Ivey v. United States Equal Employment Opportunity Commission et al
Filing
29
ORDER denying 28 Motion to Amend or Correct; granting 20 Motion to Dismiss. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 8/29/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARVIS M.
IVEY,
Plaintiff,
DECISION and ORDER
09-CV-6337T
-vHIGHLAND HOSPITAL,
Defendant.
INTRODUCTION
By Complaint dated June 30, 2009, plaintiff, Marvis Ivey,
(“Ivey”) proceeding pro se, brought the instant action against
defendants United States Equal Employment Opportunity Commission
(“EEOC”), Highland Hospital, and the United States of America
claiming that Highland Hospital, her former employer, discriminated
against her on the basis of her race, age, and religion, and that
the
(EEOC)
failed
to
adequately
address
her
complaints
of
discrimination.
By Decision and Order dated October 23, 2009, I dismissed
plaintiff’s Complaint, along with two other Complaints filed by the
plaintiff, on grounds that plaintiff failed to state a claim upon
which relief could be granted. Ivey appealed this Court’s Decision
and Order, and by a Decision dated January 27, 2010, the Second
Circuit
Court
of
Appeals
vacated
this
Court’s
dismissal
of
plaintiff’s claims against Highland Hospital, and directed this
Court to allow plaintiff to amend her Complaint with respect to her
claims against Highland Hospital.
Thereafter, on September 20,
2011, Ivey filed an Amended Complaint against Highland Hospital
alleging that she was unlawfully discriminated against by being
terminated from her employment on or about June 23, 2009.
Upon
review of the Amended Complaint pursuant to 28 U.S.C. § 1915, the
Court directed Ivey to file her right-to-sue letter issued by the
EEOC permitting plaintiff to file her action against the defendant.
On November 28, 2011, plaintiff filed two separate right-to-sue
letters, each dated December 27, 2010, approximately 18 months
after plaintiff filed the instant case.
Defendant now moves to dismiss plaintiff’s Amended Complaint
on
several
grounds.
Specifically,
defendant
contends
that:
(1) plaintiff’s appeal of the dismissal of her action against
Highland Hospital was dismissed with prejudice, and therefore her
Amended Complaint is barred under the doctrines of res judicata,
collateral estoppel, and the law-of-the-case; (2) the plaintiff
failed to timely serve the original Complaint; (3) plaintiff failed
to file an action within 90 days of receiving her right to sue
letters;
(4)
plaintiff’s
termination
claims
are
time-barred;
(5) plaintiff failed to exhaust her administrative remedies; and
(6)
plaintiff
has
failed
to
establish
the
violation
of
a
constitutional right.
Plaintiff cross-moves to amend the Amended Complaint to add as
a defendant her former supervisor Sharon Nersinger, and seeks
damages in the amount of one million dollars against her.
For the reasons set forth below, defendant’s motion to dismiss is
granted, and plaintiff’s motion to amend is denied.
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DISCUSSION
Marvis Ivey has filed several discrimination actions against
various defendants, including individual attorneys, the President
of the United States, bar associations, and the E.E.O.C.
All of
plaintiff’s actions have been dismissed, and plaintiff has been
barred from filing additional actions in the Western District of
New York without
prior approval.
With respect
to
defendant
Highland Hospital, plaintiff alleges in her Amended Complaint that
she was terminated from her employment based on discrimination
against her, presumably on the basis of her race.
I find that plaintiff has failed to exhaust her administrative
remedies with respect to her claim against Highland Hospital, and
therefore, her Amended Complaint must be dismissed.
Initially, I
note that with respect to her Original Complaint filed on June 30,
2009, plaintiff had not yet received a right-to-sue letter from the
E.E.O.C., and therefore, she was not entitled to bring her lawsuit
at that time.
It is well settled that prior to bringing an
employment discrimination claim in federal court, a plaintiff must
first exhaust his or her administrative remedies by filing an
administrative complaint with the Equal Employment Opportunity
Commission
investigate
(“EEOC”),
the
or
with
allegations
investigated by that agency.
a
and
state
allowing
such
authorized
to
claims
be
to
45 U.S.C. § 2000e-5(c)(Title VII
claims); 29 U.S.C. §§ 626(d), 633(b);
203 (2nd Cir. 1991).
agency
Johnson v. Palma, 931 F.2d
Until a plaintiff receives a right-to-sue
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letter from the administrative agency investigating discrimination
claims,
the
plaintiff
has
failed
to
exhaust
his
or
her
administrative remedies, and may not bring a discrimination action
in federal court.
Jones v.
DaimlerChrysler Corp., U.S. Dist.
LEXIS 62380, *5 (N.D.N.Y. Aug.
With
respect to
27, 2007).
plaintiff’s
Amended
Complaint,
plaintiff
alleges that she was unlawfully terminated from her employment on
June
23,
2009.
I
find
that
these
claims
are
time
barred.
Plaintiff filed her administrative claims of unlawful termination
against Highland Hospital on September 13, 2010 (more than one-year
after she filed the instant case).
Administrative complaints of
discrimination, however, must be filed with the EEOC within 300
days of when the plaintiff knew of or had reason to know of the
alleged unlawful employment action . . . .” Lennon v. City of New
York, 392 F.Supp.2d 630, 638 (S.D.N.Y.,2005)(citing
42 U.S.C. §
2000e-5(e); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 71213 (2nd Cir. 1996).
While not a jurisdictional limitation, the
300-day limit has been construed as a statute of limitations, and
pursuant to the Supreme Court’s opinion in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002), “strict
adherence” to the limitations period is required.
In
the
administrative
instant
case,
complaint
plaintiff
alleging
did
unlawful
not
file
termination
her
until
September 13, 2010, 444 days after she was allegedly terminated.
Accordingly, her administrative complaint of unlawful termination
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is time-barred, and this court may not consider her claim. Because
plaintiff has only alleged a claim for unlawful termination from
her employment in her Amended Complaint, there are no further
discrimination
claims
for
the
court
to
consider,
and
her
termination claims must be dismissed with prejudice.
To the extent that plaintiff attempts to allege constitutional
violations not subject to administrative exhaustion requirements,
those claims fail as a matter of law as the defendant Highland
Hospital is a private employer not subject to liability as a state
actor with respect to plaintiff’s constitutional claims.
With respect to defendant’s claim that plaintiff’s Amended
Complaint must be dismissed because the Second Circuit Court of
Appeals, by mandate dated June 22, 2010, appeared to dismiss
plaintiff’s Appeal as of April 2, 2010 in its entirety, including
all claims against Highland Hospital, due to plaintiff’s failure to
perfect her appeal, the court notes that while plaintiff’s Appeal
was apparently dismissed in its entirety, the Mandate issued on
April 9, 2010 (seven days after the Appeal was apparently dismissed
in its entirety), suggests that the Court of Appeals intended to
allow plaintiff the opportunity to amend her Complaint.
Court,
in
an
abundance
of
caution,
has
followed
the
This
Second
Circuit’s April 9, 2010 Mandate despite the fact the June 22, 2010
Mandate appears to have dismissed plaintiff’s original Appeal in
its entirety.
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For the reasons set forth above, I deny plaintiff’s motion to
amend the Amended Complaint.
Plaintiff’s proposed Second Amended
Complaint fails to remedy the deficiencies present in her Amended
Complaint, and because a supervisory employee may not be held
individually
plaintiff’s
liable
for
allegations
alleged
of
violations
discrimination
of
against
Title
her
VII,
former
supervisor fail to state a claim upon which relief may be granted.
See Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir. 1995)
CONCLUSION
For the reasons set forth above I grant defendant’s motion to
dismiss plaintiff’s Amended Complaint, and dismiss the Complaint in
its entirety.
I further deny plaintiff’s motion to amend her
Amended Complaint.
Moreover, the Court hereby certifies, pursuant
to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would
not be taken in good faith, and leave to appeal to the Court of
Appeals as a poor person is denied.
U.S. 438(1962).
Coppedge v. United States, 369
Any request to proceed on appeal as a poor person
should be directed, on motion, to the United States Court of
Appeals for the Second Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
August 29, 2012
Rochester, New York
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