DECISION and ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Plaintiff Leslie Root, proceeding pro se,1 commenced this action asserting claims for employment discrimination under the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII), the Age Discrimination in Employment Act ("ADEA") and the New York State Human Rights Law ("NYSHRL"). Now before the Court is Defendant's renewed motion to dismiss the Complaint for improper service. (Docket No. [#5]). The application is granted and this action is dismissed with prejudice.

FACTUAL BACKGROUND

The reader is presumed to be familiar with the Court's prior rulings in this action, which discuss the underlying facts of Plaintiff's claims. Briefly, Plaintiff was previously employed by Corning Community College. On or about May 11, 2016, Plaintiff filed an employment discrimination charge/complaint against the College with the U.S. Equal Employment Opportunity Commission ("EEOC"). The EEOC complaint alleged discrimination on the basis of disability and age, as well as retaliation. On April 25, 2017, the EEOC issued Plaintiff a right-to-sue letter, which she received on April 27, 2017. On July 26, 2017, exactly ninety days after she received the right-to-sue letter, Plaintiff filed the instant action, proceeding pro se.

On February 20, 2018, the College filed a motion to dismiss, alleging inter alia that Plaintiff had never properly served the summons and complaint, and that her claims were therefore time barred. On that point, Defendant asserted that federal discrimination claims must be filed within ninety days after receipt of a right-to-sue letter, and that although Plaintiff filed this action on the ninetieth day, she failed to make service within ninety days thereafter as required by Fed. R. Civ. P. 4(m), causing the limitations period to begin running again, and making the action untimely.

On January 30, 2019, the Court issued a Decision and Order [#12] granting in part and denying in part the motion to dismiss. The Court dismissed all claims except Plaintiff's disability-discrimination claims under the ADA and NYHRL and her sexual harassment claim under the NYHRL. Further, the Court extended Plaintiff's time for service, stating:

Decision and Order [#12] at pp. 29-30 (emphasis added).

On January 31, 2019, the Clerk of the Court made a docket entry [#13], indicating that a new summons had been issued and mailed to Plaintiff at the address she had provided to the Court. Assuming that Plaintiff received the mailing three days later, the she was required to serve Defendant within twenty-one days thereafter, or February 24, 2019. It is undisputed, however, that Plaintiff never served the reissued summons.

Subsequently, by letter dated March 25, 2019, Defendant Corning Community College renewed its request to dismiss the remaining claims in this action, on the grounds that Plaintiff had failed to comply with the service deadline contained in the Decision and Order (Docket No. [#12]) issued on January 30, 2019, and Plaintiff's remaining claims are now barred by the applicable statute of limitations.

In response to this letter motion, on March 27, 2019, the Court issued a Motion Scheduling Order [#14], directing Plaintiff to respond. The following day, March 28, 2019, the Court received a telephone call from Plaintiff, who had received Defendant's letter motion, but apparently not the Court's Motion Scheduling Order. Plaintiff spoke with the Court's Judicial Assistant, and indicated that she had never received the newly-issued summons from the Clerk of the Court, despite what docket entry [#13] stated. Plaintiff further stated that when she had previously appeared in Court for oral argument of the motion to dismiss, on October 25, 2018, the Court had been rude to her, and "did not believe her." The Court's Judicial Assistant informed Plaintiff that she would need to put her response to Defendant's renewed motion to dismiss in writing, whereupon Plaintiff stated that she would be filing a complaint against the Court with "the ethics committee," and then hung up. The following day, the Court received an unsworn letter from Plaintiff, stating as follows: "Dear Judge Siragusa, As previously, I have not received a summons. You may recall the court mocked me for this same problem during the last hearing." The "court" in this instance, of course, refers to the undersigned.

In response to these communications, the Court reviewed the audio recording of the appearance on October 25, 2018, at which Plaintiff was claiming the Court had been rude to her and had mocked her. The Court is now in receipt of a written transcript of that appearance, which is attached hereto as Exhibit A.

On April 4, 2019, the Court issued an Amended Motion Scheduling Order [#15], stating in pertinent part:

Amended Motion Scheduling Order [#15].

However, Plaintiff did not submit a response to Defendant's renewed motion to dismiss, nor did she otherwise contact the Court. Consequently, on May 1, 2019, the Court issued a further order [#19], indicating that it would hear oral argument on June 6, 2019, at 3:00 p.m. In that regard, although the Court had previously indicated in its Amended Motion Scheduling Order that it would not hear oral argument, the Court wanted to give Plaintiff an additional opportunity to explain orally, if possible, why she had not complied with such order. Significantly, though, the Court indicated in its Order scheduling oral argument that Plaintiff's failure to appear for oral argument could result in dismissal of the action with prejudice.

On June 6, 2019, at the appointed time, Defendant's counsel appeared for oral argument, but Plaintiff did not appear. Consequently, the Court placed a telephone call to Plaintiff, to ascertain why she was not in Court. A transcript of the call is attached hereto as Exhibit B. The entire conversation is transcribed as follows:

In sum, Plaintiff's response to the Court's call consisted of threatening to file a motion for recusal and then hanging up the telephone.

The Court notes that Plaintiff never informed the Court that she would be unable to attend oral argument due to surgery, nor is the Court aware of any basis upon which she could make a legitimate motion for recusal. The Court further points out that if Plaintiff had indicated in a sworn writing that she never received the re-issued summons, the Court would have conducted a hearing on the matter. However, because Plaintiff has chosen not to respond to Defendant's renewed motion to dismiss as directed, and because she failed to appear for oral argument without adequate justification or excuse despite having been warned that her failure to appear could result in the dismissal of the action with prejudice,2 the Court is granting defendant's unopposed renewed motion to dismiss. In that regard, Plaintiff failed to serve Defendant with a summons and complaint within the time specified by Rule 4(m) of the Federal Rules of Civil Procedure, as extended by the Court, and consequently the 90-day statute of limitations on her remaining claims, which had been tolled, has now expired.

CONCLUSION

Defendant's renewed3 motion [#5] to dismiss this action is granted and this action is dismissed with prejudice. The Clerk of the Court is directed to close this action. The Court 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. Coppedge v. United States, 369 U.S. 438 (1962). Further requests 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.

SO ORDERED.

EXHIBIT A

PROCEEDINGS

* * *

THE COURT: For the record, this is Root versus Corning Community College.

The Court notes the presence of the plaintiff, Leslie Root, appearing pro se.

Ms. McClung and Ms. Rusnak are appearing on behalf of the defendant.

Let me start off by saying, I know Ms. Root, you had to go into your was it your 401K to get the filing fee, that lawyers are telling you they want X amount of dollars before taking the case but you're at a distinct disadvantage in representing yourself. It's not to say you're not intelligent but you're at a distinct disadvantage. And on these cases, if you would recover, a lawyer would be entitled to reasonable attorney's fees.

So I don't know who you've talked to. All I can tell you is if a lawyer evaluated your case and thought there was a chance, a good chance of recovery and did recover, they would get attorneys fees.

Who have you talked to, out of curiosity?

MS. ROOT: So I actually did have representation, attorney SPHRAPBLG they are from Ithaca, New York.

THE COURT: Don't know him.

MS. ROOT: And so he had told me that the EEOC rfould find that it would be the end the of the case. And rfhen that didn't happen — he may have previously — he did say that eventually down the road, he was going to be on the same committee as the president of the college and if the case had to go further, he would see it as a conflict of interest. And when that happened, then I was stuck with all the administrative fees.

THE COURT: Did he require a retainer from you, if I can ask?

MS. ROOT: Just the administrative fees. I guess there was a small retainer and, I'm sorry, I don't — I can't remember exactly. But then I had to also pay the court for the — to file here. So. . .

THE COURT: Right. And one of the things you have to consider, if you were to lose — and we'll talk about your case — but if you were to lose — I don't know if the defense would — but they could recover costs from you. So that could be another consideration as to why maybe, if you want, I would give you an opportunity to talk to an attorney.

Because here's the situation. The defense has moved to dismiss on a number of grounds. They've made what's called a 12(b)(6) motion. Essentially they're saying, just based on the complaint, the case shouldn't go any farther.

In that regard, one of the issues they raised is service. They point out in their papers that you were given a pretty explicit explanation of the responsibilities that pro se defendants have about service. And setting aside, for a moment, the fact that maybe the clerk's office here screwed up, you know, they should have given you the summons quicker than they did, you still didn't — first of all, we don't have any affidavit of service that you served anybody. And you didn't serve the complaint with the summons. It says pretty specifically that you're supposed to serve the — do you understand what I'm saying?

So, even if you were late with — let's say it was the clerk's office that was the cause of you being late for the issuance of the summons, whose fault is it that —

MS. ROOT: I went —

THE COURT: — the complaint wasn't served with the summons when you were told it was supposed to be.

MS. ROOT: I went to the Sheriff department which is on the list of servers. I went directly there with all the paperwork, exact instructions and I paid them and would never have thought for a second they didn't know how to properly serve.

THE COURT: Did they ever give you an affidavit of service? Have they actually made service?

MS. ROOT: Yes, they mailed me one weeks later.

THE COURT: And did you send it to the — did you include it in your papers? Did you file it?

MS. ROOT: I think that I called the clerk's office here.

THE COURT: But you don't dispute that the complaint wasn't served?

MS. ROOT: Yes. To Corning Community College?

THE COURT: You were supposed to serve the summons and complaint.

And am I correct, Counsel, the complaint was not served?

MS. McCLUNG: That's correct, your Honor.

THE COURT: And that's their position. They're saying, here's what they're arguing — and this is why you're at a disadvantage without a lawyer — here's what they're saying.

They're saying you had 90 days from the EEOC, the Right to Sue Letter, or the EEOC determination to commence a case in federal court, that you did it on the last day you could. And then they're saying once you filed the complaint, you had 90 days to make service. They're pointing out that that if you needed more time, you could have made an application but you didn't. And they're saying since you didn't make proper service, then that 90-day time limit for commencing the lawsuit started running again and you're out of time.

Now, again, Rule 4(m) is the rule invoked. And I can extend that. But, I mean, you didn't even, you know, you didn't even serve the complaint with the summons, as you were told to.

Now I understand, and I'll consider the fact, that you went but I don't — I mean, it may take a hearing. I don't know who you went to. You said you went to a retired deputy sheriff?

MS. ROOT: No.

THE COURT: A deputy sheriff?

MS. ROOT: I went to the sheriff's department. The whole department. They said they do it all the time. Steuben County Sheriff's Department and it was on the list that I was given by the court for servers. So that's why I —

THE COURT: Let's just assume — they raise a number of arguments. Let's assume we got by that hurdle and I said, okay, I'm going to extend everything. I'm going to give you X amount of time to make proper service. You got to pay for it but you got to make proper serve and now you serve.

Now they're coming back and pointing out that, listen, several of the things you complain about occurred beyond 300 days before you went to the EEOC. They're discrete acts. It's not — I can tell you this, it's not a continuing violation. And that's another issue why you may want counsel because that's kind of a legal issue, the continuing violation. That doesn't apply. So, under the law any acts that occur 300 days before — let me try to explain.

Let's assume each of the things you complained about in your EEOC complaint was a discrete act; they were not part of the continuing violation and I'm comfortable they were not part of a continuing violation. Then, anything that occurred prior to the 300 days is out. You have 300 days to go to EEOC and complain about what you believe is discriminatory conduct. That's one problem.

Then we get into — I'm giving you the benefit of the doubt on the clerk's office, say, yeah, it happens, maybe they didn't. Although, I guess we could have a hearing but let's assume that the clerk's didn't issue the summons. I explained the problem there. You didn't serve the complaint even though and you've talked about you went to the sheriff's department.

Then you complain that the EEOC hearing officer kind of prevented you from detailing all the acts involving what you maintain, you know, was sexual harassment. You complained was it a janitor came on to you or sexually harassed you. You talked a little bit about the student somewhere. I remember you said a professor's having an affair with a student. The student came to you and then his wife came to you.

MS. ROOT: It was a lot of students she was having affairs with.

THE COURT: But moving along. There's something called equitable modification. If you were actually prevented from filing specific allegations with the EEOC, then maybe that could be an argument but, again, that's a legal matter that might be better addressed by a judge.

Then you complain, essentially, about retaliation, disability discrimination and age discrimination. Now, I'm trying to figure out the disability discrimination because you maintain that some security guard, if I followed, was ticked off at you because you parked with a handicap sticker in a parking spot that somebody he knew wanted to park in, right, is that?

MS. ROOT: No, that's not exactly how.

THE COURT: Well, explain.

MS. ROOT: That person was already parked in the handicapped spot.

THE COURT: And you complained about it, I'm sorry.

MS. ROOT: It was the only one and I had to carry my stuff into the building and it was somebody who works there's nephew and they were pretty angry that I left a note note on the van saying please don't park in the handicap spot. I was actually, like, reported for it. But some of the, some of the other things that you say are close to —

THE COURT: But then, but then the security guard, I thought there was somewhere in there that when your handicap sticker expired —

MS. ROOT: Yep, the —

THE COURT: He wouldn't let you park in that spot.

MS. ROOT: Nope. The day it expired, he told me to go out and move my car.

THE COURT: How is that discriminating against you? If you could only park — hear me out — if you could only park in that spot with a handicap sticker.

MS. ROOT: It was that day. So, it would be until midnight, I would assume. I got in the car and drove right to my doctor's office who was astonished and came back and parked right back where I was.

THE COURT: I'm having trouble making the connection. How that is a cause of action under the American with Disabilities Act because the security guard, what?

MS. ROOT: Corning Community College made a long list of whatever they could do to me because I filed against this professor — she wasn't a professor; she was an instructor just like I was — having affairs with all the students. This security guy that worked in our building was part of the — he worked with the woman that had just taken over and started most of this. He came to me to move my vehicle and said, let's just say — I don't remember the date — it expires December 12th. It's December 12th. I have — I need to park there because I'm having trouble talking. It's December 12th. Why am I not parking in a handicap parking spot? I don't see how that's not disability discrimination.

THE COURT: On the part of the college?

MS. ROOT: Yeah, it's their college employee. That is the college telling me to move my car. He is the college. He is the college.

THE COURT: He's not a supervisor. He's not your supervisor.

MS. ROOT: No.

THE COURT: So that would mean if you followed your logic, any time an employee says something to you, even if your supervisor's not aware of it, that's discrimination.

MS. ROOT: He definitely has a charge over me. If I didn't go out and move my vehicle, he would have had it towed.

THE COURT: But you're missing my point. If I followed your logic, then any time anybody who's employed by the college, regardless of what their position is, does something, let's say that's not civil, then the college is on the hook.

MS. ROOT: I would assume if after it's reported and the college resolves it, then no.

THE COURT: Let's talk a little bit about your claim of age discrimination. And I'm trying to piece this together. You complained about the teacher having an affair with a student and then you were fired for that reason.

MS. ROOT: There's a lot of, it's a lot — more in-depth than just that.

THE COURT: But what did —

MS. ROOT: I worked every day with this woman.

THE COURT: But what did you plead? Let me —

MS. ROOT: Yes.

THE COURT: You tell me what you pled. Because here's, again, what counsel points out.

On this motion, let's aside for a moment — and I'm not going to say I'm going your way — but let's aside this whole service issue. Let's set aside that even though the summons was late, you didn't serve the complaint in a timely fashion. Let's set aside that in the EEOC complaint there was nothing about the janitor doing anything, right?

MS. ROOT: I told the EEOC that.

THE COURT: I understand that. But there's nothing in the EEOC. You're claiming that the, essentially, that the EEOC employee said don't worry about that. We can deal with it later.

MS. ROOT: That's exactly what she said. She said it will all come out.

THE COURT: Let's set that aside.

And let's look at your complaint and you tell me — so you're maintaining that you have a complaint for disability discrimination because on the day your sticker expired, you should have been allowed to stay in that spot till midnight and you were told to move then.

MS. ROOT: That's one —

THE COURT: What is the other?

MS. ROOT: — one incident. This is an ongoing. This was ongoing. My direct supervisor because of the problem with this female instructor started changing my schedule and putting me in different facilities further away from home at night when I can't work and our — our supervisor above that, the dean, had to get involved after he was forcing me to work at night up on the hill.

THE COURT: I'm talking about — is that your claim of disability discrimination? Is that your claim of age discrimination or is that your retaliation claim?

MS. ROOT: That's part of discrimination, disability and retaliation. I went to the HR department. I made an appointment with her to talk about my accommodations. I have the emails to prove that. She told the EEOC that she didn't even know I was disabled. I have an email to prove that she lied about that and that she was helping me with my accommodations but they're saying it never happened and, honestly, I don't see how that wasn't proof enough that they're lying.

Then the response I get from this lawyer takes a lot of points that weren't me. Those were my complaints to the college. And in the response it says I was doing them. There's a dozen witnesses and emails to say those were not me. I find that to be unethical on their part to blatantly put out lies. They know for a fact those weren't me. Those were the things I was complaining about. And they say that those are the reasons that I was terminated. Those were my complaints of what was happening in our area, mine and the woman I worked with.

THE COURT: Again, counsel's pointing out that you have no claim or cause of action for retaliation based on your complaints that, one, that a professor was having inappropriate relations with a student because that's not actionable under Title VII. It's actionable under Title VIIII; is that correct? It would be actionable under Title VIIII?

MS. ROOT: It is Title VIIII.

MS. McCLUNG: We didn't evaluate whether or not it would be actionable under another statute.

THE COURT: But it's a whole separate, I assume, exhaustion requirement under Title VIIII?

MS. McCLUNG: That's correct.

THE COURT: Can I —

MS. ROOT: Your Honor, I worked with this woman —

THE COURT: Can I urge you to do this? And I understand that you're sincere. They have a job to do. They have to point out to me what they believe is appropriate on the law and I have to follow the law. Might I suggest you try to contact an attorney again.

MS. ROOT: I could try. Can I at least tell you the things I researched?

THE COURT: You can of course tell me the things you researched. I don't know — now what county are you in?

MS. ROOT: Chemung.

THE COURT: Do they have a Legal Aid in Chemung because here in Monroe County we have a legal aid? I don't know if you would qualify but I think you really need to sit down with an attorney and go over some of the issues that are raised and get some advice. First of all, every time you come up here, I know it's a drive, and I think you need to discuss with an attorney some of these points I'm making.

MS. ROOT: I will. I'm not going to let this go.

THE COURT: I'm not saying let it go.

MS. ROOT: Win or lose my voice will be heard. That is a nasty college with sexual misconduct all over it.

THE COURT: What is it you want? There was something you wanted to say about what your research. Go ahead.

MS. ROOT: I researched about my whole serving and summons thing and I honestly tried to follow everything exactly the way I was told. The clerk told me that he found it in the reserve section probably because you were waiting for my payment.

THE COURT: I'm getting, I'm getting by that. On that one, I'm giving you the benefit of the doubt.

MS. ROOT: Okay.

THE COURT: Because that kind of thing happens.

But what I'm pointing out but then we go to — just step back a second and it may be all true. But your position is, listen, the clerk's office screwed up because they didn't get me the summons, okay. Then the sheriff's office screwed up because they didn't serve the complaint. Then the EEOC screwed up because they told me I didn't need to —

MS. ROOT: So are you saying that I'm making it up now?

THE COURT: I'm not saying —

MS. ROOT: Because I went to the sheriff's department.

THE COURT: Stop.

MS. ROOT: And they —

THE COURT: Can you listen to me for a second. I'm not saying you're making it up. And certainly on the delay in our clerk's office, I'm going to give you the benefit of the doubt. You don't even have to address that because if that was it, I'd say you know what, you have time to serve.

On the other issue, I mean, I'd want to hear, I mean, who is the sheriff who served it? You must have gotten back a notice that it was served. You must have their name.

MS. ROOT: I did. Do you want me to find it?

THE COURT: I'd just like to know —

MS. ROOT: They put it in their answer who the sheriff was.

THE COURT: Have you talked to him about why — you gave him the complaint?

MS. ROOT: In what I received from their office, there was — I didn't need to go back to them because they listed the whole conversation they had with the secretary and how they had to come back a second time and they gave it to the secretary who was the wrong person. At that point it had already been — it was done. And I didn't think I had done it wrong. If I had tried to approach the officer —

THE COURT: Can I ask you a question. Why did you wait so long to begin the action?

MS. ROOT: I didn't have the money. I had to wait This was a waiting period to take it out. Sorry.

THE COURT: That's okay. Take your time.

MS. ROOT: So something that I had found — I'm going to need a tissue.

THE COURT: We have tissues right here for you. Don't worry about. You go ahead and tell me.

MS. ROOT: I had read that when someone claims ongoing denial of reasonable accommodation and they have initiated contact with an EEOC counselor within the timeframe that this says at a minimum in regard to the reasonable accommodation issue, the Commission construed the other incidents has been timely raised, as well.

THE COURT: That's what I was trying to explain to you. That's called the Continuing Violation Doctrine. And under certain circumstances, you can argue that the violation continues. I don't know that you've pled it that way. But what else do you want to tell me?

MS. ROOT: I talked about and I don't know if it matters at this point but I talked about the answer and how — let's say eight out of ten of the points weren't even me. They were saying I did these things that they weren't even me. They were another employ that had done them. Not only did the college know that for a fact because lots of employees had complained about it. But I don't see how the attorneys handling the case didn't know it as well because it was in all of the paperwork that the EEOC had. And I find that inflammatory. I find it unethical. I just don't understand.

THE COURT: Are you saying that the reasons they gave for letting you go were wrong? But that's really not in the your complaint, is it?

MS. ROOT: No, that's not.

THE COURT: See —

MS. ROOT: That wasn't in the complaint.

THE COURT: What you have to understand: Right now we're at the complaint stage. They're just — so I don't know.

Now, my secretary — write this down. My secretary just sent me a note. There's called Legal Assistance of Western New York in Elmira, okay. And I'm going to give you the phone number. 607-734-1647. That's got to be relatively close to you, correct?

MS. ROOT: I've never heard of them but I would imagine.

THE COURT: So I was trying to explain to you that I'm just looking at the complaint right now and seeing if the complaint plausibly pleads causes of action as alleged by you. That's one issue.

The other issue is their motion to dismiss for lack of service, proper service.

Here's what I would suggest. You know, you only talked to one attorney?

MS. ROOT: I made some other phone calls.

THE COURT: I mean, who did you call?

MS. ROOT: I tried to call — I actually — I called like a legal or 511.

THE COURT: Why don't you do this for me, just because, again, there's some, you know, principles that I'm talking about, this idea of equitable modification with respect to EEOC hearings, the idea that under Rule 4(m), the Court can extend things. Why don't you make — where do you live again?

MS. ROOT: Elmira.

THE COURT: What county is that?

MS. ROOT: Chemung.

THE COURT: There should be Chemung County Bar Association.

MS. ROOT: I think I tried the Bar Association here so they wouldn't have to drive.

THE COURT: They have what's called a lawyer referral service.

MS. ROOT: That's what it was.

THE COURT: And did they give you names of attorneys?

MS. ROOT: Yes. I called several of them.

THE COURT: Like who did you call?

MS. ROOT: I don't . . .

THE COURT: Did you go actually sit down?

MS. ROOT: Nope, just phone calls.

THE COURT: How come just phone calls?

MS. ROOT: They all wanted money.

THE COURT: I take it they wanted money to sit down and talk to you about whether they would take your case?

MS. ROOT: Some did. One said that he would take the entire case for $1,500. Maybe I should call him back.

THE COURT: I'm really telling you that I think you need — I know you're adamant about pursuing the claim.

MS. ROOT: I am.

THE COURT: I know that and you told me that and I'm not suggesting you're not. But I really think you need legal counsel. Because what I was trying to tell you is: When I make a decision on the application, I have to decide it based on the law. Like I said, you seem like a nice lady But I have to make a decision based on legally who's right and who's not. And getting by the service issue — I don't know if you've read counsel's brief — but they're essentially saying you haven't plausibly pled causes of action under the ADA, Title VII and, you know, the American with Disabilities Act.

Do you want an opportunity to talk to a lawyer?

MS. ROOT: Yes.

THE COURT: All right. Why don't we do this. I have the papers. I understand from your papers what your position is. I clearly understand from your papers that you are maintaining, one, that the clerk's office delayed in your summons, that you did your best. You now explained to me to me the action took long to file because you didn't have the money because you were denied IFP status. You've told me that the clerk's office didn't issue the summons until — delayed in issuing the summons.

MS. ROOT: They were really nice.

THE COURT: They are nice up there but that doesn't mean — you can be nice and still mess up occasionally. You've told me that you did your best. The clerk's office gave you a list of who could serve the summons and complaint. And that you, at least as far as you know, you went to the sheriff's department and asked them what they needed. They told you what they needed. You were relying on them to serve it and they didn't serve the complaint. You said in terms of of the EEOC hearing, you tried to bring up the fact of the janitor and other things and the woman, I guess, intake officer who spoke to you said don't worry about that. You can raise it later.

MS. ROOT: On her behalf, the case was transferred to somebody else.

THE COURT: I don't understand what you mean on her behalf.

MS. ROOT: The woman that I met with for hours and discussed this whole situation with was handling my case and then because the EEOC is so short staffed, my case was turned over to somebody else that I never spoke to, so.

THE COURT: You never spoke to the other person?

MS. ROOT: Not once. Not one time. Never returned a call or an email.

THE COURT: But I take it you had a hearing at the EEOC?

MS. ROOT: No, I had nothing.

THE COURT: They just issued you a Right to Sue letter.

MS. ROOT: Yes, a long time later.

THE COURT: Moving on. If we get over these kind of —

MS. ROOT: Hurdles.

THE COURT: I'll call them procedural hurdles, ther we get to the arguments that counsel has made in their papers that you have no cause of action because you complained about a teacher under Title VII because you complained about a teacher conduct with a student.

MS. ROOT: Lots of students.

THE COURT: Multiple students, that any discrete acts that occurred before the 300 days that you went to EEOC shouldn't be considered. And that you really haven't pled plausible claims under any of the theories. So those are the things that I'll eventually have to look at. Again, my suggestion would be that you consult an attorney. And I can't — Elmira's not that small a place. You should be able to get somebody who would sit down and talk to you. And, again, I'm pointing out that if a lawyer prevails, they can get reasonable attorneys fees.

I think it's pretty obvious that you're up against very good lawyers who are doing their job in representing their clients to the best of their ability within the bounds of advocacy. If they feel — I was going to say you can't take it personally but it's you, you're going to take it personally — but you certainly can't take it personally against the lawyers. They're just pointing out what they believe are deficiencies in your case. That's what they're supposed to do.

MS. ROOT: Those I agree with. But I do not agree with the points they made about termination. Those were complete fabricated lies.

THE COURT: About what, see, about what points? You're saying about why you were terminated.

MS. ROOT: Yes.

THE COURT: But that's not in your complaint.

MS. ROOT: No.

THE COURT: You're just saying that you were retaliated against. I don't — if we got farther, then they would point out that there were legitimate reasons why you were terminated.

MS. ROOT: And if they use those, there will be a problem because they weren't me and somebody gave them that information.

THE COURT: What are you looking for in this lawsuit?

MS. ROOT: That's how crooked that college is. They ruined a portion of my life.

THE COURT: What are you looking for from the lawsuit?

MS. ROOT: Compensation. Compensation at least for some of the things that I've gone through.

THE COURT: Okay. How long do you need to send a letter to me and a copy to counsel whether opposing counsel whether you can retain a lawyer?

MS. ROOT: Why don't you give me . . .

THE COURT: Tell me how much you need and I'll give it to you.

MS. ROOT: I'll start making phone calls when I get home.

THE COURT: I'm asking you how long you need. 30 days, is that enough time?

MS. ROOT: Yes.

THE COURT: I'll give you 30 days. Now here's what I expect. In 30 days you need to send a letter to me and copy to counsel indicating whether you have an attorney. If you have an attorney, then I'll schedule a court appearance with the attorney or we'll try to set up some schedule. If you don't, if you don't have an attorney, just let me know and then I'll proceed to decide the case. And I do understand your arguments. Do you have any questions?

MS. ROOT: (Nodding no.)

THE COURT: If you do, fire away. I'm here. So go ahead.

MS. ROOT: How about, how about just a little brief personal how, how I got there and why this is so bad.

THE COURT: Sure, go ahead and tell me.

MS. ROOT: I was a single mother with four kids and never really felt worthy and I went back to school and the place I went was there, Corning College, and I excelled. I was in my 30s and I made a lot of friends with professors and staff. I gave the commencement speech. They hired me after I went on to Mansfield and got my Bachelors. And I felt like somebody. I'm smart. And I was able to give students back exactly what that college gave me. And I was naive to think that every institution doesn't have this but I just was under the impression that everybody that worked within a higher education system had ethics and morals and wouldn't do things, you know, to others with sexual misconducts and then, you know, we like this person better so now we're going to tear you down until you leave. And that's exactly what happened. That's why this is so important to me.

THE COURT: Fair enough. I understand.

So, please, do your best to try to get an attorney, And it has nothing to do with that you're not intelligent. Obviously you're intelligent. But I think you realize, too, you're at a disadvantage if you're going up against two very skilled attorneys and you'd be better served by having some legal representation who maybe can make arguments that you don't see and I don't see. Does that make sense to you?

MS. ROOT: Yes.

THE COURT: All right. So, within 30 days send me a letter as to whether you found an attorney. Again, you have the number of Elmira Legal Aid. I would check with the — I mean, the problem with, you hit on a point, the problem with getting a letter who you retain from Chemung County means they have to drive up to Monroe County. Again, I don't know how many names the Bar Association lawyer referral service gives you but there's plenty of lawyers in Monroe County who may be willing to sit down with you and evaluate the case and give you an honest opinion as to whether they think you're going anywhere.

MS. ROOT: Okay.

THE COURT: Okay. So we'll wait for 30 days. Thank you very much.

MS. McCLUNG: Thank you, your Honor.

(WHEREUPON, proceedings were adjourned.)

EXHIBIT B

Present representing Corning Community College are Ms. McClung with whom you're familiar and Mr. Talerico.

You were notified to be here on this date.

MS. ROOT: Okay, I'm going to cut you off now. I had surgery yesterday and I'm on medication. So, I'm not going to take this phone call. And I am hoping to write to have you recuse yourself. Thank you for the call.

THE COURT: Are you still there, Ms. Root?

(No response.)