in this case -- misuse of information about the plaintiff's medical condition -- is a fact closely related to her claims of discrimination. Nothing in the record indicates that the EEOC did not agree to include the retaliation charges. Once again, assuming the plaintiff's allegations are true and drawing all of the inferences in her favor, I conclude that any objective investigation growing out of the allegations made by this plaintiff to the EEOC would include her charges of retaliation. According to her allegation, which is supported by the Intake Questionnaire, those charges were related to the EEOC and would have been included in an investigation.
These very circumstances were addressed by Judge Mukasey in Best v. St. Clare's Hospital, 1989 U.S. Dist. LEXIS 13155, No. 89 Civ. 0751, 1989 WL 135266 (S.D.N.Y. Nov. 2, 1989). In Best, Judge Mukasey denied a motion to dismiss notwithstanding the absence of an allegation of age discrimination in the pro se plaintiff's EEOC charge of race discrimination. The plaintiff argued that she advised the EEOC during her intake interview, in subsequent telephone calls, and by letter, that she wished to assert an age discrimination charge. The plaintiff's explanations in Best were set forth in an affidavit that the defendant argued was hearsay, just as the defendant in the present case argues. And, just as Judge Mukasey explained in Best, "such information is admissible for the purpose of asserting that plaintiff made statements or heard statements, but not for the truth of the statements themselves." The plaintiff in Best asserted that the EEOC interviewer assured her that her age discrimination allegations were covered by her charge, notwithstanding the fact that only the "Race" box was checked and the descriptive text omitted any reference to age. The plaintiff also sent a letter to the EEOC setting forth the grounds of her age discrimination complaint identifying the reference number of her earlier charge. Judge Mukasey construed this letter, in combination with plaintiff's account of the original interview and subsequent telephone conversations, as an attempt to amend her charge, if not an additional charge entirely. The court then denied the motion to dismiss, holding that, in light of the plaintiff's letter, an EEOC investigation would be reasonably expected to include the plaintiff's allegations of age discrimination. The court concluded that "the EEOC's lack of investigation regarding the age discrimination charge does nothing to undermine the propriety of plaintiff's judicial complaint when plaintiff gave sufficient notice of the possibility that she would be making age based allegations." Indeed, the court continued "when the EEOC chooses not to investigate a charge, it would be unfair, given the remedial purpose of the ADEA, to preclude plaintiff's claim in this court on that basis."
This case is precisely on point with Best. Here the plaintiff alerted the EEOC to her claim of retaliation by mentioning it to the EEOC interviewer, according to the plaintiff. That assertion is buttressed by the Intake Questionnaire completed by the plaintiff which includes retaliation among its enumerated complaints of discrimination. The plaintiff alleges that the interviewer assured her that the retaliation complaint was encompassed in her formal charge. This is not a case where the plaintiff baldly asserts that a retaliation grievance was mentioned during the EEOC interview. Compare Catlett v. United States Postal Service, 795 F. Supp. 878, 881 (C.D. Ill. 1992). In this case, the Intake Questionnaire is objective documentary evidence that supports the plaintiff's assertion that the EEOC was fully aware of the plaintiff's retaliation allegations. Accordingly, an investigation of the retaliation charges would reasonably be expected to flow from the plaintiff's EEOC charge, and the plaintiff has satisfied the requirement that those charges be the subject of an EEOC charge before being brought as a suit in federal court.
Because I have denied the defendant's motion to dismiss the retaliation claims under Title VII and the ADA, I also deny the defendant's motion to decline supplemental jurisdiction over the related state and local retaliation claims.
Accordingly, for all the foregoing reasons, the defendant's motion to dismiss the retaliation counts under Title VII (Count Two) and the ADA (Count 4) are denied. I find that material issues of fact remain with respect to whether equitable considerations excuse the plaintiff's apparent failure to file an EEOC charge of retaliation, and alternatively and independently, that under the circumstances of this case, in an objective sense, an EEOC investigation would be reasonably expected to include the plaintiff's allegation of retaliation.
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