The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
Tyrone Humphrey brings this suit under both Title VII of the Civil Rights Act of 1964, as amended [hereinafter Title VII], 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 against his former employer, Council of Jewish Federations, Inc. ("the Council").
The Council moves to dismiss this action pursuant to Federal Rules of Civil procedure 12(b)(1) and (6). For the reasons stated below, the motion is denied.
Defendant is a not-for-profit corporation based in the state of New York. (Levin Aff. of 10/28/94, P 2; Compl. P 9.) The Council is the coordinating structure of many local federations which raise money for philanthropic and eleemosynary activities. (Levin Aff. of 10/28/94, P 2.) Plaintiff Tyrone Humphrey ("Humphrey"), an African-American citizen of the United States, began working with the Council as a printer in 1976. (Compl. PP 8, 11.) He was promoted twice -- once in 1981 to Assistant Productions Supervisor and again in 1986 to production Supervisor. (Compl. P 11.) Humphrey worked under a collective bargaining agreement ("the Agreement") between the Council and the District Council 1707, Community and Social Agency Employees Union, AFSCME, AFL-CIO ("the Union"). (Levin Aff. of 10/28/94, P 3.) The Agreement contained provisions relating to the terms and conditions of employment of all employees and to the grievance-arbitration procedure. (Levin Aff. of 10/28/94, P 3.)
On or about October 1, 1990, Humphrey was informed that his position was to be terminated as of January 1, 1991. (Compl. P 12; Levin Aff. of 10/28/94, P 5.) Under the Agreement, Humphrey could opt to assume the job of a less senior employee. (Compl. P 13.) On November 28, 1990, Humphrey notified the Council that he would take this option. (Compl. P 13.) On December 10, 1990, Humphrey was informed by the Council that he would be demoted to the position of the least senior employee in the department; he was also informed that his pay would decrease one salary increment. (Compl. P 13.) Plaintiff alleges that other similarly situated white employees whose positions were retrenched did not have their salaries lowered. (Compl. PP 14-17 ; Powell Decl. Ex. A (EEOC Charge of Discrimination no. 160911976) [hereinafter EEOC Complaint].) Finally, in mid-1992, the Council made further employee cutbacks in the department; consequently, Humphrey was dismissed. (Levin Aff. of 10/28/94, P 13; Compl. P 30.)
A series of allegedly discriminatory incidents accompanied these retrenchment proceedings. In November 1990, Humphrey inspected his personnel folder and found three negative letters of which he claims he had not been previously aware. (Compl. P 18.) In addition, on December 10, 1990, the Council issued Humphrey and his co-workers a final warning letter regarding poor work. (Compl. P 18.) Humphrey alleges that these actions are a part of the discrimination he has experienced. (Powell Decl. Ex. B (EEOC Amendment to EEOC Complaint) [hereinafter EEOC Amendment].)
On November 20, 1991, Humphrey asked the Council if he could miss work on November 22nd because he had a doctor's appointment. (Compl. P 21; Humphrey Aff. P ll.c.) Because the Council was having its annual General Assembly that week, (Levin Aff. of 10/28/94, P 10), Humphrey was given a "final warning" letter on November 22, 1991, stating that he would be discharged if he did not show up for work that day. (Compl. P 23; Humphrey Aff. P 11(c).) Humphrey missed his doctor's appointment and attended work on the day in question. (Compl. P 21.)
Furthermore, Humphrey alleges that, "throughout the period of his complaints" and until his dismissal, he was subject to racial harassment by his supervisor; he complained to the Council, which did nothing, (Compl. P 20); he was given job tasks outside his job description, (Compl. P 29); and he was given a bad evaluation on February 29, 1992, (Compl. P 28). It appears that Humphrey is alleging that, despite the fact that some of these incidents may predate the filing of his first EEOC complaint on June 28, 1991, these are all acts of discrimination and retaliation for his filing of an EEOC complaint. (Compl. PP 19, 20, 23, 31.)
Humphrey filed his first complaint with the EEOC on June 28, 1991. (Compl. P 19.) In this complaint, he alleged that his being informed of the retrenchment and demotion was an act of discrimination in violation of Title VII. (EEOC Complaint.) On September 27, 1991, he filed an amendment to this EEOC Complaint. (Compl. P 19.) In this amendment, he realleged the original charges and added charges about the poor evaluation letters he found in his file in November of 1990. (EEOC Amendment.) He also changed the date of the last act of discrimination to December 10, 1990 -- the date on which he was informed his salary would be decreased along with his demotion. (EEOC Amendment.) Humphrey made a second amendment to his charges on December 4, 1991. (Compl. P 19.) Instead of filing yet another EEOC amendment, this time he filed with the New York State Division of Human Rights ("NYSDHR") an amendment claiming he was denied his request to go to the doctor as an act of retaliation for filing his original EEOC Complaint. (Powell Decl. Ex. E (NYSDHR Amendment to EEOC Complaint) [hereinafter NYSDHR Amendment].) Humphrey did not add to his charges any claim regarding his final termination in 1992. (Levin Aff. of 10/28/94, P 16.)
Contemporaneous with his EEOC filings, Humphrey was also pursuing Union based options of redress. On December 31, 1990, Humphrey submitted two grievances to Defendant regarding his cut in pay and the objectionable letters in his file. (Humphrey Aff. P 10.) After Defendant had denied the grievances, Humphrey was informed that the arbitrator had rejected the grievances as untimely filed. (Humphrey Aff. P 10; Levin Aff. of 10/28/94, Ex. D.)
On December 17, 1991, Humphrey and two white Union representatives attended an arbitration hearing regarding the salary reduction; Humphrey alleges that he was not paid for time spent at the hearing while the two white representatives were. (Compl. P 27.) Humphrey then filed grievances over this lack of payment and the November 22nd missed doctor's appointment. (Levin Aff. of 10/28/94, Ex. F.) On August 30, 1992, the arbitrator decided against Humphrey on the payment issue, because it was determined that none of the three was paid for the time spent at the arbitration hearing. (Levin Aff. of 10/28/94, Ex. F; Levin Aff. of 1/6/95, P 5.) On the issue of the doctor's appointment, however, the arbitrator ruled that the final warning letter would be removed from Humphrey's file. (Levin Aff. of 10/28/94, Ex. F.)
A final grievance was filed in mid-1992 by the Union regarding the overall reduction. (Def.'s Mem. of Law at 6.) This grievance was denied by an arbitrator on November 30, 1993. (Levin Aff. of 10/28/94, Ex. H.)
In a letter dated April 6, 1994, the NYSDHR dismissed Humphrey's complaint for lack of probable cause. (Levin Aff. of 1/6/95, Ex. C.) Also, on June 22, 1994, the EEOC determined that the evidence did not establish a violation of the statutes. (Levin Aff. of 10/28/94, Ex. I.) Humphrey received a right to sue letter from the EEOC dated May 31, 1994. (Compl. Ex. B.) He then timely filed the instant Complaint with this Court on July 14, 1994.
The Complaint in this action alleges only two causes of action: one invoking Title VII and the other invoking 42 U.S.C. § 1981. Crammed within each alleged cause of action, however, is a scatter gun, everything but the kitchen sink array of various alleged wrongful acts on the part of Defendant. Because the Complaint as filed is unintelligible, it will be helpful to summarize Humphrey's various ...