Hostile Work Environment Claim Against DOE Held Timely Under the “Continuing Violation Doctrine”

In Thomas v. City of New York et al, No. 507887/2018, 2019 N.Y. Slip Op. 51822(U), 2019 WL 6041948 (Sup Ct, Nov. 01, 2019), the court, inter alia, held that the petitioner’s hostile work environment claim was timely under the “continuing violation doctrine.”

Petitioner, a guidance counselor, alleged that she was subject to age discrimination and a hostile work environment, and that she was unfairly and discriminatorily “excessed”.  She filed the instant petition seeking leave to file a late notice of claim, which was to have been served within 90 days after her claim arose under Education Law 3813.

The court granted the petition, finding that the Notice of Charge of Discrimination and accompanying Intake Questionnaire, which petitioner filed with the EEOC less than 6 months after she was excessed, “gave sufficient detail and actual notice of her age discrimination claim to respondent within a reasonable time after 90 days.” It also found that “respondent has not demonstrated that it will suffer any prejudice as a result of the late notice of claim because mere passage of time does not result in substantial prejudice in the absence of some showing of actual injury.”

The court next rejected respondents’ statute of limitations argument, explaining (citations omitted):

Petitioner’s claims against the DOE and former Chancellor, based on hostile work environment and discriminatory acts which occurred prior to April 18, 2017 are not time-barred. On a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground that the claim is time-barred, the court must take the allegations in the complaint as true and resolve all inferences in favor of the petitioner. Construing the facts as alleged in the complaint in the light most favorable to petitioner, the court finds that respondent failed to establish its prima facie entitlement to dismissal.

A “hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute unlawful discriminatory practice.” Thus, under the “continuing violation doctrine,” a claim will be considered timely as long as one of the alleged acts occurred within the limitations period and the other acts complained of are part of the same unlawful practice, even if they occurred outside the limitation period.

This court finds that the acts which allegedly occurred during the 2015-16 and 2016-17 school years are sufficiently similar to the final act of discrimination of being excessed. Thus, being denied permission to work in an after-school program, a bathroom and office key and the necessary equipment for her profession, and being assigned administrative duties which were inappropriate for her position, justify the conclusion that the acts were part of a single discriminatory practice.

Finally, the court denied the motion to dismiss under CPLR 3211(a)(7) based on lack of merit, noting that “[t]he merit of a petitioner’s claims is not a factor to be considered in determining an application for leave to serve a late notice of claim unless the underlying claims are patently without merit” and “[r]espondent has failed to demonstrate at this juncture that the underlying claims are Patently without merit.”

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