Complaint, as opposed to the original Complaint that had been filed with the Clerk on June 22, 1993. Plaintiff submitted a copy of the new Complaint attached to his Affidavit of Service, which was filed with the Court on June 21, 1995. The Affidavit of Service reflects that Plaintiff effected service on Chemical on the deadline, June 16, 1995. The second Complaint reasserts the allegations in the original Complaint, and adds an allegation of ongoing discrimination.
Plaintiff was a pro se litigant at the time of service. While the right to proceed pro se does not exempt a party from compliance with relevant rules of procedural and substantive law, that right should not be impaired by harsh application of technical rules. Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983). A pro se plaintiff, particularly one bringing a civil rights action, should be afforded an opportunity "fairly freely" to amend his Complaint. Holmes v. Goldin, 615 F.2d 83, 84 (2d Cir. 1980). A plaintiff is free to amend the complaint once as a matter of course, any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). The Court is satisfied that Plaintiff properly amended his original Complaint.
Chemical contends that the new Complaint was never filed with the Court and the original Complaint was never served, rendering service improper. In this case, it is unclear who stapled the second Complaint to the back of the proof of service, but if it had not been stapled, it would have been filed separately.
Furthermore, where an original Complaint is superseded by an amended Complaint, it is inappropriate to serve the original Complaint.
See, e.g., Nordic Bank PLC v. Trend Group, Ltd., 619 F. Supp. 542, 564 (S.D.N.Y. 1985). Although the Court is satisfied that Plaintiff properly served his second Complaint, Plaintiff shall file it with the Clerk of the Court, captioned as an "Amended Complaint," within ten days of the date of this Order.
C. Subject Matter Jurisdiction over Ongoing Discrimination Claims
Title VII has exhaustion and time requirements, discussed below, which divest a court of subject matter jurisdiction if not satisfied. 42 U.S.C. § 2000e-5(e); Butts v. City of N.Y. Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Plaintiff's second Complaint includes two counts alleging ongoing discrimination from the time of his hiring in 1971, to the filing of the Complaint in 1995. Plaintiff, by asserting ongoing discrimination claims, has added claims for which the 300-day filing period expired prior to the filing of his EEOC charge as well as claims that have not been exhausted because the acts occurred only after the filing of his EEOC charge. The Court will analyze these two categories of claims below to determine whether any of them may be maintained.
1. Discriminatory Conduct Occurring Before February 13, 1990
A plaintiff in New York has 300 days in which to file a charge with the EEOC. 42 U.S.C. § 2000e-5(e); Butts, 990 F.2d at 1401. If a plaintiff fails to file a timely charge with the EEOC, then the claim is time-barred. 42 U.S.C. § 2000e-5(e); Butts, 990 F.2d at 1401. The 300-day EEOC filing limitations period can be tolled by evidence of a continuing violation, waiver, estoppel, or equitable tolling, thus allowing a district court to consider incidents occurring outside of the 300-day window. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994), aff'd, 50 F.3d 3 (2d Cir. 1995). "Under [the] continuing violation doctrine, where the defendant has 'engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation. In such circumstances, if the charge has been filed no later than 300 days after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well.'" Dukes v. Steinman, Boynton, Gronquist & Birdsall, 1994 U.S. Dist. LEXIS 10394, No. 93 Civ. 7044, 1994 WL 406090, at *2 (S.D.N.Y. July 29, 1994) (quoting Association Against Discrimination in Emp., Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981), cert. denied, 455 U.S. 988, 71 L. Ed. 2d 847, 102 S. Ct. 1611 (1982)). In this case, Plaintiff's Amended Complaint alleges ongoing discrimination. (Compl. PP 5, 11.) If Plaintiff's claims fall into the continuing violation exception, this Court may hear claims about incidents occurring between 1971, when Plaintiff began his employment, and February 13, 1990 (300 days before the EEOC charge was filed).
Plaintiff's continuing violation claim, however, does not fall into this exception. "The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory lists, . . . or discriminatory employment tests." Carrasco, 858 F. Supp. at 31 (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994)) (emphasis in Carrasco). When the EEOC charge alleges only discrete incidents of non-promotion, as does Plaintiff's here, the continuing violation exception does not apply. See Carrasco, 858 F. Supp. at 31-32; Dukes, 1994 U.S. Dist. LEXIS 10394, 1994 WL 406090, at *3; see also West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995) ("The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern."). Accordingly, the continuing violation exception does not apply on these facts to toll the 300-day filing limitation.
Plaintiff has not argued that the 300-day limitations period should be tolled based on waiver, estoppel or equitable tolling, and the Court has seen no evidence to suggest that these doctrines could apply. Accordingly, all claims based on acts of discrimination, memorialized in P 5, occurring before February 13, 1990 are time-barred, and will be dismissed.
2. Discriminatory Conduct Subsequent to the EEOC Charge
Because "[a] district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge", Butts, 990 F.2d at 1401, to allow Plaintiff's claims based on conduct subsequent to the EEOC charge to proceed, the court must find those subsequently occurring claims reasonably related to the conduct alleged to the EEOC charge.
Plaintiff's EEOC charge alleged that Chemical discriminated against him by not promoting him on October 29, 1990. In the Amended Complaint, Plaintiff alleges that Chemical did not give him sufficient opportunities to advance throughout the course of his employment, including subsequent to the filing of his EEOC charge. (Compl. PP 5, 11.) If the Plaintiff can show that the alleged discrimination occurring subsequent to the filing of the EEOC charge is reasonably related to his failure-to-promote claim, then the Court has subject matter jurisdiction over those claims, arising after the filing of the charge on December 10, 1990. Butts, 990 F.2d at 1401.
The Second Circuit has recognized claims as reasonably related in three instances: where the later claim (1) would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, (2) alleges "retaliation by an employer against an employee for filing an EEOC charge", or (3) alleges "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.
The first type of "reasonably related" claim is "essentially an allowance of loose pleading." Id. at 1402 (quoting Smith v. American Pres. Lines, Ltd., 571 F.2d 102, 107 n.2 (2d Cir. 1978)). Because many complainants do not have counsel when they file their EEOC charges, a stringent pleading rule might trap unwary grievants into an overly narrow theory of their cases. See Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979) ("we look not merely to the four corners of the often inarticulately framed . . . charge"), rev'd on other grounds, 447 U.S. 807, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). Moreover, since the EEOC charge merely serves to alert the EEOC to the discrimination from which Plaintiff is allegedly suffering, so that the agency can investigate and attempt a conciliation, see 42 U.S.C. § 2000e-5(b), neither the agency nor defendants are prejudiced by this "loose pleading" standard. See Butts, 990 F.2d at 1402. Thus, if Plaintiff's claims of discrimination, subsequent to the filing of the EEOC charge, would reasonably be expected to fall within the scope of the EEOC investigation, this Court may properly consider them. Id. at 1402.
However, EEOC allegations that lack factual specificity may not serve as jurisdictional predicates for claims of subsequent discrimination in a federal complaint. Id. at 1403. This is so because "vague, general allegations" stymie the EEOC's procedures. The EEOC cannot be expected to investigate mere generalizations of misconduct, nor can defendants adequately respond to them. Id. ("Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boiler plate and Title VII's investigatory and mediation goals would be defeated.").
In the EEOC charge, Plaintiff alleged a single incident of discrimination and described the circumstances surrounding his October 29, 1990 request for a promotion. (Yoeh Aff. Ex. A.) A reasonable EEOC investigation would begin with the October 29, 1990 incident and proceed accordingly. The NYSDHR Determination and Order makes clear that NYSDHR only investigated the October 29, 1990 failure to promote. The NYSDHR Determination states "the investigation did, however, reveal that the person promoted [sic] to the position for which the complainant applied, is Asian and Korean the same race and national origin as the complainant." (Yoeh Aff. Ex. B P 3.) Given the Plaintiff's specific allegation, a reasonable investigation would not have proceeded any further. The investigation also revealed that the incident in question was "the only promotion for which the complainant applied, within one year of filing his complaint." (Id. P 5.)
Plaintiff alerted the EEOC to a discrete incident of discrimination and this Court is unwilling to find that subsequent failure to promote incidents would fall within the scope of the investigation surrounding the October 29, 1990 incident.
Because Plaintiff's continuing violation allegations are not reasonably related to his EEOC charge, the Court lacks jurisdiction to hear any such claims based on post-charge conduct.
D. Plaintiff's Demand for Compensatory Damages, Punitive Damages, and a Jury Trial
The Civil Rights Act of 1991 does not apply retroactively to discriminatory acts occurring prior to November 21, 1991. Peele v. New York City Dep't of Social Services/Human Resources Admin., 1995 U.S. Dist. LEXIS 18226, No. 92 Civ. 3765, 1995 WL 728478 (S.D.N.Y. Dec. 8, 1995) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994)). Plaintiff concedes that he has no right to demand compensatory damages, punitive damages, or a jury trial, for incidents occurring prior to November 21, 1991. However, he requests that the Civil Rights Act of 1991 be applied to his claims of ongoing discrimination after this date. As discussed above, this Court does not have jurisdiction over the ongoing discrimination claims, and thus the Civil rights Act of 1991 cannot be applied to them.
Defendant's motion is granted in part and denied in part. Defendant's motion to dismiss the Complaint in its entirety for filing a false In Forma Pauperis Application and failure to serve the Defendant properly, is DENIED. Plaintiff's claims of ongoing discrimination alleged in paragraphs five and eleven of the Amended Complaint are hereby DISMISSED.
Defendant's motion to strike Plaintiff's request for compensatory damages, punitive damages, and a jury trial is GRANTED.
Plaintiff is ordered to file a copy of the second Complaint with the Clerk of the Court, captioned "Amended Complaint," within 10 days of the date of this Memorandum and Order.
The parties are to appear for a pre-trial conference on November 15, 1996, at 10:00 a.m.
DATED: New York, New York
September 30, 1996
DEBORAH A. BATTS