considered for the career advancement opportunities that white employees obtain. Id., P 34. Finally, he asserts that his career opportunities have been limited despite his proven skill and abilities while Caucasian co-workers with less seniority and no higher qualifications have been selected for promotions, training, and job placements which have advanced their careers with increased pay and benefits accruing to them. Id., P 36.
In count four, plaintiff alleges that defendant's supervisors have discriminated against him on account of his disability in violation of the ADA, causing plaintiff to suffer financial loss and mental anguish. Id., PP 38-52. More specifically, plaintiff claims that defendant's supervisors (1) refused to reasonably accommodate plaintiff's "known disability," id., P 41; (2) refused him overtime opportunities provided to similarly situated employees, id. ; (3) "otherwise treated him differently," id. ; (4) improperly disclosed his disabilities to co-workers causing plaintiff to be ridiculed and scorned by his co-workers, id., P 42; (5) applied discriminatory procedures and policies more harshly to plaintiff than to similarly situated employees, id., P 44; (6) maintained surveillance operations against plaintiff for alleged work rule violations while they have forgiven his co-workers for similar, or more serious, work rule violations, id., P 46; and (7) investigated plaintiff's private life without justification while they have not invaded the privacy of similarly situated co-workers, id., P 46. Plaintiff never specifies the nature of his disability in his complaint or any supporting papers, although in his memorandum of law in opposition to the motion to dismiss he states that he is a partially disabled war veteran. Item 10, p. 12.
In count five, plaintiff contends that defendant violated the FMLA in several ways, causing him to suffer a loss of income and emotional distress. Item 1, PP 53-59. First, plaintiff alleges that defendant denied him necessary medical leave after he had followed the employer notification procedures set forth under the FMLA. Id., P 56. Second, he claims that defendant's supervisors discriminated against him for taking leaves of absence authorized under the FMLA. Id., P 57. Once again, plaintiff has not specified the nature of his illness in his complaint or any supporting papers. Plaintiff merely states that he was an eligible employee with a serious health condition as defined by 29 U.S.C. § 2611. Id., P 55.
Finally, in counts six and seven, plaintiff repeats his race and disability discrimination claims and alleges that the same acts violate the New York Human Rights Law. Id., PP 60-69. Specifically, he contends that defendant discriminated against plaintiff in his employment based on his race in violation of N.Y.Exec.L. §§ 296-97, id., P 62, and that defendant discriminated against plaintiff in his employment based on his disability in violation of the Human Rights Law (no section cited). Id., P67.
Defendant has moved to dismiss this case on the pleadings pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Items 6-7. Specifically, he contends that (1) the court lacks jurisdiction to hear most of plaintiff's claims because they are not reasonably related to plaintiff's underlying EEOC complaint; (2) plaintiff's conclusory allegations are insufficient to state a claim of discrimination under Title VII, the ADA, the FMLA or the New York Human Rights Law; and (3) plaintiff failed to state a claim with respect to his allegations of continuing discrimination.
I. Relation to Plaintiff's EEOC Charge
Although defendant has characterized this part of its motion as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), "it is well established . . . 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.'" Angotti v. Kenyon & Kenyon, 929 F. Supp. 651, 653 (S.D.N.Y. 1996) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982)). Consequently, defendant's entire motion shall be treated as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). As such, the facts alleged in the complaint shall be presumed true, and all reasonable inferences shall be drawn in plaintiff's favor. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
A district court may only hear those 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 v. City of New York Dept. of Housing, 990 F.2d 1397 (2d Cir. 1993) (quoting Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985)). This exhaustion requirement is designed to give the administrative agency the opportunity to investigate, mediate, and take remedial action to encourage the settlement of discrimination disputes through conciliation and voluntary compliance. Butts, 990 F.2d at 1401; Stewart, 762 F.2d at 198. If a complainant could litigate a claim not previously presented to and investigated by the EEOC, then the exhaustion element of Title VII's statutory scheme could easily be circumvented.
The Second Circuit has identified three situations where claims not alleged in an EEOC charge are sufficiently related to the allegations in the charge such that it would be unfair to bar such claims in an employment discrimination action brought under the federal civil rights laws. Butts, 990 F.2d at 1402. First, an employee can bring a claim in a civil action that was not raised in the EEOC charge where the conduct complained of would fall within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. (citing Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)); Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979), rev'd on other grounds, 447 U.S. 807, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). This flexibility is based on the Second Circuit's recognition that most EEOC charges are filled out by employees without the benefit of counsel and that the primary purpose of the charge is to alert the EEOC to the discrimination that the plaintiff claims he is suffering. Butts, 990 F.2d at 1402. Thus, the district court must consider whether the facts underlying the new claim are sufficiently similar to those alleged in the EEOC charge such that the new claim would reasonably have flowed from the investigation of the EEOC charge. See Gomes v. Avco Corp., 964 F.2d 1330, 1334-35 (2d Cir. 1992).
Second, an employee can bring a new claim if it alleges retaliation by the employer for filing the EEOC charge. Butts, 990 F.2d at 1402 (citing Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993)); Owens v. New York City Housing Authority, 934 F.2d 405, 410-11 (2d Cir.); cert. denied 502 U.S. 964, 116 L. Ed. 2d 451, 112 S. Ct. 431 (1991). The Second Circuit has relaxed the exhaustion requirement based on the close connection of the retaliatory act to both the initial discriminatory act and the filing of the charge itself. Butts. 990 F.2d at 1402.
Due to the very nature of retaliation, the principle benefits of EEOC involvement, mediation of claims and conciliation, are much less likely to result from a second investigation. Indeed, requiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination.