Zangrillo v. Fashion Institute of Technology

• Decision Date: 28 January 1985
• Docket Number: No. 83 Civ. 6589 (DNE).,83 Civ. 6589 (DNE).
• Citation: 601 F. Supp. 1346
• Parties: Frances ZANGRILLO, Plaintiff, v. FASHION INSTITUTE OF TECHNOLOGY and United College Employees, Defendants.
• Court: U.S. District Court — Southern District of New York

601 F. Supp. 1346

Frances ZANGRILLO, Plaintiff, v. FASHION INSTITUTE OF TECHNOLOGY and United College Employees, Defendants.

No. 83 Civ. 6589 (DNE).

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

January 28, 1985.

Jose A. Rivera, Brooklyn, N.Y., of counsel, for plaintiff.

Phillips, Nizer, Benjamin, Krim & Ballon, Marc L. Silverman, New York City, of counsel, for defendant Fashion Institute of Technology.

James R. Sandner, Susan Bloom Jones, New York City, of counsel, for defendant United College Employees.

OPINION AND ORDER

EDELSTEIN, District Judge:

In September of 1983, plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against her employer, Fashion Institute of Technology ("FIT"), and her union, United College Employees ("UCE"). By Memorandum Endorsement dated March 8, 1984, Judge Kevin Thomas Duffy granted plaintiff leave to amend her complaint to add a cause of action under 42 U.S.C. § 1983 against both defendants and a cause of action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., against defendant FIT.¹ The amended complaint alleges that defendants denied plaintiff seniority rights accumulated while absent from work on maternity leave.

Defendants have moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Defendants contend that the cause of action under Title VII is time barred because plaintiff failed to file a timely charge with the Equal Employment Opportunity Commission ("EEOC"). Defendants also contend that the cause of action under 42 U.S.C. § 1983 is barred by New York's three year statute of limitations. Finally, defendant FIT contends that the court lacks jurisdiction over it under Title IX of the Education Amendments of 1972.

FACTUAL BACKGROUND

The complaint sets forth the following facts which, for purposes of the motion to dismiss, are deemed true.

Plaintiff has been employed by FIT as a teacher since 1956 and received tenure in 1962. She spent 1963 through 1965 on maternity leave and returned to teaching on a part-time basis in 1965. Defendants' actions with regard to this two year maternity leave are the subject of this action.

Plaintiff was assigned as an Adjunct Assistant Professor, effective September, 1967. In February of 1968, upon completion of the Fall semester, plaintiff was "dropped" by the Fashion Design Department ("the department") at FIT, purportedly because there were no openings. Plaintiff alleges that at this time, part-time untenured teachers were retained in the department. Plaintiff's discharge on February 1, 1968 is the first discriminatory act alleged in the amended complaint.

Plaintiff was reinstated in the department with continuous seniority and tenure in February of 1973. During that year, however, FIT and UCE entered into a collective bargaining agreement that prohibits the accrual of seniority credit for programming purposes during maternity leaves. Plaintiff alleges that because of this collective bargaining agreement, FIT failed to pay her a proper salary consistent with a continuation of her seniority and tenure. In June of 1973, plaintiff filed a grievance with UCE. In March of 1976, the arbitrator presiding over the grievance proceedings ruled that plaintiff, by her absence, had constructively resigned and thus her subsequent reinstatement was subject to the discretion of FIT. FIT's denial to plaintiff of salary and other fringe benefits upon her reinstatement in February of 1973, constitutes the second discriminatory act alleged.

Plaintiff further alleges that although she was denied salary and other benefits by FIT, she did not lose her rank for purposes of program assignments in the department. However, on June 9, 1975, UCE filed a grievance with FIT charging that the department's program assignment for the year 1975-76 violated the collective bargaining agreement, by crediting individuals, such as plaintiff, for time spent on maternity leave. Effective February 1, 1977, a new seniority list was established based on actual teaching service instead of initial date of hire seniority. The grievance filed by UCE on June 9, 1975, constitutes the third discriminatory act alleged.

On January 9, 1977, plaintiff filed a charge of employment discrimination with the EEOC. Amended Complaint at ¶ 7. On June 11, 1983, plaintiff received a right-to-sue letter issued by the EEOC. Id. at ¶ 8.

DISCUSSION

The Title VII Claim.

Section 706(e) of the Civil Rights Act of 1964, as amended, provides that the EEOC charge "shall be filed by or on behalf of the person aggrieved within 300 days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). Plaintiff's entitlement to relief under Title VII is predicated on the filing of a timely charge with the EEOC. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).

The first step in determining whether plaintiff has filed a timely charge is to determine when the period for filing of the EEOC charge commenced. This requires the court to "identify precisely the `unlawful employment practice' of which plaintiff complains." Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). The gravaman of the amended complaint is that plaintiff was denied seniority credit for time spent on maternity leave and for child rearing. In her complaint before the EEOC, plaintiff alleged that the unlawful act is the "1975 collective bargaining agreement, entered into by the defendants, which takes away from women seniority accrued while on maternity." Defendants contend that the last "unlawful employment practice" complained of occurred on June 9, 1975, when the UCE filed a grievance against FIT. Plaintiff contends that the last "unlawful employment practice" occurred on February 1, 1977, when FIT established a new seniority list based on actual teaching service, as opposed to initial date of hire.

Because the EEOC charge was filed on January 7, 1977, "the Court must find that the alleged discriminatory acts occurred on or before that date." Vogel v. Torrance Bd. of Ed., 447 F.Supp. 258, 262 (C.D.Cal.1978). Plaintiff, in order to comply with Section 706, must allege discriminatory events occurring within the 300 days preceding January 7, 1977. As to the alleged discriminatory act of February 1, 1977, plaintiff has not filed an EEOC charge. Because the filing of an EEOC charge is a jurisdictional prerequisite to a Title VII action, the court cannot consider the alleged discriminatory act of February 1, 1977. Id. at 262 n. 15.

Even if the court could consider acts by the defendants allegedly committed after the EEOC charge was filed, plaintiff still would have failed to satisfy the 300 day requirement. It is apparent from the face of the complaint, plaintiff's own actions, and the affidavits and exhibits submitted on behalf of defendants,² that the February 1, 1977 publication of the program assignments was not an "independent act of discrimination," Delaware State College v. Ricks, supra, 449 U.S. at 257 n. 8, 101 S.Ct. at 1132 n. 8, but that plaintiff was aware of FIT's policy regarding maternity leave no later than June 9, 1975. In paragraphs 26 and 28 of the amended complaint plaintiff cites the June 9, 1975 "union grievance" as the act which denied plaintiff the "benefits of the assignment of program policy in the Fashion Design Department." Moreover, plaintiff filed: (1) a grievance to reverse the UCE's grievance on July 15, 1975; (2) charges based on the same facts with the New York State Division of Human Rights on August 15, 1975; and (3) an EEOC charge on January 7, 1977, a month earlier than the publication of the "official" seniority list. Under Ricks, supra, plaintiff was required to file the EEOC charge 300 days after June 9, 1975, the date when FIT and UCE "made and communicated" the decision to deny seniority rights.³

The second step in determining whether plaintiff filed a timely charge with the EEOC is to determine whether plaintiff has alleged a "continuing violation." Plaintiff alleges that since her reinstatement in 1973, she was discriminated against in every paycheck and in her low position for assignment of program purposes. Taking these allegations as true, plaintiff has not sufficiently alleged a continuing violation.

In Collins v. Manufacturers Hanover Trust Co., 542 F.Supp. 663 (S.D.N.Y.1982), this court stated that when "there is a `reasonable ascertainable date on which the act occurred, that is the day on which the statute began to run,' notwithstanding that plaintiff may still feel some effects as a result of the prior discriminatory acts." Id. at 670 (quoting Marshall v. American Motors Corp., 475 F.Supp. 875 (E.D.Mich. 1979). See also Ganguly v. New York State Dep't of Mental Hygiene, 511 F.Supp. 420, 427 (S.D.N.Y.1981) (plaintiff must allege continuing violations, not merely the results of past violations, in order to obtain relief for otherwise time-barred acts). The rationale behind the statutory period is to "protect employers from the burden of defending claims arising from employment decisions that are long past." Ricks, supra, 449 U.S. at 256-57, 101 S.Ct. at 503.

On the face of the complaint, the "reasonable ascertainable dates on which the act occurred" are June of 1973 and June 9, 1975. Any other "acts" alleged by the plaintiff are merely the effects of these two acts. UCE's and FIT's decision to compensate plaintiff and to assign programs based on actual teaching service had "long past" by the time plaintiff filed her EEOC charge in January of 1977.⁴ Accordingly, plaintiff's cause of action under Title VII must be dismissed.

The 42 U.S.C. § 1983 Claim.

Defendants contend that the § 1983 claims are barred by the statute of limitations.

Because 42 U.S.C. § 1983 contains no statute of limitations, the limitations period applicable to § 1983 actions is determined by...