Hostile Work Environment Claim Dismissed; Continuing Violation Doctrine Held Inapplicable

In Gunning v. New York State Justice Center for Protection of People With Special Needs, 2020 WL 5203673 (N.D.N.Y., September 1, 2020), the court, inter alia, dismissed plaintiff’ hostile work environment claim as untimely. This decision is instructive as to the application of the “continuing violation doctrine” in the context of a hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.

From the decision:

[Defendant] maintains that Gunning’s hostile work environment claim is untimely because she does not allege that any acts which would give rise to a hostile work environment occurred within 300 days prior to the filing of her EEOC charge. (Dkt. No. 46, Attach. 1 at 14.) In response, Gunning asserts that, because she filed her EEOC charge within 300 days of her termination, which was “the final act in a chain of events that collectively created a hostile work environment based on her sex,” all preceding related acts that occurred outside the 300-day time period are encompassed by the continuing violation doctrine, and thus not time barred. (Dkt. No. 47 at 12-13.) The court agrees with the Justice Center.

Gunning filed her charge with the EEOC on May 29, 2018. (Compl. ¶ 6; Dkt. No. 46, Attach. 3.) Thus, only those acts that occurred 300 days before May 29, 2018 are actionable. See Patterson, 375 F.3d at 220. The only allegation in Gunning’s complaint that took place within this 300-day-period is the allegation that, on August 1, 2017,4 Gunning was told “she had five minutes to resign or she would be fired.” (Compl. ¶ 65.)

“It is well established that termination, whether through discharge or resignation, is a single act, discrete in nature,” which does not implicate the continuing violation doctrine. See Percy v. New York (Hudson Valley DDSO), 264 F. Supp. 3d 574, 582-83 (S.D.N.Y. 2017) (citations omitted) (“[B]ecause Plaintiff’s resignation or forced retaliatory termination is a discrete act, it cannot be considered a continuation of the alleged sexual discrimination Plaintiff contends she experienced previously.”). As such, Gunning’s termination cannot save her untimely hostile work environment allegations. See Brown v. Dep’t of Educ. of City of New York, No. 10 CIV 5023, 2012 WL 1319859, at *4 (S.D.N.Y. Apr. 11, 2012) (“[Plaintiff’s] termination … is a ‘discrete act’ of alleged discrimination and therefore unable [to] ‘pull in’ her earlier hostile work environment allegations.” (citation omitted)), aff’d, 513 F. App’x. 89, 91 (2d Cir. 2013); Patterson, 375 F.3d at 220 (“[T]he mere fact that an employee was dismissed within the statutory period cannot be used to pull in[to the statutory period] a time-barred discriminatory act.” (internal quotation marks, alteration, and citation omitted)); Skates v. Inc. Vill. of Freeport, 15-CV-1136, 2016 WL 1459659, at *10 (E.D.N.Y. Jan. 28, 2016), report and recommendation adopted by 2016 WL 1452391 (E.D.N.Y. Apr. 12, 2016) (“[T]ermination constitutes an unquestionably discrete act with its own filing deadline…. As such, that act cannot be part of a preceding and continuing violation.” (internal quotation marks and citation omitted)).

Based on this, the court concluded that – since plaintiff plaintiff failed to allege any act contributing to the alleged hostile work environment occurring within 300 days of the filing of her EEOC charge (and since her termination, a separate and discrete act, was unable to “pull in” earlier hostile work environment allegations) – plaintiff’s hostile work environment claim was untimely.

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