the point. This is not a matter of correcting prior inartful pleading by a pro se litigant. A pro se plaintiff is no more entitled to present unexhausted claims than a plaintiff who is represented by a lawyer. See Shannon v. Ford Motor Co., 72 F.3d 678, 684-85 (8th Cir. 1996) ("there is a difference between liberally reading a [pro se] claim which 'lacks specificity,' and inventing, ex nihilo, a claim which simply was not made" before the EEOC) (quoting Pickney v. American Dist. Telegraph Co. of Arkansas, 568 F. Supp. 687, 690 (E.D.Ark. 1983)). Moreover, it is irrelevant whether the original complaint alleged matters relating to plaintiff's proposed new claims. To the extent that those allegations went beyond the scope of her EEOC charge, they cannot form the basis for new claims not reasonably related to her EEOC claims.
I also agree with Kodak that to the extent that plaintiff seeks to amend her complaint to add claims based on events occurring more than 300 days prior to the date of filing of her EEOC charge, plaintiff's motion must be denied. Under 29 U.S.C. § 626(d)(2), an ADEA action may not be commenced until 60 days after the filing of a charge with the EEOC, and the EEOC charge in turn must have been filed "within 300 days after the alleged unlawful practice occurred ..." Failure to file a timely charge of age discrimination bars a subsequent action under the ADEA. Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 59 (2d Cir. 1986) ("No civil action based on a claim of age discrimination may be brought in a federal court unless the plaintiff has timely filed his claim with the EEOC").
Plaintiff contends that her proposed claims based on events occurring prior to April 28, 1995 can be asserted on the theory that defendant's alleged actions constituted a continuing violation. Under the continuing-violation exception to the 300-day rule, where discriminatory acts occur pursuant to a continuing practice and policy of discrimination, the limitations period may be delayed until the last discriminatory act in furtherance of the policy. Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985). Where applicable, this rule allows claims of acts of discrimination to be deemed timely even though they would be untimely standing alone. Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994).
There is no simple test for determining whether conduct constitutes a continuing violation. Generally, the "exception applies to cases involving specific discriminatory policies or mechanisms ..." Id.; see, e.g., O'Malley v. GTE Service Corp., 758 F.2d 818 (2d Cir. 1985) (enforcement of discriminatory mandatory retirement system is continuing violation). What is clear, though, is that a number of separate acts of discrimination do not automatically constitute a "continuing" violation. "Multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert, 10 F.3d at 53; see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (discrete incidents of discrimination not related to an identifiable policy or practice do not amount to continuing violation unless they are specifically related and allowed to continue unremedied for so long as to constitute a discriminatory policy or practice).
Plaintiff's allegations in her proposed amended complaint are insufficient to establish a continuing violation. She alleges that in May 1995, her more important job duties were reassigned to other employees (though she does not allege that those employees were younger than she), and that she was left with more "trivial and ministerial" duties. Proposed Amended Complaint P 20. The only other allegation in her proposed new ADEA claim relating to events occurring prior to April 29, 1995, is her allegation that throughout her employment, she was forced to correct errors made by Cairns, and that Batz praised Cairns's work despite plaintiff's complaints. These allegations show nothing more than discrete instances of alleged discrimination, and fall far short of the kind of policy or practice that must be shown to establish a continuing violation. Lightfoot, 110 F.3d at 907; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Evidence relating to these events may perhaps be admissible as background evidence, see United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977); Bouman v. Block, 940 F.2d 1211, 1218 (9th Cir.), cert. denied, 502 U.S. 1005, 116 L. Ed. 2d 658, 112 S. Ct. 640 (1991), but those events themselves cannot form the basis of plaintiff's claim.
I recognize, however, that the original complaint was filed pro se, and that plaintiff may wish to amend her complaint simply for reasons of form or to state her age discrimination claim in greater detail or with more precision. I will therefore grant plaintiff's motion in part, and grant her leave to amend her complaint to restate her claims of age discrimination based upon a theory of disparate treatment, and of retaliation under the ADEA.
Plaintiff's motion to amend her complaint (Item 12) is granted in part and denied in part. Plaintiff's motion is granted only to the extent that she seeks to restate her claim of age discrimination on a theory of disparate treatment under the ADEA, and her existing claim of retaliation under the ADEA, based on events occurring on or after April 28, 1995. Plaintiff shall have fourteen (14) days from the date of entry of this Decision and Order to file an amended complaint. In all other respects, plaintiff's motion is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
August 25, 1997.
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