Westminster Bancorp, 921 F. Supp. 168, 171-172 (S.D.N.Y. 1995)(disallowing a Title VII sexual harassment claim based on an EEOC charge of retaliation for opposing sexual harassment). First, the Texaco policies and practices that plaintiff's Title VII complaint alleges constitute sex discrimination were not implemented in retaliation for plaintiff's filing an EEOC charge or otherwise opposing workplace discrimination. The employee performance evaluation system was devised long before plaintiff filed her EEOC charge.
Second, the policies and practices of sex discrimination alleged in Porter's Title VII complaint do not comprise "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Butts, 990 F.2d at 1402-1403. Although plaintiff claimed in her EEOC charge as well as her Title VII complaint that the performance evaluation process is unfair, her explanations for that unfairness differ. In her EEOC affidavit, plaintiff contended that she was given a poor evaluation due to her decision to join the McGowan class action suit. Plaintiff's EEOC charge of age discrimination and retaliation did not allege that the Performance Management Program was unfair to women generally, or even that it was unfair to plaintiff on account of her being a woman, but rather that it was unfair to her because she had taken actions that might have caused her to be viewed as a "troublemaker." In her Title VII complaint, in contrast, plaintiff alleges that the performance evaluation system systematically discriminates on account of sex. Thus, plaintiff's Title VII sex discrimination claim does not refer to acts of discrimination carried out in precisely the same manner as those acts of age discrimination or unlawful retaliation alleged in her EEOC charge.
Third, Porter's Title VII allegations regarding the performance review system would likely not be encompassed by an EEOC investigation into her EEOC charge of unlawful retaliation or age discrimination. Since the claims rely on different facts and embody different legal theories, the facts alleged in Porter's EEOC charge would not prompt an investigation into the facts that underlie her Title VII sex discrimination claim. Because claims of retaliation for filing a complaint of, or otherwise opposing, sex discrimination do not require a meritorious sex discrimination claim, but only a good faith belief in the existence of such a claim, EEOC investigations of retaliation claims generally do not consider the validity of the underlying sex discrimination claim. "An administrative complaint limited exclusively to a claim of retaliation is not likely to trigger an investigation of the underlying discriminatory treatment of which plaintiff complained." Dixit v. City of New York Dep't. of Gen. Serv., 972 F. Supp. 730, 734 (S.D.N.Y. 1997). In Porter's case, in fact, the actual EEOC investigation did not address the merits of any claim, either individual or systemic, of sex discrimination. Thus, plaintiff's EEOC charge of retaliation does not provide a jurisdictional predicate for her assertion of sex discrimination claims in this Title VII suit.
Although plaintiff asserts retaliation claims in both her EEOC charge and her Title VII complaint, the retaliation asserted in her Title VII complaint is not reasonably related to that alleged in the EEOC charge. According to plaintiff, different conduct prompted the retaliation in the two instances. In her EEOC charge, plaintiff contended she was retaliated against because of her 1993 decision to participate in the McGowan suit. In her Title VII complaint, in contrast, plaintiff asserts that she was retaliated against beginning in 1990 after she requested a transfer and, when the transfer was not forthcoming, expressed her opinion that she was being discriminated against on account of sex.
The form of the retaliation alleged by plaintiff in the EEOC charge also differs from that claimed in her Title VII complaint. The EEOC charge identifies the negative performance review in July 1993 as the retaliatory conduct, while in the Title VII complaint the retaliatory conduct spans several years and consists of a variety of actions, including a demotion and limited salary increases, that plaintiff contends foreclosed her career opportunities. Thus, the retaliation complained of in the Title VII complaint is not a continuation of the retaliation alleged in the EEOC charge. See Davis v. City Univ. of New York, 1996 U.S. Dist. LEXIS 6345, 1996 WL 243256, 13 (S.D.N.Y.)(holding that race discrimination claims regarding tenure, promotion, office space, and compensation are not the same as race discrimination claims regarding the securing of research grants, support of research projects, and time release for research studies). Nor are plaintiff's Title VII allegations of retaliation within the likely scope of an investigation based on plaintiff's EEOC charge.
Notwithstanding the requirement that Title VII claims be included within, or reasonably related to, charges filed with the EEOC, plaintiff contends that she should be able to assert her sex discrimination claims in this Title VII action because Texaco had notice of those claims when it received plaintiff's McGowan affidavit, prior to the filing of plaintiff's EEOC charge. The EEOC also received, from Texaco, a copy of plaintiff's McGowan affidavit, albeit subsequent to the filing of plaintiff's EEOC charge. Thus, plaintiff contends, both Texaco and the EEOC had adequate notice of her claims of sex discrimination.
Although the McGowan affidavit may have provided the defendant with timely notice of plaintiff's sex discrimination allegations, it did not provide timely notice to the EEOC, which received the affidavit after the filing of plaintiff's EEOC charge. The primary purpose of the filing requirement is to "notify the EEOC and the defendant of the plaintiff's allegations, thus enabling the EEOC to perform its conciliatory function, which in turn is intended to reduce litigation." Aleszczyk v. Xerox Corp., 1990 U.S. Dist. LEXIS 17921, 1990 WL 251849, 5 (W.D.N.Y.). In this case, even if the defendant was timely notified, the EEOC was not, and thus was not offered an opportunity to mediate plaintiff's sex discrimination claim. The EEOC's investigation encompassed claims of retaliation and age discrimination, but not sex discrimination. The fact that plaintiff's McGowan affidavit was received by the defendant, and later submitted, by the defendant, to the EEOC, does not fulfill the purpose of the filing requirement. See Aleszczyk, 1990 WL 251849 at 5 (not allowing notice to defendant of plaintiffs' planned participation in later decertified class action to satisfy notice requirement of Age Discrimination in Employment Act). Nor does the fact that Porter planned to participate in a class action suit for which she may not have needed to file an EEOC charge obviate the filing requirement with respect to the individual claims of sex discrimination she asserts in this Title VII action. Id.
For the reasons stated above, defendant's motion for summary judgment is granted. Because plaintiff's federal law claims are dismissed before trial, the remaining state law claims should be dismissed as well.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Accordingly, plaintiff's state law claims are dismissed without prejudice.
Barrington D. Parker, Jr.
Dated: White Plains, New York
November 14, 1997