of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 1402 (citations and internal quotation omitted). Second, a claim of retaliation for the filing of the EEOC charge itself is so closely tied to the underlying substantive claim that it is considered exhausted. Id. Finally, a "third type of reasonably related claim is where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03 (citation omitted).
In this case, the defendant contends that Mr. Dixit's EEOC charge was limited to a claim of retaliation and that his current claims of discriminatory treatment must therefore be dismissed. If the defendant's characterization of the EEOC proceeding were accurate, this argument would have merit. An administrative complaint limited exclusively to a claim of retaliation is not likely to trigger an investigation of the underlying discriminatory treatment of which the plaintiff complained. This is because a victim of retaliation need only demonstrate that he was engaging in protected activity by making complaints of discrimination, not that the complaints were meritorious. See Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986); Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996). Thus, complaints of discriminatory treatment are not exhausted by prior administrative claims of retaliation for complaining of such treatment. See Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222-23 (8th Cir. 1994); Walsh v. National Westminster Bancorp., Inc., 921 F. Supp. 168, 172 (S.D.N.Y. 1995); Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1995).
However, Mr. Dixit's EEOC charge in this case is not so clear cut. In his narration he does seem to focus on retaliation, and he identifies the only date of discriminatory treatment as the date of his termination. On the other hand, in indicating the nature of the discrimination he was claiming, Mr. Dixit checked boxes for religion, national origin, and age, but not for retaliation. Cf. Williams, 21 F.3d at 223 (plaintiff who checked only retaliation box on EEOC form precluded from bringing Title VII action on basis of race). Thus, a close issue would be presented if the EEOC had simply issued a right to sue letter without conducting an investigation. Under those circumstances, it would be necessary to predict whether the plaintiff's ambiguous EEOC complaint could reasonably have been expected to trigger an investigation of alleged discriminatory treatment.
But in this case, no such speculation is required. The EEOC did conduct an investigation that covered not only the plaintiff's claims of retaliation but also allegations of discrimination on the basis of national origin, age, and religion. This is clear from the EEOC's determination, which specifically identifies each of these categories. Thus, the exhaustion requirement has been satisfied with respect to Mr. Dixit's claims of national origin and religious discrimination. See Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996) ("The district court here had jurisdiction over the plaintiffs' claim of class discrimination in promotion if that claim fell within the scope of the EEOC's actual investigation or an EEOC investigation which could reasonably be expected to grow out of the charge of discrimination.") (citation and internal quotations omitted); National Association of Government Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698, 711-12 (5th Cir. 1994).
A closer question is presented with respect to Mr. Dixit's claim of race discrimination. An assertion of racial bias is conceptually distinct from a claim of discrimination on the basis of national origin. See Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F. Supp. 13, 19 (D.D.C. 1996); Schaffrath v. Akron/Summit/Medina Private Industrial Council, 674 F. Supp. 1308, 1312 (N.D. Ohio 1987). Therefore, raising a claim of national origin discrimination before the EEOC will not suffice to exhaust a charge of discrimination on the basis of race.
In filling out the EEOC complaint form in this case, Mr. Dixit did not check the box indicating that he believed that he was being discriminated against on the basis of his race. He did, however, identify himself as an "Asian Indian." Some courts have treated this as a racial category. See Mody v. City of Hoboken, 959 F.2d 461, 462, 466 (3d Cir. 1992). Others have dealt with it as a designation of national origin. See Dhuria v. Trustees of University of District of Columbia, 827 F. Supp. 818, 819-20, 827 (D.D.C. 1993); Jindal v. New York State Office of Mental Health, 728 F. Supp. 1072, 1073-74, 1076 (S.D.N.Y. 1990). In general, "Asian Indian" is most commonly a characterization of both race and national origin, since it denotes someone with Asian racial characteristics whose ethnic background is Indian. See Saini v. Bloomsburg University Faculty, 826 F. Supp. 882, 884, 887 (M.D. Pa. 1993).
Under these circumstances, the EEOC can reasonably be expected to investigate both racial and national origin bias when a complainant claims to have been discriminated against because he is an Asian Indian. In this case that expectation was reinforced when, in responding to Mr. Dixit's EEOC charge, the defendant explicitly treated "Asian" as a designation of race. The response states, "We can neither affirm nor deny that Complainant is Asian Indian, of Hindu Boahim [sic] Religion. The New York City Department of General Services' computerized personnel tracking system indicates Complainant's race is Asian. However, this tracking system does not provide information regarding an employee's national origin or religion." Aronson Decl., Exh. O, P 3. Therefore, the plaintiff's claim of discrimination on the basis of race is also adequately exhausted.
B. Statute of Limitations
In general, a discrimination claim under Title VII must be filed with the EEOC within 180 days of the date when the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). However, in states like New York that have their own antidiscrimination laws and enforcement agency, the limitations period for filing claims with the EEOC is 300 days. Id.; Ford v. Bernard Fineson Development Center, 81 F.3d 304, 307 (2d Cir. 1996). Any claim not brought within this period is time-barred and may not be the basis for relief in federal district court. See Butts, 990 F.2d at 1401. In this case, Mr. Dixit filed his administrative complaint with the EEOC on January 27, 1993. Aronson Decl., Exh. N. Accordingly, the defendant argues that the plaintiff is now barred from asserting any claims for alleged discriminatory acts that occurred prior to April 1, 1992, which was 300 days before the filing date.
In response, Mr. Dixit contends that his termination was merely the culmination of a continuing violation of Title VII, such that acts of discrimination prior to April, 1992 may be considered.
Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.