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December 11, 1997

DANA SHERRY DARGENTO, et al, Plaintiffs,

The opinion of the court was delivered by: LARIMER

 Plaintiffs Dana Sherry Dargento ("Dargento"), Bonnie Jean Bruno ("Bruno") and Susan L. Kryszak ("Kryszak") contend that they were victims of unlawful employment practices during their employment with defendant Bally's Holiday Fitness Centers ("Bally's"). *fn1" Plaintiffs worked in various Bally's clubs in Rochester and Buffalo. All three contend that they were subjected to discrimination based on sex, were denied equal pay, were subjected to a hostile work environment, were retaliated against for complaining about the discriminatory practices, and were ultimately constructively discharged. Kryszak also contends that she was subjected to discrimination due to her age. Plaintiffs contend that they were harassed by several co-employees; however, the primary offenders were two managers, Michael LaManna ("LaManna") and Patrick Fricano ("Fricano").

 Dargento, Bruno and Kryszak each filed charges with the Equal Employment Opportunity Commission ("EEOC") in July 1995. This action was filed on February 28, 1996, after each plaintiff received a "Right To Sue" from the EEOC. Plaintiffs' federal complaint alleges violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., the Equal Pay Act, 29 U.S.C. § 206, et. seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et. seq., and Article 15 of the New York Executive Law, § 296. *fn2"

 On November 19, 1996, plaintiffs moved to amend their complaint to add New York State as a party plaintiff. On January 17, 1997, defendants moved: for judgment on the pleadings pursuant to the Federal Rules of Civil Procedure, Rule 12 (c) and to stay resolution of plaintiffs' motion to amend. *fn3" Following oral argument on May 16, 1997, this Court dismissed plaintiffs' Title VII and Age Discrimination in Employment Act ("ADEA") claims against the individual defendants and directed that the claims proceed against the employer, the corporate defendant. Defendants' motion for judgment on the pleadings was converted to a motion for summary judgment pursuant to Rule 56.

 For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part.


 I. Summary Judgment Standards

 Summary judgment may not be granted unless there is no disputed material issue of fact and judgment in favor of the moving party is appropriate as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Gallo v. Prudential Residential Services Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). Once the moving party has carried its burden to demonstrate that there is no evidence to support the nonmoving party's case, the nonmoving party must come forward, and by "affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,'" identify specific facts demonstrating the existence of a genuine issue for trial. Celotex, 477 U.S. at 324-25. Any "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the [nonmoving] party" and any admissible facts asserted by the nonmoving party that are uncontroverted must be regarded as true. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)).

 The Second Circuit has cautioned that special care should be taken when entertaining motions for summary judgment in discrimination cases where, as here, the employer's intent is at issue. Gallo, 22 F.3d at 1224. The rationale underlying this admonition is that direct evidence of intentional discrimination is rare and plaintiffs are more often forced to prove their case by circumstantial evidence. Id. Thus, "the trial court's task at . . . [this] stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Id.

 II. Contentions of the Parties

 Defendants move to dismiss plaintiffs' federal complaint based on several alleged deficiencies in plaintiffs' EEOC filings and because much of the offensive conduct is barred by the limitations periods prescribed by Title VII.

 As a general rule, "[a] district court only has jurisdiction to hear Title VII claims that are either included in an EEOC charge or 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 Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citations omitted). As the Butts court noted, the "exhaustion requirement is an essential element of Title VII's statutory scheme." Id. Its purpose is to "encourage settlement of discrimination disputes through conciliation and voluntary compliance." Id.; see also Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985).

 Defendants principally challenge the EEOC filings in two ways. First, defendants contend that the federal complaint lists claims not adequately set forth in the EEOC charges. Defendants assert that claims allegedly raised for the first time in the federal complaint must be dismissed. Second, defendants suggest that the EEOC charges as filed are much too vague and general to serve as predicates for allegations in the federal complaint.

 Concerning the limitations issue, defendants contend that plaintiffs failed to file their EEOC charges within the required 300-day-time period set forth in 42 U.S.C. § 2000e-5(e). Plaintiffs concede that some acts did occur outside the required time-frame but contend that their claims are based on continuing and repetitive conduct by defendants and, therefore, the filings are timely under the well-recognized continuing violation principle.

 III. Scope of Plaintiffs' EEOC Charges Concerning Sexual Discrimination, Hostile Work Environment and Retaliation.

 The general rule that a district court only has jurisdiction to hear Title VII claims that were included in an EEOC charge is well-recognized. The statutory framework requires EEOC filings, in part to encourage resolution of these disputes between the employer and the employee through the conciliation process attendant to the EEOC investigation. The EEOC filing requirement is not meant to be a rigid, technical one; such an interpretation would defeat the broad, remedial purpose of the anti-discrimination statutes. The question presented here, as is often the case, is whether the matters set forth in the federal complaint are reasonably related to those claims raised in the EEOC charge.

 The Second Circuit has identified several situations where claims not alleged specifically in an EEOC charge are deemed to be sufficiently "related" to that charge to allow the district court to hear them. Butts, 990 F.2d at 1402-1403. In the first situation, the Second Circuit allows claims to be brought in a civil action "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. at 1402 (citations omitted).

 The Second Circuit has recognized another exception to the EEOC filing requirement. The district court may hear claims of discrimination not alleged in the EEOC charge where the alleged incidents of discrimination were "carried out in precisely the same manner alleged in the EEOC charge." Id. at 1403. Here, the relevant inquiry is "whether 'the EEOC would have had the opportunity to investigate, if not the particular discriminatory incident, the method of discrimination manifested in prior charged incidents.'" Alfano v. Costello, 940 F. Supp. 459, 469 (N.D.N.Y. 1996) (quoting Butts, 990 F.2d at 1403).

 Plaintiffs all allege in their EEOC charges several different actions which they contend violate the anti-discrimination provisions of Title VII of the Civil Rights Act. All three plaintiffs allege that they were subjected to "sexual harassment and sexual discrimination" to such an extent as to create a hostile work environment. They also claim that they, and other women, were denied employment opportunities and promotions because of their gender. In addition, plaintiffs contend that they were retaliated against after complaining about the sexual harassment and deprivation of benefits and that their situation became so intolerable that they were all forced to leave their employment and were, therefore, constructively discharged.

 The EEOC charges filed by the three plaintiffs are strikingly similar and appear to have been prepared with the assistance of counsel. Although all three charges tend to be phrased in general terms, I believe that, in the context of these cases, the EEOC filings are sufficiently precise to alert both the employer and the EEOC to the nature of the complained of matters.

 The EEOC charges state quite clearly the nature of the sexual harassment and humiliation suffered and each plaintiff references certain specific examples of offensive conduct. The gist of the EEOC charges is that there was a pervasive, continuing atmosphere of sexual misconduct by Bally's managers, specifically LaManna and Fricano.

 There was little mystery as to the nature of the plaintiffs' charges and each charge set forth some very graphic instances of reprehensible conduct by defendant's managers. For example, plaintiff Dargento, in addition to her general allegations, sets forth several specific instances of discriminatory conduct. She stated that she was subjected to constant verbal attacks based on her gender, such as "you suck; all women suck," and "you are too emotional." (Dargento EEOC Charge at p. 3, P 7). Fricano allegedly demanded that she either work longer hours or be demoted, and commented that "it was your choice to get married" and "you are probably going to have a kid soon anyway." (Dargento EEOC Charge at p. 3, P 7). In addition, Dargento cites an incident where she personally was a victim of offensive sexual harassment. She contends that she was degraded and humiliated when she walked into a staff meeting and found a picture of her face pasted on a nude centerfold (performing oral sex) which had been placed on the wall of the meeting room. (Dargento EEOC Charge at p. 4, P 8).

 Dargento contended that all of the practices described by her were tolerated, encouraged or perpetrated by supervisors at Bally's, including LaManna and Fricano. She also contended that she reported her complaints and concerns to a specific individual in the Human Resources Department at Bally's, but her complaints were either ignored, or minimized, and that no ...

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