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,