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March 8, 1996

DONNA L. ANGOTTI, Plaintiff,
KENYON & KENYON, Defendant.

The opinion of the court was delivered by: KOELTL

 The defendant now moves to dismiss the plaintiff's claim of retaliation under both Title VII (Count Two) and the ADA (Count Four) based on the failure to exhausted her administrative remedies by timely filing of a charge of retaliation with the Equal Employment Opportunity Commission. The defendant also seeks to dismiss the state and city claims for retaliation, arguing that once the federal causes of action are dismissed, the Court should decline to exercise supplemental jurisdiction over the state and local claims pursuant to 28 U.S.C. Section 1367(c). This motion turns on the question of whether the two federal claims survive.

 The defendant has characterized mistakenly its motion as a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The defendant relies, however, on the plaintiff's apparent failure to exhaust her administrative remedies by filing a charge of retaliation with the EEOC as prescribed by both Title VII, see 42 U.S.C. Section 2000-e-5(e)(1), and the ADA. See 42 U.S.C. Section 12117(a), (which adopts the enforcement scheme of Section 2000e-5 by reference). It is well established, however, that filing a timely charge with the EEOC is not a jurisdictional prerequisite to a suit in federal court -- rather it is a condition precedent and "like a statute of limitations, is subject to waiver, estoppel and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). See Butts v. the City of New York Dep't of Housing Preservation & Dev, 990 F.2d 1397, 1401 (2d Cir. 1993); O'Connor v. Pan Am, 1990 U.S. Dist. LEXIS 5403, No. 88 Civ. 5962, 1990 WL 118286, at *1 (S.D.N.Y. May 4th, 1990). Consequently, the defendant's motion is properly characterized as a motion to dismiss under Rule 12(b)(6). See Ghartey v. St. John's Queens Hospital, 869 F.2d 160, at 162 (2d Cir. 1989) (statute of limitations defense should be asserted under Rule 12(b)(6). Accordingly, and as I believe counsel agreed, I construe the defendant's motion to dismiss under Rule 12(b)(6).

 On such a motion, the facts alleged in the complaint are presumed true and all reasonable inferences are drawn in the plaintiff's favor. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Brass v. American Film Technologies, Inc. 987 F.2d 142 at 150 (2d Cir. 1993). The Court may consider documents attached to the complaint as exhibits, or incorporated by reference, or of which the plaintiff had knowledge and relied upon to bring the suit. Brass 987 F.2d at 150. A motion to dismiss may be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim," Scheuer v. Rhodes, 416 U.S. 232 at 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), a requirement that compels even more vigilance with respect to civil rights violations or where the plaintiff is pro se. See Easton v. Sundram, 947 F.2d 1011 at 1015 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992). With these principles in mind, I now turn to the substance of the defendant's argument.

 The defendant argues that the EEOC charge filed by the plaintiff, while timely, includes no mention of retaliation for her complaints of sex and disability discrimination. The boxes labeled "Sex" and "Disability" on the charge form are marked, but the one labeled "Retaliation" is not. Moreover, the description of the alleged discriminatory acts do not include any mention of retaliation. In the complaint for this lawsuit, the defendant points out, there are causes of action under both Title VII and the ADA for alleged retaliation in response to the plaintiff's acts opposing discrimination by the defendant. The particular retaliatory act alleged in the complaint is the disclosure by the defendant of confidential medical information about the plaintiff -- information that another employee of the firm allegedly used to humiliate and harass the plaintiff. (See Compl. paragraphs 40 to 43.) The defendant argues that the EEOC charge omits any mention of the retaliation and therefore the plaintiff is barred from suing on this claim now.

 The plaintiff responds with two distinct arguments. First, the plaintiff explains that she attempted to include her claim for retaliation in the EEOC charge but was informed by the EEOC interviewer that such claims were not within the EEOC's jurisdiction. When the plaintiff objected, she says the interviewer conceded that such claims were handled by the EEOC but that her claim would be rejected if the "Retaliation" box was marked. The plaintiff goes on to say that she signed and filed the charge without marking the box or including a description of the alleged retaliation out of concern that her entire claim would be rejected and after being assured by the interviewer that the charge was sufficient to include those claims in any case.

 In support of her assertions, the plaintiff has submitted a copy of the Intake Questionnaire she completed before meeting with the EEOC interviewer. (See Angotti Aff. Ex. A.) The Intake Questionnaire requests a description of the actions the complainant believes were discriminatory and instructs that the reverse side of the form is to be used if more space is needed. In that space, and on the reverse side of the form, the plaintiff listed her allegations of discrimination including "retaliation for complaints of sex discrimination and disability discrimination." The plaintiff argues that the Intake Questionnaire substantiates her account of the faulty instructions given to her by the EEOC interviewer. The plaintiff contends that she should not be barred from pursuing causes of action for retaliation because she made a good faith effort to file a retaliation charge with the EEOC, and it was the EEOC that prevented her from complying with the statutory prerequisites for her lawsuit.

 The plaintiff's second argument is that her claim of retaliation is "reasonably related" to the allegations that were included in the EEOC charge. The plaintiff argues that the scope of an EEOC investigation based on the charge she filed would be reasonably expected to include an inquiry into retaliation for her complaints of discrimination based on sex and disability.

 With respect to the first argument, the defendant does not refute the plaintiff's explanation, but instead criticizes the plaintiff's affidavit as self-serving and replete with hearsay. The defendant also argues that the plaintiff fails to offer an affidavit from the EEOC interviewer. Furthermore, the defendant points out that while the plaintiff was pro se when she filed her EEOC charge, she is herself an experienced attorney, and had consulted informally with an attorney from a prominent New York employment discrimination law firm. Indeed, the defendant contends, the plaintiff states in her affidavit that she knew her retaliation claim was a proper claim under the law. Finally, the defendant argues that the Intake Questionnaire is unsworn and therefore does not comply with the statutory requirement that an EEOC charge be "in writing under oath or affirmation." 42 U.S.C. Section 2000e-5.

 With respect to plaintiff's argument that her retaliation claim is "reasonably related" to her charges of sex and disability discrimination, the defendant disagrees and contends that, while similar, actions for retaliation are distinct from those of discrimination, and where the alleged retaliation occurred prior to the filing of the EEOC charge, as is the case here, the case law does not support the plaintiff's position.

 The Supreme Court has directed that the EEOC filing requirement is subject to equitable doctrines such as waiver, estoppel and tolling, see Zipes 455 U.S. at 393, and the Court of Appeals for the Second Circuit has acknowledged the application of equitable considerations in appropriate circumstances. See Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 48-49 (2d Cir. 1985); Johnson v. Al Tech Specialties Steel Corp, 731 F.2d 143, 146 (2d Cir. 1984). The doctrines of equitable estoppel and equitable tolling have been discussed in cases where a plaintiff sought to avoid dismissal of Title VII suit based on untimely filing of an EEOC charge. See, e.g., Dillman v. Combustion Engineering, Inc, 784 F.2d 57 (2d Cir. 1986) (discussing both doctrines, although applying neither). Neither of these principles is directly applicable in the present case under current Second Circuit cases.

 Equitable estoppel prevents a defendant from asserting the statute of limitations as a defense where "the plaintiff knew of the existence of the cause of action but the defendant's conduct caused the plaintiff to delay the bringing of the lawsuit." Buttry v. General Signal Corp, 68 F.3d 1488, 1493 (2d Cir. 1995) (quoting Cerbone, 768 F.2d at 50). The doctrine "has been invoked in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation." Cerbone, 765 F.2d at 50. See also Buttry, 68 F.3d at 1494; Dillman, 784 F.2d at 60 to 61; Seedman v. Alexander's, Inc, 683 F. Supp. 924, 926 (S.D.N.Y. 1987). In this case, it is the EEOC, not the defendant that is accused of acting in a manner that prevented the plaintiff from including her retaliation allegation in her charge. Accordingly, the doctrine of equitable estoppel is not applicable here. Cf. Long v. Frank, 22 F.3d 54, 58 to 59 (2d Cir. 1994) (applying equitable estoppel for EEOC conduct where the defendant was federal government), cert. denied sub nom. Long v. Runyon, 130 L. Ed. 2d 883, 115 S. Ct. 938, (1995).

 On the other hand, the doctrine of equitable tolling is not applicable to the circumstances here either. "Equitable tolling prevents the running of a statute of limitations against the plaintiff who is unaware that he has a cause of action because of defendant's fraudulent acts or concealment." Bennett v. United States Lines, 64 F.3d 62 and 66 (2d Cir. 1995). The doctrine does not apply here for two reasons. First, there is nothing to toll. It is undisputed by the parties that the EEOC charge filed by the plaintiff was timely. The dispute is whether that charge includes a claim of retaliation. If it does, then that charge is timely filed as well and no tolling is necessary. If it does not, then the plaintiff has never filed a charge of retaliation at any time, timely or otherwise. Indeed, a case presenting strikingly similar facts recognized this very paradox. In Stutz v. Depository Trust Co, 497 F. Supp. 654 (S.D.N.Y. 1980), the pro se plaintiff blamed her failure to check the "retaliation" box on her complaint on faulty instructions given to her by the state human rights representative. The court found nothing to contradict the plaintiff's explanation but did not hold her complaint sufficient to satisfy the filing requirement. Instead, the court dismissed her complaint without prejudice to renewal once she properly filed her retaliation charge with the EEOC and received a right-to-sue letter. In another more recent case, a plaintiff asserted that the EEOC misled him into believing it was unnecessary to add his assault and harassment claims to his failure-to-promote EEOC charge. See Edmonston v. MGM Grand Air, Inc, 808 F. Supp. 197 at 203 (E.D.N.Y. 1992). On a motion for summary judgment, the court rejected the plaintiff's argument that the statute of limitations should be tolled because the plaintiff did not present any extrinsic evidence in ...

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