAL OMITTED

Louis Steele, Buffalo, N.Y., for plaintiff.

Patrick O. McCormack, Asst. Atty. Gen., Buffalo, N.Y., for defendants.

MEMORANDUM and ORDER

ELFVIN, District Judge.

Plaintiff, an employee of the Buffalo Psychiatric Center, brings this class action lawsuit alleging employment discrimination due to his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1982 and the "equal protection" clauses of the Federal and New York State Constitutions. The Complaint sets forth causes of action alleging discriminatory acts by defendants in hiring, assigning, promoting, training, disciplining, discharging and demoting, as well as retaliating against black and male workers. Plaintiff has moved pursuant to Fed.R. Civ.P. rule 23(c)(1) and Local Rule 8(c) for an Order determining that this action is maintainable as a class action with plaintiff designated as the representative of all black and male persons who are presently employed or might in the future be employed by defendants. Defendants have moved to dismiss the Complaint on numerous grounds including the statute of limitations, failure to exhaust administrative remedies, failure to state a claim and the Eleventh Amendment. Defendants also seek a stay of pre-trial discovery pending the determination of their motion.

Rule 8(c) of the Local Rules of Practice of this Court requires that a motion for class action certification be brought within 60 days of the filing of a complaint. Such did not occur in this case and no reason therefor, tenable or otherwise, has been advanced. As a consequence class action certification is being denied.

Plaintiff began his employment at the Buffalo Psychiatric Center ("BPC") in 1955 and presently holds the position of a Community Mental Health Nurse, Grade 19. BPC is a comprehensive community mental health service center and is part of and administered by defendant the New York State Office of Mental Health ("OMH"). Defendant the New York State Department of Mental Hygiene ("DMH") was the precursor agency to OMH and defendants state that BPC remains a component of DMH. Defendant the New York State Office of Civil Service ("OCS") is an agency of the Executive Branch of the government of the State of New York and among its responsibilities is the staffing of BPC. Plaintiff alleges that OCS works in conjunction with BPC, OMH and DMH to implement and maintain the personnel policies at BPC.

Plaintiff states that, on at least two occasions (February 1976 and October 1977) he has been transferred from one program to another at BPC because he is a Black and a male. He also alleges that he was denied promotions in November 1975 and February 1977 due to impermissibly discriminatory reasons.

On or about July 29, 1976 plaintiff filed an individual employment discrimination charge with the Equal Employment Opportunity Commission ("the EEOC") alleging that he had been involuntarily assigned from BPC's Adolescent Unit to its Crisis Intervention Unit because of his race and his gender. On or about July 30, 1976 plaintiff filed similar charges with the New York's Division of Human Rights ("DHR"). Defendants point out that the only respondent was BPC and that no mention was made of discriminatory hiring, promotion, testing, training, disciplining, terminating or retaliation. On or about December 20, 1978 plaintiff amended his DHR complaint to add allegations concerning discrimination in more recent job assignments as well as in promotional examinations and promotions.

On March 6, 1980, after an investigation, DHR issued a determination dismissing plaintiff's charge of sex discrimination but finding that there was probable cause to believe that the claim of racial discrimination was valid. Conciliation efforts were then instituted. On March 2, 1981 the EEOC found there was no reasonable cause to believe plaintiff's charges and issued and mailed to plaintiff a Notice of Right to Sue. The EEOC's determination and Notice were received by plaintiff on March 7 or 8, 1981.¹ DHR determined April 23, 1981 that BPC had complied with a previously issued Order after Conciliation and that there was no reason to believe that plaintiff had been retaliated against for filing charges with DHR.

On June 5, 1981 plaintiff filed a pro se complaint against BPC with this Court. Thereafter plaintiff retained counsel and an Amended Complaint adding OMH, DMH and OCS was filed on or about January 18, 1982. The Amended Complaint contained allegations of numerous discriminatory practices that had not been included in the charges filed with the EEOC or DHR.

Defendants first assert that this Court lacks subject matter jurisdiction because plaintiff failed to initiate this action within the ninety-day period from receipt of the Notice of Right to Sue letter, as prescribed by 42 U.S.C. § 2000e-5(f)(1).² Defendants contend that March 7, 1981, the date that plaintiff received the letter, must be included in calculating the ninety-day period and therefore the last day timely to have commenced this action was on June 4, 1981. Defendants state that the ninety-day rule is mandatory and that this action must be dismissed inasmuch as it was commenced June 5, 1981. Although defendants' position that the date of receipt of the Right to Sue letter should be included in computing the period has been supported by two decisions — see Melendez v. Singer-Friden Corp., 529 F.2d 321, 323 (10th Cir. 1976); Bailey v. Boilermakers Local 667 of Intern. Broth., 480 F.Supp. 274, 282 (N.D.W.Va.1979) — the majority of courts that have addressed this issue have held that the date of receipt of the letter is to be omitted in making such computation. See Prophet v. Armco, 575 F.2d 579, 580 n. 1 (5th Cir.1978); Dunlap v. Sears, Roebuck & Co., 478 F.Supp. 610, 611 n. 2 (E.D.Pa. 1979); Geronymo v. Joseph Horne Co., 440 F.Supp. 1157, 1159 (W.D.Pa.1977). This latter position is consistent with Fed. R.Civ.P. rule 6(a) which provides that the date from which any designated period begins to run shall not be included in computing any period of time prescribed by any applicable statute. Therefore this Court finds that the date of receipt of the Right to Sue letter is not to be included in computing the ninety-day limitations period and that the original Complaint was timely filed June 5, 1981. Cf. Pearson v. Furno Const. Co., 563 F.2d 815, 819 (7th Cir.1977); Hudson v. Teamsters Local Union No. 957, 536 F.Supp. 1138 (S.D.Ohio 1982); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (Fed.R.Civ.P. rule 6(a) applicable in computing the ninety-day period under 42 U.S.C. § 2000e-5(f)(1)).

Defendants' next assertions, in their second affirmative defense, contain two separate grounds for dismissal of aspects of the Complaint. They first point to the requirement of a charge being brought to the EEOC against a party as a prerequisite to a later federal court action based on Title VII against such entity. See Vines v. Alabama By-Products, Inc., 527 F.Supp. 1020 (N.D.Ala.1981). Defendants contend that BPC was the sole respondent before the EEOC and therefore the Title VII causes of action must be dismissed as to OMH, DMH and OCS. However defendants' position fails to take heed of the well-recognized exception to the general requirement regarding the presence of a party before the EEOC. "Where that party is indeed partially responsible for the acts of discrimination, or exercises sufficient control over the discriminating party, it may be considered as the mere `alter ego' of the discriminating party, and the courts will assert jurisdiction over it as a proper party, regardless of plaintiff's failure to charge it before the EEOC." A. Larson, Employment Discrimination, § 49.42 (1983); accord, Glus v. G.C. Murphy, 562 F.2d 880 (3d Cir.1977); Koster v. Chase Manhattan Bank, 554 F.Supp. 285, 289 (S.D.N.Y.1983). A number of courts have allowed Title VII plaintiffs to join parties who were not charged before the EEOC as long as there exists a "substantial identity" between those named in the EEOC charge and the additional defendants. See Women in City Govern. United v. City of New York, 515 F.Supp. 295, 299 (S.D.N.Y.1981); Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316, 334 (W.D.N.Y. 1978). Defendants do not dispute the "identity of interest" among BPC and OMH and DMH but merely point to the fact that they are not "identical." Defendants' Memorandum of Law, at p. 16. While defendants state that OCS is a distinct entity with no "identity of interest" with BPC, OMH or DMH, plaintiff's allegations of OCS's role in the formulation and control of BPC's personnel policies are basically admitted by defendants' answer —see Answer, ¶ 8 — and this Court could properly exercise jurisdiction over OCS despite the absence of prior charges against it before the EEOC. There exists a sufficient degree of control or "identity of interest" to withstand defendants' motion to dismiss on this technical ground.

Defendants' second affirmative defense also raises statute of limitations problems due to the fact that the original Complaint only named BPC as a defendant. Plaintiff relies on the "relation back" doctrine of Fed.R.Civ.P. rule 15(c) in arguing that the claims against the three added defendants are timely. An amended pleading adding a new party may relate back to the date of the original pleading for statute of limitations purposes where the new party has received timely notice of the institution of the action so as to not be prejudiced in...