state of mind is generally unavailable to a plaintiff. Rosen v. Thornburgh, 928 F.2d at 533.
Accordingly, because there are issues of material fact concerning plaintiff's constructive discharge claim, defendants' motion for summary judgement is denied.
E. Administrative Proceedings
The defendants contend that because plaintiff's EEOC administrative charge only alleges national origin and perhaps race discrimination, plaintiff's allegations of religious and ethnic discrimination are barred in this action. In addition, defendants state that many of the claims, such as physical abuse, set forth in plaintiff's second amended complaint were not included in plaintiff's administrative charges.
A plaintiff may not assert claims in a Title VII lawsuit that were not included in his EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). This policy serves to prevent circumvention of the EEOC's investigatory and conciliatory roles, and to provide defendants with adequate notice of all charges. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989). A claim omitted from an EEOC charge may be raised in a Title VII complaint where such claim is "reasonably related to the allegations and claims in the administrative charge . . . ." Doyle v. Sentry Ins., 877 F. Supp. 1002, 1007 (E.D. Va. 1995), quoting Nicol v. Imagematrix, Inc., 767 F. Supp. 744, 753 (E.D.Va. 1991).
In response to defendants' motion, plaintiff states that the religious and ethnic discrimination allegations should be allowed to stand because plaintiff was not represented by counsel when he met with a representative of DHR to file his complaints with the DHR and the EEOC. The DHR representative used a four-page statement prepared by the plaintiff and an affidavit signed by the plaintiff to prepare the administrative charge. Plaintiff allegedly signed the charge after it was prepared by the representative relying on the preparer's expertise in drafting the complaint.
The Second Circuit has stated that because EEOC charges are generally filed by pro se parties "not versed in the vagaries of Title VII and its jurisdictional and pleading requirements, [the Court] has taken a 'flexible stance in interpreting Title VII's procedural provisions,' so as not to frustrate Title VII's remedial goals." Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991), quoting Egelston v. State University College at Geneseo, 535 F.2d 752, 754-55 (2d Cir. 1976).
Although the DHR-prepared charge does not notify defendants that plaintiff is pressing charges regarding physical assault or religious discrimination per se, those charges are reasonably related to the claims of national origin and race discrimination in this case in light of both plaintiff's pro se status at the time the charges were filed and the nexus between harassment based on national origin and that based on ethnicity or religious belief. EEOC's role has not been circumvented and these additional allegations amplify the charges as asserted in the EEOC claim. For these reasons, defendants' motion for summary judgment on this ground is denied.
F. Hostile Work Environment Claim
The defendants contend that Quad should not be held liable under a hostile work environment theory for acts that plaintiff never brought to their attention during his employment there.
To assert a Title VII or section 1981 claim based on a hostile work environment, a claimant must establish that the workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter that work environment. Harris v. Forklift Systems Inc., 510 U.S. 17, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993). A claimant must also establish that a basis exists for imputing the conduct that created the hostile environment to the employer. Karibian v. Columbia University, 14 F.3d 773, 779 (2d Cir.), cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994).
The common law principles of agency determine whether the conduct of a supervisor or co-worker should be imputed to the employer. Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995). An employer's liability is absolute when a supervisor asserts the authority designated to him by the employer to further the creation of a hostile work environment. Karibian v. Columbia University, 14 F.3d at 779. However, employer liability for a hostile environment created by low level supervisors or co-workers attaches only when the employer has "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992); see also Karabian v. Columbia University, 14 F.3d at 780.
Plaintiff argues from the evidence submitted that he was subjected to a hostile work environment in which co-workers, supervisors and managers all were involved. Although plaintiff did not follow the official complaint procedure, he offers evidence that he notified supervisors of many of the alleged incidents of harassment. This evidence creates questions of fact as to defendant Quad's knowledge and response. Defendant Quad's motion for summary judgement on this ground must, therefore, be denied.
G. Miscellaneous Claims
Finally, defendants seek summary judgement on and dismissal of those claims of discrimination which on their face betray no animus based on race, national origin, religion or ethnicity. Generally, these include allegations of incidents in which plaintiff was called various names by co-workers.
While these alleged incidents do not establish discriminatory intent when viewed in isolation, they must be examined on this motion in context with the other evidence of such intent offered by plaintiff. Viewed in that context and in the light most favorable to plaintiff, those incidents raise issues of fact as to the intent with which the comments were made. Defendants' motion on this ground must, therefore, be denied.
WHEREFORE, for the reasons stated above, it is
ORDERED that defendants' motion for summary judgment be GRANTED in part as follows:
1. Summary judgment as to defendants Kirk, Dutcher, Robarge and Clothier is granted on the Title VII claim;
2. Summary judgment as to defendants Kirk and Robarge is granted on the Section 1981 and Human Rights Law claims;
3. Summary judgment is granted all defendants on the Title VII and section 1981 claims as to the demands for compensatory and punitive damages and for a jury trial for all acts of discrimination alleged to have occurred prior to November 21, 1991; and
IT IS FURTHER ORDERED that defendants' motion for summary judgment is DENIED in all other respects.
David R. Homer
United States Magistrate Judge
Dated: June 3, 1996
Albany, New York