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PORTER v. TEXACO

November 14, 1997

MONA C. PORTER, Individually and on behalf of all others similarly situated, Plaintiff,
v.
TEXACO, INC., a Delaware Corporation, Defendant.



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 Plaintiff Mona C. Porter filed this action, on behalf of herself and on behalf of others similarly situated, against Texaco, Inc., her employer, alleging that Texaco discriminated against her on the basis of sex and unlawfully retaliated against her, in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and the New York Human Rights Law, New York Executive Law § 290 et seq. Plaintiff also asserts a claim of intentional infliction of emotional distress. Defendant moves, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss. On October 29, 1993, plaintiff filed a charge with the EEOC asserting discrimination on the basis of age and asserting retaliation due to her decision to join a Title VII sex discrimination class action suit against Texaco filed by Texaco employee Charlene McGowan. See McGowan v. Texaco, Inc., 1997 U.S. App. LEXIS 6006, Civil Action No. 93-0615 (S.D.N.Y. 1993), aff'd 108 F.3d 1370 (2d Cir. 1997). In support of class certification in the McGowan case, plaintiff, prior to filing her EEOC charge, completed an affidavit detailing the sex discrimination that she believed she had experienced at Texaco. Although the McGowan case was pending when plaintiff filed her EEOC charge, a class was never certified and McGowan's individual claim of sex discrimination claim was later dismissed. Id.

 Plaintiff did not allege sex discrimination in her EEOC charge, yet she now asserts a claim of sex discrimination in this Title VII case. The primary issue on this motion is whether plaintiff is precluded in this action from pursuing claims of sex discrimination that she did not allege in her EEOC charge, due to her expectation of participating in the McGowan suit. For the reasons that follow, we hold that due to plaintiff's failure to file a timely EEOC charge of sex discrimination, this Court lacks jurisdiction to hear plaintiff's Title VII claim of sex discrimination. Accordingly, her sex discrimination and retaliation claims are dismissed. *fn1" Plaintiff's supplemental state law claims are dismissed without prejudice.

 BACKGROUND

 On a Rule 12(b) motion, the court accepts as true the factual allegations in the complaint and supporting documentation. Plaintiff Mona C. Porter began work at Texaco in November 1985 as a financial accountant, a pay grade level 9 position. Between 1985 and 1988 plaintiff received above average performance reviews and advanced in her career. In August 1986, plaintiff was promoted to a pay grade level 10 position and received a 9.7% annual salary increase. Plaintiff received a 20% annual salary increase in 1987, and a 19.2% annual salary increase in 1988, when she was promoted to a pay grade level 12 position. Plaintiff was then advised that due to her recent promotions, she would not be eligible for another promotion during the next 18 months, although she would continue to be eligible for salary increases. During 1989, plaintiff received a 16% annual salary increase.

 In April 1990, plaintiff received her first negative performance review, from Reinhardt and plaintiff's immediate supervisor. Thereafter, plaintiff expressed to Reinhardt her belief that she was being discriminated against because she was a woman who wanted to advance. Plaintiff's subsequent attempts to transfer were unsuccessful, she believed, due to the April 1990 negative performance review and Reinhardt's continuing opposition to her transfer.

 In May 1992, a departmental reorganization eliminated plaintiff's position. The one other woman in plaintiff's 14 person work group was transferred to another department. Plaintiff remained employed by Texaco, but received little work. Although Porter discussed her situation with a representative of the human resources department, she was not reassigned until December 1992, at which time she was placed in the same position she held when she started at Texaco in 1985.

 Plaintiff's salary increases subsequent to the April 1990 negative performance review were not as substantial as those during the 1985 to 1988 period. Plaintiff received a 5% salary increase in 1991, no increase in 1992, a 2.9% increase in 1993, no increase in 1994, a 2.7% increase in 1995, and no increase in 1996.

 On October 29, 1993, plaintiff filed her EEOC charge, asserting age discrimination and retaliation due to her decision to participate in the McGowan Title VII sex discrimination class action suit. In an affidavit attached to her EEOC charge, plaintiff identified the retaliation as a poor interim performance review she had received in July 1993. While plaintiff's EEOC charge and the affidavit plaintiff submitted in connection thereto referred to the McGowan case, neither the charge nor the affidavit contained allegations of sex discrimination. Nor did plaintiff's submissions to the EEOC include a copy of her McGowan affidavit. In her EEOC affidavit, Porter also suggested that the employee performance review system was inappropriate because her review was not conducted at the proper time and because it focused on the duties she actually performed, rather than the duties of the position and title she officially held at the time. Finally, plaintiff stated she believed that the company was eliminating those employees it viewed as "troublemakers."

 By letter dated November 1, 1993, the EEOC informed Texaco of plaintiff's charges of age discrimination and unlawful retaliation. By letter dated September 4, 1996, the EEOC informed plaintiff that it had uncovered no evidence in support of either claim. The EEOC concluded that plaintiff's planned participation in the McGowan suit could not have provoked the retaliation plaintiff identified because Texaco did not learn of plaintiff's planned participation in the suit until August 25, 1993, after the July 28 performance review. Presumably because Porter's EEOC charge alleged retaliation, but not sex discrimination, the EEOC investigation did not encompass or address claims of sex discrimination on behalf of plaintiff. Plaintiff's McGowan affidavit was submitted to the EEOC, by Texaco, subsequent to the filing of the charge, in connection with Texaco's refutation of plaintiff's retaliation claim. The EEOC issued Porter a right to sue letter dated September 9, 1996.

 Plaintiff's Title VII complaint alleges that Texaco's Performance Management Program, which is the employee performance review system, is administered in a manner that unfairly limits the employment opportunities of women. Plaintiff further alleges that Texaco uses the Performance Management Program to retaliate against those women and minorities who complain about discrimination at Texaco. Plaintiff contends that the employee review system was used to frustrate her career ambitions, to deny her opportunities for challenging work, and to limit her salary. In ...


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