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DRUMMER v. DCI CONTRACTING CORP.

September 16, 1991

EVELYN R. DRUMMER, PLAINTIFF,
v.
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.

  OPINION

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.

The Parties

Drummer is an orthodox Jewish woman residing in Brooklyn, New York.

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.

Background

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 practices.

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 birth.

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 discriminatory conduct.

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 defendant.

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 § 296(1).*fn1

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.

Discussion

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, ...


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