Court Dismisses Discrete Title VII “Failure to Promote” Claim as Untimely

In Paladino v. Rochester Institute of Technology, Case # 22-CV-6028-FPG, 2022 WL 4922289 (W.D.N.Y. Oct. 4, 2022), the court dismissed, as untimely, plaintiff’s sex/sexual-orientation discrimination claim (based on defendant’s alleged failure to promote her) asserted under Title VII of the Civil Rights Act of 1964.

This case illustrates the difference between claims premised on a “discrete” act of discrimination, on the one hand, and those premised on a so-called “hostile work environment,” on the other.

From the decision:

To bring a lawsuit under Title VII, a plaintiff must first file a charge of discrimination with the EEOC or other state administrative agency. Goins v. Finger Lakes Serv. Grp., Inc., No. 13-CV-6551-FPG, 2014 WL 204207, at *1 (W.D.N.Y. Jan. 17, 2014); see also 42 U.S.C. § 2000e-5(e)(1), (f)(1). A plaintiff must file her charge of discrimination with the EEOC within 300 days after the date of the alleged discriminatory action. Goins, 2014 WL 204207, at *1. Therefore, “[a] Title VII claim will be dismissed as untimely if the plaintiff has not filed a complaint with the…appropriate state or local agency within 300 days of the occurrence of the alleged employment practice.” Brightman, 2021 WL 1999466, at *4.

In this case, it is undisputed that Plaintiff did not file a charge of discrimination with the NYSDHR until more than one year after she was denied her promotion in February 2018. See ECF No. 6 ¶¶ 11, 19, 22. Therefore, her Title VII claim premised on that act of discrimination is untimely.

To avoid this result, Plaintiff invokes the continuing violation doctrine, arguing that RIT’s failure to promote her in February 2018 was part of a “steady barrage of discriminatory and harassing conduct” that persisted to within 300 days of her administrative complaint.1 ECF No. 10 at 11-12. The continuing violation doctrine does not apply under these circumstances. The Second Circuit has held unequivocally that “a plaintiff may recover for a failure to promote— regardless [of] whether it was caused by an ongoing discriminatory policy—only if [she] files an EEOC charge within…300 days of that decision.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012) (emphasis added); see also id. (“[E]very failure to promote is a discrete act that potentially gives rise to a freestanding Title VII claim with its own filing deadline.”). In other words, “the continuing violation[ ] doctrine does not permit a plaintiff to bring untimely claims for freestanding discrete acts of discrimination or retaliatory actions, such as a failure to promote or termination, even if they are related to acts alleged in timely filed charges.” Thomson v. Odyssey House, No. 14-CV-3857, 2015 WL 5561209, at *9 (E.D.N.Y. Sept. 21, 2015); see also Chin, 685 F.3d at 157 (“Discrete acts…which fall outside the limitations period[ ] cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period.”).

Accordingly, Plaintiff may not maintain a discrete Title VII discrimination claim based on the February 2018 failure to promote.

The court did note, however, that it was not ruling on whether or how the alleged failure to promote was relevant to plaintiff’s other claims, including her hostile work environment claims.

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