United States District Court, Southern District of New York
September 16, 1991
EVELYN R. DRUMMER, PLAINTIFF,
DCI CONTRACTING CORP., D/B/A DCI CONTRACTING CORPORATION, MARVIN ROSENTHAL, AND KATHY MORRISSEY, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Evelyn Drummer ("Drummer") brought this action
against DCI Contracting Corp. ("DCI"), Marvin Rosenthal
("Rosenthal"), and Kathy Morrissey ("Morrissey," and
collectively "Defendants") alleging that they violated Title
VII of the Civil Rights Act of 1964, specifically
42 U.S.C. § 2000e-2(a)(1)(2) and 2000e(k), and the New York Human Rights
Law, N.Y.Exec. Law § 296(1)(a), by discriminating against her
on the basis of her pregnancy and orthodox Jewish belief and
practices. Defendants now move to dismiss the first and third
causes of action of Drummer's complaint pursuant to Rules
12(b)(1) and (6), Fed.R.Civ.P. For the following reasons
Defendants motions are granted in part and denied in part.
Drummer is an orthodox Jewish woman residing in Brooklyn, New
DCI is a contracting corporation organized under the laws of
the State of New York with its principal place of business in
New York City. Rosenthal is president of DCI. At all times
relevant to the events in question, Morrissey was purchasing
manager for DCI. She is no longer employed by DCI.
Drummer began her employment with DCI as assistant to the
purchasing manager on August 10, 1987, was promoted to
supervisor on July 1, 1988, and then to purchasing manager in
November of 1988. At the beginning of her employment, Drummer
advised Defendants that she was an orthodox Jew who observed
religious holidays and the Sabbath. When necessary, she was
required to take days off from work for religious holidays and
to leave before sundown on Friday afternoons in observance of
the Sabbath. DCI adjusted her schedule to accommodate these
Drummer's complaint in this action alleges, however, that,
beginning in November of 1987, she was harassed, and her upward
progress at DCI impeded, on the basis of her religion. She
claims that Morrissey repeatedly complained about Drummer's
time off from work and early departures on Fridays for
religious reasons, stating that "you Jews take a lot of time
off." She was allegedly informed that Morrissey and Rosenthal
were concerned that her orthodox beliefs and/or possible future
pregnancy would disrupt the operation of the purchasing
department and that this would not be tolerated. Drummer claims
that during the fall and winter of 1988, Morrissey told her
that she was not entitled to take Jewish holidays off because
"we cannot make an exception for you," that she could not be
paid for those days she did take off, and that she would never
be promoted at DCI because of her religious observances.
On or about December 20, 1988, Drummer informed Defendants
that she was pregnant and that she intended to continue working
throughout the pregnancy and to return to work after the baby's
Drummer's employment at DCI was terminated on February 17,
1989, although she was continued on the payroll until March 6,
1989 because of accrued vacation time.
On May 16, 1989, she filed with the New York State Division
of Human Rights ("SDHR") a complaint (the "Human Rights
Complaint") alleging unlawful employment discrimination by DCI
under the New York Human Rights Law ("HRL"), N.Y.Exec. Law Art.
15 and under Title VII of the Civil Rights Act of 1964 ("Title
VII"). She alleged in the Human Rights Complaint that she had
been "harass[ed]," passed over for promotion, and ultimately
terminated after informing DCI on December 20, 1988 that she
was two months pregnant. The "harassment" took the form of
being told that she would soon have to work shorter days, and
that she would not be a good mother if she left to return to
work. Drummer checked the box entitled "Sex" in indicating the
form of violation of which she was complaining. The Human
Rights Complaint contained no references to religious
discrimination or harassment of any kind. Neither Rosenthal nor
Morrissey were named individually as parties in the Human
Rights Complaint although they were described in the body of
the complaint as the individuals responsible for the allegedly
DCI answered the Human Rights Complaint on May 25, 1989,
denying Drummer's allegations of sexual discrimination and
asserting that she was terminated for cause of which she was
repeatedly advised prior to announcing her pregnancy,
specifically her inability to supervise her department. A
supplemental letter to the SDHR dated May 25, 1989, indicated
that problems leading to Drummer's termination included
problems with inventory control, time away from work,
over-ordering of materials, and lack of control of stock
transfers for billing purposes.
On June 26, 1989, Drummer's counsel appeared in the SDHR
proceeding and offered to discuss a possible resolution of
Drummer's claim with DCI. No such efforts were made toward
Rosenthal or Morrissey.
In September of 1989, DCI received from the Equal Opportunity
Employment Commission ("EEOC") a notice of charge of
discrimination (the "EEOC Charge") asserting that a charge of
employment discrimination under Title VII had been received by
the SDHR and the EEOC for dual filing purposes. The EEOC Charge
cross-referenced and incorporated the Human Rights Complaint.
Under the category "Basis of Discrimination" contained in the
EEOC notice of charge form, Drummer checked the box for "Sex"
and indicated that "termination" constituted the "Circumstances
of Alleged Violation." The EEOC Charge named only DCI as
On April 12, 1990 Drummer amended the Human Rights Complaint
to add the allegation that her termination was also motivated
by religious discrimination in violation of the HRL and Title
VII. The amendment named neither Rosenthal nor Morrissey as
respondents. DCI denied the allegation of religious
discrimination in its amended answer of May 22, 1990. Neither
the SDHR nor the EEOC took any action to investigate or
conciliate the new allegations.
On September 10, 1990, DCI received a copy of a September 5,
1990 EEOC notice of right to sue addressed to Drummer,
referencing the EEOC Charge.
Drummer served her complaint on DCI in this action on
November 19, 1990. The complaint alleges three causes of
action: (1) that from November 1987 through March 1989
Defendants discriminated against her on the basis of her
orthodox Jewish practices and beliefs in violation of Title
VII, 42 U.S.C. § 2000e-2(a)(1), (2); (2) that Defendants
discriminated against her from December 20, 1988 on the basis
of her pregnancy in violation of Title VII, 42 U.S.C. § 2000e(a)
and (k); and (3) that by the acts of sex and religious
discrimination and harassment alleged in the first two causes
of action, Defendants violated New York Executive Law §
Defendants now move to dismiss the Title VII religious
discrimination and harassment claims on the grounds that they
are time-barred. They also move to dismiss the Title VII claims
against Rosenthal and Morrissey individually on the grounds
that they were not named in the EEOC charge. They move to
dismiss the HRL claims for lack of pendent jurisdiction.
1. Standard for a Motion to Dismiss
A court should dismiss a complaint for failure to state a
claim under Rule 12(b)(6), Fed.R.Civ.P., only if it appears
beyond doubt that the plaintiff can prove no set of facts
supporting its claim that would entitle it to relief. See H.J.
Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct.
2893, 2906, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984);
Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert.
denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985). A
court must construe the complaint's allegations in the light
most favorable to the plaintiff and accept those allegations as
true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
1686, 40 L.Ed.2d 90 (1974); Dacey v. New York County Lawyers'
Assoc., 423 F.2d 188, 191 (2d Cir. 1969), cert. denied,
398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970).
A. Charge of Religious Discrimination is Time-Barred
As a prerequisite to bringing a Title VII action in federal
court, a complainant must file a charge with the EEOC within
300 days of the alleged unlawful act.*fn2 42 U.S.C. § 2000e-5(e);
Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
392, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Travers v.
Corning Glass Works, 76 F.R.D. 431, 432 (S.D.N.Y. 1977). The
purpose of the filing procedures is to convey prompt notice to
the employer, thereby encouraging conciliation wherever
possible. Adames v. Mitsubishi Bank Ltd., 751 F. Supp. 1565,
1570 (E.D.N.Y. 1990).
The parties do not dispute that Drummer timely filed her EEOC
Charge alleging pregnancy discrimination by DCI during the last
two months of her employment. They also do not dispute that she
amended the EEOC Charge, adding allegations of religious
discrimination, outside the 300-day period. Drummer argues,
however, that her amended complaint relates back to the date of
the original, timely charge.
29 C.F.R. § 1601.12(b) provides that:
A charge may be amended to cure technical defects
or omissions, including failure to verify the
charge, or to clarify and amplify allegations made
therein. Such amendments and amendments alleging
additional acts which constitute unlawful
employment practices related to or growing out of
the original charge will relate back to the date
the charge was first received. A charge that has
been so amended shall not be required to be
The first question to be resolved, then, is whether Drummer's
untimely amendment charging religious discrimination in her
termination "relates back" to the date of the original filing.
Although courts generally are not wont to hold Title VII
plaintiffs to rigorous requirements of specificity in naming
the form of discrimination allegedly suffered, see, e.g.,
Silver v. Mohasco Corp., 602 F.2d 1083, 1087 (2d Cir. 1979),
rev'd on other grounds, 447 U.S. 807, 100 S.Ct. 2486, 65
L.Ed.2d 532 (1980); Adames v. Mitsubishi Bank Ltd., 751 F. Supp. 1565,
1572 (E.D.N.Y. 1990); Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 464 (5th Cir. 1970); Bernstein v. National
Liberty Int'l Corp., 407 F. Supp. 709, 712 (E.D.Pa. 1976),
relation back is not appropriate where the facts alleged in the
timely EEOC charge refer exclusively to one type of
wholly distinct from that alleged in the untimely amendment.
See, e.g., Rizzo v. WGN Continental Broadcasting Co.,
601 F. Supp. 132, 135 (N.D.Ill. 1985).*fn3
Under authorities cited by Defendants, Drummer's religious
discrimination is not "like or related to" her original claim
of pregnancy discrimination. See Pejic v. Hughes Helicopters,
Inc., 840 F.2d 667, 675 (9th Cir. 1988); Rizzo, 601 F. Supp. at
In Pejic v. Hughes Helicopters, Inc., for instance, the court
determined that an untimely amendment charging age
discrimination did not relate back to the original, timely
charge of national origin discrimination because the original
charge contained "no hint of age discrimination." Pejic, 840
F.2d at 675. Likewise, in Rizzo v. WGN Continental
Broadcasting, the court found that an untimely amendment adding
a sex discrimination claim was not "like or related to" the
original age discrimination claim because all of the
allegations of the original complaint referred to defendant's
mandatory early retirement program and thus "fail[ed] to allude
to any act of WGN from which sexually discriminatory conduct
may be inferred." Rizzo, 601 F. Supp. at 135.
As in Pejic, Drummer's original charge contained absolutely
no intimation of religious discrimination: the charges make no
reference to religion, time off for religious observances, or
derogatory remarks related to religion. More importantly,
however, each fact that she did allege was directly related to
her pregnancy, making this case very much like Rizzo. She
stated, for example, that "since informing respondent about
[her] pregnancy" Morrissey complained that she would "soon
have to work shorter days and probably not want to travel to
work," and told her that she "would not be a good mother or
love [her] child if [she] left it to return to work," and that
she "was being too sensitive and `it was [her] hormones'
anytime [she] questioned anything work related." Human Rights
Complaint at 1, ¶ 5 (emphasis added).
Despite the apparent exclusivity of this language, Drummer
claims that the religious discrimination charge is "like or
related" to the charge of pregnancy discrimination because both
types of discrimination took the form of objections by her
supervisor to time off from work. In this regard, she invokes
Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
In Sanchez, the court allowed relation back of an untimely
amendment charging national origin discrimination to the
original charge of sex discrimination. Id. at 464. It found
that defendant's act of hitting plaintiff on the buttocks and
causing her to injure herself, alleged in the original
complaint, was motivated by both sex and national origin
discrimination and that the untimely amendment therefore merely
amplified the original complaint. Id.
Following Sanchez, it has been held that "[t]he failure to
attach a legal conclusion, such as sexual discrimination, to
the factual occurrences complained of has been interpreted to
be a `technical defect' within the meaning of § [1601.12(b)],"
Bernstein v. National Liberty Int'l Corp., 407 F. Supp. 709, 712
(E.D.Pa. 1976) (citing Sanchez, 431 F.2d at 464).
The problem here, however, lies not in the legal conclusion
Drummer attached to her allegations of fact but in the facts
themselves. Each of Defendants' complaints cited in the
original EEOC Charge specifically relates to Drummer's
pregnancy. Drummer makes no reference to generalized complaints
about time off of work or to complaints that might indicate
that there was something more behind them than her pregnancy,
as, for example, a complaint that this would be yet
another reason for taking more time off. The fact that
Defendants also may have complained about time off for
religious observances at
some time is not a basis for finding relatedness to the
strictly pregnancy-related facts alleged in the EEOC Charge.
These acts are thus distinguishable from the generic factual
basis the Sanchez court found amenable to multiple
The court thus finds that the untimely amendment to the EEOC
Charge charging religious discrimination in connection with
Drummer's termination does not relate back to the original
B. Religious Harassment Claim Is Time-Barred
The second question is whether this court may consider
Drummer's allegations of religious harassment over the
fourteen-month period preceding her pregnancy, which she
asserts for the first time in the judicial complaint.
Although a Title VII plaintiff must first file any charges
with the EEOC before she may bring a judicial action, courts
have held that the proper scope of any private lawsuit
resulting from the EEOC charge encompasses not only the claims
presented in the charge but also those that reasonably could be
expected to grow out of the EEOC investigation of the charge.
Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n.
10 (2d Cir. 1978); Hicks v. ABT Assocs., Inc., 572 F.2d 960,
966 (3d Cir. 1978); Oubichon v. North Am. Rockwell Corp.,
482 F.2d 569, 571 (9th Cir. 1973); Adames, 751 F. Supp. 1565, 1574
(E.D.N.Y. 1990); Meyer v. MacMillan Publishing Co., 85 F.R.D.
149, 151 (S.D.N.Y. 1980). The question before this court is
whether the EEOC reasonably could have been expected to
investigate Drummer's religious harassment claim as an
outgrowth of the allegations in the original EEOC Charge. Cf.
Hicks, 572 F.2d at 966 (correct inquiry is scope of EEOC
investigation that could be expected to grow out of charge not
The answer in this case is no. For the EEOC reasonably to be
expected to investigate a charge, it must somehow have been
alerted to the claim. Meyer, 85 F.R.D. at 151. In Silver v.
Mohasco, 602 F.2d 1083 (2d Cir. 1979), for instance, the court
held that the EEOC had been alerted to a claim of blacklisting
not included in the EEOC charge alleging religious
discrimination. The new claim, it found, could not be said to
"have caught the EEOC by surprise" because the plaintiff's
charge had alleged the existence of a "comprehensive plan"
directed at Jewish executives. Id.
Similarly, in Hicks v. ABT Assocs., 572 F.2d 960 (3d Cir.
1978), the Third Circuit found the appropriate nexus between
the original charge of race discrimination and sex
discrimination because the plaintiff's new allegation of
disparate treatment on the basis of sex related to the same
supervisors from whom he claimed he received disparate
treatment on the basis of race. Thus, the instances of sex
discrimination complained of arose from the very same acts
which supported his claim for race discrimination.
This case, however, is much closer to one like McGuire v.
United States Postal Service, 749 F. Supp. 1275 (S.D.N.Y. 1990).
There, the court refused to consider plaintiff's allegation
that his dismissal was motivated by retaliation because nothing
in the EEOC proceedings suggested that he had ever made this
contention. Id. at 1288. Moreover, the events he had referred
to in his EEOC charge occurred many months before the
dismissal. Id.; see also Meyer, 85 F.R.D. at 151 (because EEOC
alerted to claim of retaliation, plaintiff could not make this
claim in judicial action).
The acts alleged in Drummer's EEOC Charge did not alert the
EEOC to religious discrimination. As discussed above, the acts
alleged are all specifically pregnancy related. More
importantly, as in McGuire, the allegations in the EEOC Charge
are temporally limited; they refer the EEOC only to the period
between December 20, 1988 and February 17, 1989. The acts
alleged in the judicial complaint, on the other hand, occurred
fourteen months before those alleged in the Human Rights
Complaint. There is no apparent reason to believe that an EEOC
investigation of pregnancy-related discrimination from and
after the announcement of Drummer's pregnancy would evolve into
an investigation of religious harassment over the course of
more than a year preceding that time.
For the reasons discussed above, Drummer may not maintain
this suit for religious discrimination and harassment under
C. Drummer's Title VII Claim Against Morrissey is Dismissed
Drummer has brought this action against not only DCI, her
former employer, but also against Rosenthal and Morrissey
individually. They are sued for personal liability for each of
Drummer's two Title VII causes of action although neither was
named as a respondent in either the Human Rights Complaint or
the EEOC Charge.
Section 706(e) of Title VII provides that "a civil action may
be brought against the respondent named in the [EEOC] charge."
42 U.S.C. § 2000e-5(f)(1). As a general rule, a party not named
in the EEOC charge cannot be named in the subsequent civil
suit. Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 497
(S.D.N.Y. 1989); Seedman v. Alexanders, Inc., 683 F. Supp. 924,
928 (S.D.N.Y. 1987); Allen v. Colgate-Palmolive Co.,
539 F. Supp. 57, 69 (S.D.N.Y. 1981); Travers v. Corning Glass Works,
76 F.R.D. 431, 433 (S.D.N.Y. 1977). This notice requirement
serves the two important purposes of notifying the charged
party of the asserted violation and permitting the effectuation
of Title VII's primary goal of securing voluntary compliance
with the law by bringing the charged party before the EEOC.
Travers, 76 F.R.D. at 432 (quoting Bowe v. Colgate-Palmolive,
416 F.2d 711, 719 (7th Cir. 1969)).
It is undisputed that neither Rosenthal nor Morrissey were
named in either the Human Rights Complaint or the EEOC Charge.
Thus, applying the general rule, Drummer may not maintain this
civil action against either of the individual defendants.
Drummer argues, however, that Rosenthal and Morrissey are
amenable to suit under the exception to the general rule. Under
this exception, individuals not named in the EEOC charge may be
sued in a subsequent civil action if they have been given
actual notice that their conduct is being investigated and
notice of intent to sue is given to the corporate employer.
Seedman, 683 F. Supp. at 928; Allen, 539 F. Supp. at 69. Drummer
posits that, because the EEOC Charge included specific
references to Rosenthal, Morrissey, and their conduct "[i]t
would be unlikely that neither Rosenthal, nor Morrissey was
unaware of the `NOTICE OF CHARGE OF DISCRIMINATION.'"
Plaintiff's Memo. in Opp. at 20. Drummer argues that dismissal
prior to discovery as to the degree of Rosenthal's and
Morrissey's "aware[ness]" of the pending investigation would be
The court agrees with Drummer with respect to Rosenthal but
not with respect to Morrissey. Drawing all reasonable
inferences in favor of Drummer, it is reasonable to infer that,
as president of DCI, Rosenthal would have been aware of the
investigation and of the fact that his specific conduct was at
issue. See Giuntoli, 726 F. Supp. at 499-500. In fact, Rosenthal
does not deny knowledge of the investigation, but merely states
that no EEOC conciliation efforts were made toward him.
Moreover, a Dunn & Bradstreet search offered by Drummer
indicates that as of May 30, 1990, 100% of the stock of DCI was
owned by its officers, thus raising a question as to whether
Rosenthal has an ownership
interest in DCI. Plaintiff's Aff. in Opp. at Exhibit L.
Ownership may imply actual notice. Cf. Patrowich v. Chemical
Bank, 63 N.Y.2d 541, 542-44, 483 N.Y.S.2d 659, 660-61,
473 N.E.2d 11, 12-13 (1984) (corporate officer not shown to have
ownership interest in defendant corporation not individually
subject to suit under HRL or ADEA).
With the factual issue of Rosenthal's awareness of his role
in the investigation unanswered, it would be inappropriate to
dismiss the Title VII claim against Rosenthal. Defendant's
motion to dismiss this claim is thus denied.
However, there is no particular reason to imply actual notice
to Morrissey, who was a mere employee of DCI. The mere fact
that Morrissey and her conduct were specifically mentioned in
the EEOC Charge is not enough to satisfy the requirement that
she have actual notice that her conduct was being investigated.
The Honorable Edward Weinfeld addressed a similar factual
situation in Travers v. Corning Glass Works, 76 F.R.D. 431
(S.D.N.Y. 1977). In that case, the SDHR complaint, EEOC charge,
and right to sue letter named only the corporate employer as
defendant. Plaintiff brought his Title VII action against
Corning Glass Works ("Corning") and his supervisor, Mustafa.
The complaints filed with the SDHR and EEOC described Mustafa
and discriminatory statements he had made. Indeed, the
allegations against Mustafa were the basis for the charge
against Corning, as the allegations against Rosenthal and
Morrissey appear to be the basis for Drummer's charge against
DCI. Nevertheless, EEOC conciliation efforts were directed
solely at Corning; it was uncontroverted that the conciliation
efforts did not extend to Mustafa.
Despite Mustafa's prominence in the description of the
alleged discrimination, the court found that he could not be
sued because he was never individually charged in the EEOC
charge. Recognizing that procedural technicalities should not
bar Title VII claims and that ambiguities are to be resolved in
favor of the claimants, the court nevertheless held that "the
failure to charge [an individual defendant] as a respondent if
it was intended to hold him personally liable is not a
procedural technicality but a matter of substance" because the
dual purposes of the general rule would otherwise go
unfulfilled. Travers, 76 F.R.D. at 433.
It is uncontroverted that Morrissey was not named in the EEOC
Charge and that no EEOC conciliation efforts were made towards
her. Thus, neither of the "important purposes of Title VII" was
addressed with respect to Morrissey: she was not notified of
the claims against her and was not brought before the EEOC to
attempt to secure voluntary compliance with the law.*fn5
2. Dismissal of SDHR Complaint for "Administrative
Convenience" Negates Defendants' Election of Remedies
Drummer's third cause of action asserts claims for violations
of the HRL in the form of sex and religious discrimination.
N YExec.Law § 297(6). She maintains that this court may hear
these state law claims under the doctrine of pendent
jurisdiction. Before reaching the question of whether this
court may exercise pendent jurisdiction, however, the court
must consider whether Drummer made an election of remedies by
bringing her complaint before the SDHR which bars her from
seeking judicial relief for these claims.
Section 297(9) of the New York Executive Law provides that an
aggrieved party may assert a claim for discrimination under the
in any court of appropriate jurisdiction . . .,
unless such person has filed a complaint hereunder
or with any local commission on human rights, . .
that, where the division has dismissed such
complaint on the grounds of administrative
convenience, such person shall maintain all rights
to bring suit as if no complaint had been filed.
See Song v. Ives Labs., Inc., 735 F. Supp. 550
, 552 (S.D.N Y
1990); Keeley v. Citibank, N.A., 711 F. Supp. 157, 161 (S.D.N Y
1989); Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414,
1418 (E.D.N.Y. 1988), aff'd, 869 F.2d 130
(2d Cir. 1989).
While pending, SDHR proceedings are exclusive. N.Y.Exec.Law §
300. This scheme has been stringently upheld, even with respect
to claims brought under the Age Discrimination in Employment
Act ("ADEA"), which effectively precludes the bringing of state
human rights claims pendent to the federal claim. See, e.g.,
Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759,
761 (S.D.N.Y. 1986).
New York Executive Law § 297(3)(c) provides that "the
division may in its unreviewable discretion, at any time prior
to a hearing before a hearing examiner dismiss the complaint on
the grounds of administrative convenience." "Unreviewable" as
the SDHR's discretion may be, however, judicial review has been
deemed appropriate where the dismissal is "purely arbitrary,"
that is, where it "contravene[s] a statute, constitutional
right, or administrative regulation." Marine Midland Bank, N.A.
v. New York State Div. of Human Rights, 75 N.Y.2d 240, 246, 552
N YS.2d 65, 67, 551 N.E.2d 558, 560 (1989); cf. Pan Am. World
Airways, Inc. v. New York State Human Rights Appeal Bd., 61
N Y2d 542, 547, 475 N.Y.S.2d 256, 463 N.E.2d 597 (1984) (Human
Rights Appeal Board has limited power of review over dismissal
to determine if it was "arbitrary").
While Drummer maintains that the SDHR's administrative
convenience dismissal allows her to bring these claims in a
judicial action, Defendants urge that the administrative
convenience dismissal in this case was "arbitrary" because
Drummer requested it solely to pursue judicial relief in
federal court. They argue that this "litigation ploy."
"circumvent[s] the statutory structure of the Human Rights
Law." Def. Reply Memo. at 9 (citing National Broadcasting Co.
v. SDHR, No. 27068-89 (Sup.Ct. Mar. 7, 1988), aff'd mem.,
144 A.D.2d 1046, 534 N.Y.S.2d 58 (1st Dept. 1988)).
Regardless of what motivated Drummer to request an
administrative convenience dismissal, however, the plain
language of the applicable regulation dictates that this
dismissal not be found "arbitrary." The New York Codes Rules
and Regulations provides that:
(1) If the division finds that . . . noticing the
complaint for hearing would be . . . undesirable,
the division may, in its unreviewable discretion
at any time prior the taking of testimony at a
public hearing . . ., dismiss the complaint on
grounds of administrative convenience.
(2) The grounds for dismissal of a complaint for
administrative convenience may include, but not be
limited to, the following:
(vi) the complainant has initiated or wants to
initiate . . . [a] court action based on the same
9 NYCRR § 465.5(d)(2)(vi) (emphasis added); see also Realmuto
v. Yellow Freight Sys., Inc., 712 F. Supp. 287, 290-91 (E.D.N Y
1989) (administrative convenience dismissal valid where
plaintiff requested dismissal so he could bring judicial
action); New York Telephone Co. v. New York State Div. of Human
Rights, 561 N.Y.S.2d 401, 405, 148 Misc.2d 765, 770 (Sup.Ct.
Defendants erroneously cite National Broadcasting Co. v.
SDHR, No. 27068-89 (Sup.Ct. Mar. 7, 1988), aff'd mem.,
144 A.D.2d 1046, 534 N.Y.S.2d 58 (1st Dept. 1988), as authority for
the proposition that administrative convenience dismissals
granted to allow judicial action to proceed are arbitrary. That
case was decided before NYCRR 465.5(d) was amended to clarify
that an appropriate grounds for administrative convenience
dismissals include the existence of or desire to initiate
judicial action on the same grievance. See New
York Telephone Co., 561 N.Y.S.2d at 405, 148 Misc.2d at 770
(distinguishing National Broadcasting in light of amended
Defendants also object to the administrative convenience
dismissal of Drummer's HRL religious discrimination claim
because the amendment containing the claim was made more than
one year after the alleged discriminatory act thus depriving
the SDHR of jurisdiction over that claim. Defendants claim that
the SDHR should have dismissed the religious discrimination
claim for lack of jurisdiction rather than for administrative
Defendants point the court to the case of Marine Midland
Bank, N.A. v. New York State Division of Human Rights, 75
N Y2d 240, 552 N.Y.S.2d 65, 551 N.E.2d 558 (1989), in which
the New York State Court of Appeals held that the SDHR may not
dismiss time-barred complaints on grounds of administrative
convenience merely to permit subsequent judicial proceedings.
Id. at 246, 552 N.Y.S.2d at 67, 551 N.E.2d at 560. Any other
result, the court there reasoned, would render meaningless the
one year statute of limitations for commencing administrative
proceedings. Id.; see N.Y.Exec.Law § 297(5).
Nevertheless, Marine Midland does not address the question of
whether amendments to timely complaints, filed outside the one
year statute of limitation, may properly be dismissed for
administrative convenience. Under New York law, an SDHR
complainant may amend any complaint "reasonably and fairly,"
N YExec.Law § 297(4)(a), "in any manner, prior to a finding of
probable cause or no probable cause." 9 NYCRR § 465.4(b)(1).
Moreover, there is no evidence that the SDHR has determined
that the amendment was untimely. See Adames, 751 F. Supp. at
1576. Indeed, the SDHR rejected Defendants' objection to the
amendment on that ground. Finally, Defendants have pointed to
no regulation, statute, or constitutional provision that the
agency's action has contravened in granting the administrative
convenience dismissal of this claim. See id.
For these reasons, the administrative convenience dismissal
negates Defendants' claim that Drummer is barred from bringing
her HRL claims in this court.
3. Pendent Jurisdiction
A federal court has the power to hear state law claims under
the doctrine of pendent jurisdiction if the state and federal
claims derive from a "common nucleus of operative fact" such
that the plaintiff ordinarily would be expected to try them all
in one judicial proceeding. United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).
Pendent jurisdiction is a discretionary doctrine, however. Id.
The court "should" dismiss the state claims if the federal
claims are dismissed before trial, and "may" decline to
exercise its power over the state claims if it appears that
state issues substantially predominate, or if
non-jurisdictional reasons, such as the likelihood of jury
confusion, justify separating state and federal claims for
trial. Id. at 726-27, 86 S.Ct. at 1139. The court must balance
"considerations of comity, fairness to the litigants, judicial
economy, and the avoidance of needless decisions of state law."
Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 809
(2d Cir. 1979).
A. No Basis Exists for Pendent Jurisdiction over HRL
Religious Discrimination and Religious Harassment
Because this court has held that Drummer's federal claims of
religious discrimination and religious harassment must be
dismissed, pendent jurisdiction over her parallel state law
claims is inappropriate under Gibbs.
B. Pendent Jurisdiction Exists over HRL Sex Discrimination
Pendent jurisdiction is appropriate with regard to Drummer's
claim of sex discrimination under the HRL.
The undisputed factual similarity between the state and
federal sex discrimination claims empowers the court to hear
them together. Defendants argue that the predominance of issues
relating to the
state claim and the potential for jury confusion nevertheless
militate in favor of dismissal of the HRL claim. They claim
that several differences between the statutory schemes of Title
VII and the HRL justify such a finding.
Defendants first point out that Title VII does not provide
for trial by jury, whereas Drummer is entitled to a jury trial
on her state claims. Barbetta v. Chemlawn Servs. Corp.,
669 F. Supp. 569, 571 (W.D.N.Y. 1987). Secondly, they identify
differences in the standards for proving liability under Title
VII and the HRL. Under the HRL, for example, the doctrine of
respondeat superior is not applicable; to prevail against her
employer, the complainant must allege and prove that the
employer had knowledge or acquiesced in the discriminatory
conduct of the employee or supervisor. See id. at 571 n. 1
(citing Hart v. Sullivan, 84 A.D.2d 865, 866 445 N.Y.S.2d 40
(3d Dept. 1981), aff'd, 55 N.Y.2d 1011, 449 N.Y.S.2d 481,
434 N.E.2d 717 (1982)). Under Title VII, on the other hand,
"absence of notice to an employer does not necessarily insulate
that employer from liability" for sexual harassment by
employees. Meritor, 477 U.S. at 69, 106 S.Ct. at 2407. Finally,
Defendants argue that jury confusion is likely because Drummer
is entitled to seek compensatory, and possibly punitive,
damages under state law, N.Y.Exec.Law § 297(4)(c)(iii), but not
under Title VII, see Sims v. Mme. Paulette Dry Cleaners,
638 F. Supp. 224, 230 (S.D.N.Y. 1986).*fn6
District courts in the Second Circuit appear to be split on
the question of whether pendent jurisdiction is appropriate in
a case such as this. Compare, e.g., Song v. Ives, 735 F. Supp. 550,
554 (S.D.N.Y. 1990) (exercising pendent jurisdiction in
Title VII case) and Giuntoli v. Garvin Guybutler Corp.,
726 F. Supp. 494 (S.D.N.Y. 1989) (exercising pendent jurisdiction
over Human Rights Law claim) and Selbst v. Touche Ross & Co.,
587 F. Supp. 1015, 1017 (S.D.N.Y. 1984) (exercising pendent
jurisdiction) with Realmuto v. Yellow Freight Sys., Inc.,
712 F. Supp. 287, 291 (S.D.N.Y. 1989) (refusing to exercise pendent
jurisdiction over HRL claim in ADEA action because of potential
jury confusion on issue of damages); Burger v. Health Ins.
Plan, 684 F. Supp. 46, 50-51 (S.D.N.Y. 1988) (potential for jury
confusion one reason for dismissing state claim); Barbetta v.
Chemlawn Servs. Corp., 669 F. Supp. 569, 571 (W.D.N.Y. 1987)
(dismissing human rights complaint because jury confusion
likely) and Alveari v. American Int'l Group, Inc., 590 F. Supp. 228,
232 (S.D.N.Y. 1984) (retention of state claim would
complicate what would otherwise be simple non-jury case).
The cases refusing to exercise pendent jurisdiction are
distinguishable from this case. In each of those cases there
existed a factor additional to those present here which moved
the court to refuse to exercise pendent jurisdiction. In
Realmuto, for instance, the deciding factor seemed to be that
compensatory damages are not available during the ADEA
prelitigation, administrative conciliation process. The court
found that allowing pendent jurisdiction would dispel the
incentive to resolve disputes during conciliation. Realmuto, at
291 (citing Johnson v. Al Tech Specialties Corp., 731 F.2d 143,
147 (2d Cir. 1984)). In Burger, an ADEA case, the court wrote
that the issue of jury confusion over the difference between
damages under the ADEA and state law alone "probably would not
persuade the court to decline jurisdiction." Burger, at 50 n.
4. The court chose to decline jurisdiction because plaintiff
asked for relief to which she was not entitled and for
application of state law on an unprecedented basis. Id. at 50.
In Barbetta, an additional factor weighing in favor of
refusing jurisdiction was that plaintiff had asserted a claim
for intentional infliction of emotional distress. Barbetta at
571. And in Alveari, in addition to the issue of jury confusion
over the difference between damages for sex discrimination
under Title VII and state law, an ambiguity as to whether
plaintiff had made an election of remedies persuaded the court
to avoid the "procedural thicket" surrounding the state law.
Alveari at 232 & n. 23.
Because none of these additional factors are present in this
case, and because the state and federal claims are factually
related such that they should be tried in the same case,
considerations of judicial economy, convenience, and fairness
weigh heavily in favor of exercising jurisdiction over the
For the foregoing reasons, Defendants' motion to dismiss
Drummer's Title VII and state law claims of religious
discrimination and harassment is granted. Defendants' motion to
dismiss Drummer's Title VII claim against Morrissey for
personal liability is also granted. Defendants' motions to
dismiss the Title VII claim against Rosenthal is denied as is
their motion to dismiss Drummer's HRL claim of sex
It is so ordered.