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August 6, 1986


The opinion of the court was delivered by: SWEET


The Equal Employment Opportunity Commission ("EEOC") filed this action against Cushman & Wakefield, Inc. ("Cushman & Wakefield") a real estate brokerage firm, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The action was initiated on behalf of Barbara Hurley ("Hurley"), a former employee of Cushman & Wakefield, and similarly situated women in defendant's workforce, including Virginia Clay ("Clay") and Minnie Jamison ("Jamison"), who allege that Cushman & Wakefield has engaged in and continues to engage in employment practices in violation of Title VII, Section 703(a)(1) and (2) as amended by Section 701(k), which prohibits discrimination because of pregnancy and pregnancy related disabilities. 42 U.S.C. § 2000e-2(a)(1) and (2) as amended by § 2000e(k). The illegal employment practices allegedly engaged in by Cushman & Wakefield include the failure to reinstate female employees upon return from maternity leave (Complaint [P]7).

Cushman & Wakefield has moved for summary judgment pursuant to the Federal Rules of Civil Procedure 56 and seeks to have the complaint dismissed. Cushman & Wakefield asserts that there is a fatal variance between the scope of Hurley's charge, the subsequent EEOC investigation, and the complaint, as compared to the actual grievance which Hurley has articulated against Cushman & Wakefield and therefore the EEOC lacks jurisdiction to proceed with this case. Further, Cushman & Wakefield argues that it is entitled to summary dismissal of the claims asserted by Jamison and Clay, also former employees of Cushman & Wakefield who asserted that they had been discriminated against on the basis of pregnancy. A motion for sanctions as to Jamison is pending before this court. Cushman & Wakefield finally asserts that Clay's claim is untimely as she left the employment of Cushman & Wakefield more than 300 days before Hurley's charge was filed with the EEOC. For the reasons set forth below, the motion for summary judgment is granted in part and denied in part.


 Hurley was initially hired by Cushman & Wakefield as an Administrative Assistant to the National Industrial Coordinator on August 7, 1978. Thereafter, she was promoted to the position of National Industrial Coordinator and held this position until October 15, 1981 at which time she left her employment with Cushman & Wakefield to take maternity leave. By December 15, 1981, Hurley was ready to return to work and so informed Daniel Beards, Director of Personnel. Hurley was told that efforts would be made to find her a comparable position with the company. Hurley called Beards in January, 1982 and repeatedly thereafter but was not offered a position. On March 15, 1982, Beards informed Hurley that no comparable job could be found. Hurley offered to accept a lesser position with a lower salary until a comparable position became available, but her offer was refused, and she was terminated as of that date.

 On November 17, 1982, Hurley filed a charge of sex discrimination with the EEOC alleging that she had been discriminated against on the basis of pregnancy. The EEOC then conducted an investigation of Hurley's charge by reviewing records provided by Cushman & Wakefield. According to Cushman & Wakefield's own policy, when returning from a leave of absence to full-time employment, and employee has a re-employment right to preferential treatment for a position similar to the one held previously. There is an obligation to make a substantial effort, including the possibility of retraining, to retrain such an employee.

 The EEOC found nothing in the record to demonstrate that Cushman & Wakefield made a vigorous effort to retain or give preferential treatment to Hurley. The EEOC concluded that Hurley could have been assigned to the position of an Administrative Assistant which would have required no retraining since she already had substantial experience in this position. The EEOC also concluded that there was reasonable cause to believe that Hurley was terminated because of her pregnancy in violation of Title VII of the Civil Rights Act of 1964, as amended. Moreover, the EEOC stated that there was reasonable cause to believe that Cushman & Wakefield "has a practice which operates to deny reinstatement to employees who use maternity leave." Relief was sought for Hurley along with Clay and Jamison.

 Cushman & Wakefield denied liability, and the EEOC denied Cushman & Wakefield's petition for reconsideration. This action was then commenced on May 20, 1985.

 Hurley was deposed by Cushman & Wakefield on September 30, 1985. She reasserted her termination complaint and testified that ". . . the company's general policy of the executive was anti-female in just about every area, whether it related to positions, titles, salaries or having a baby." (Hurley Dep. at 225). She also testified that during her employment at Cushman & Wakefield, she had been sexually harassed by John Dally, a top income-producing broker in the company. When asked if Dally could have said or done anything to affect her condition of employment, Hurley responded she had no way of knowing that. (Hurley Dep. at 233). Hurley never filed any charge with respect to this alleged sexual harassment, nor did she mention it to the EEOC prior to the taking of the deposition. Cushman & Wakefield asserts that Hurley has abandoned her pregnancy discrimination claim and that the EEOC no longer has jurisdiction to bring this suit.


 A. Barbara Hurley

 The Second Circuit imposes a heavy burden on parties seeking summary judgment, in recognition of the fact that summary judgment deprives the non-moving party of the opportunity for a full factual development of the record through trial. See Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975). The moving party has "the burden of showing the absence of a genuine issue as to any material fact," Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and all ambiguities are resolved in favor of the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam). Thus, summary judgment is inappropriate when genuine issues of material fact exist. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962).

 "The scope of the judicial complaint in a Title VII action has generally been construed to be limited not to the words of the charge but to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978). The rationale for this proposition is inherent in the legislative intent behind Title VII and the creation of the EEOC. When an employee files a charge of discrimination with the EEOC, the Commission then conducts an investigation and is under an obligatio to seek voluntary compliance with the law. A civil lawsuit is filed only when compliance is not forthcoming from the employer. The civil action is thus more closely related to the EEOC investigation than to the original charge filed by the complainant. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466-67 (5th Cir. 1970). Moreover, since one of the primary goals of Title VII is to obtain conciliation between the EEOC and the employer outside of the courtroom, the civil suit must be limited to the scope of issues that would have been addressed during the investigation and conciliation process. Id. (citing King v. Georgia Power Co., 295 F. Supp. 943, 947 (N.D.Ga. 1968)). Any other result would thwart the conciliation goals that underlie Title VII. Thus, "Title VII claims which have not been presented to, or investigated by, an administrative agency, or which are not within the scope of the EEOC investigation which reasonably could be expected to grow out of the administrative charge are properly subject to dismissal for lack of subject matter jurisdiction." Grant v. Morgan Guaranty Trust Co. of New York, 548 F. Supp. 1189, 1191 (S.D.N.Y. 1982). See Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979), rev'd on other grounds, 447 U.S. 807, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980).

 Cushman & Wakefield asserts that a fatal variance exists between the scope of Hurley's charge, the EEOC investigation, and the complaint which alleges pregnancy discrimination, on the one hand, and the actual grievance Hurley has against Cushman & Wakefield which Cushman & Wakefield believes is sexual ...

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