the matters that had been alleged in the EEOC filing. Butts, 990 F.2d at 1402-1403. If the matters alleged in the federal complaint are reasonably related to what was charged in the EEOC complaint, then the district court has jurisdiction to hear them.
Two of the exceptions or examples discussed by Bustts apply here. First of all, for the reasons discussed infra, it seems evident that the conduct complained of in the federal complaint would have fallen within the ambit of the EEOC investigation prompted by the EEOC charges. Because of the contemporaneous EEOC filings, the disgusting nature of many of the allegations and the charge that the sexual conduct and harassment was continuous and pervasive, it is not unreasonable to conclude that the EEOC investigation would have been quite detailed and thorough concerning all matters relating to the stated EEOC charges. Butts allows for federal court jurisdiction in such circumstances. Butts, 990 F.2d at 1402.
Butts also recognized another instance where matters not specifically mentioned in the EEOC charge could, nonetheless, be heard as a part of a subsequent federal complaint. This further example of when a matter is "reasonably related" to the matters set forth in the EEOC charge applies in the instant case. Where plaintiff alleges in a federal complaint "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge" a federal court retains jurisdiction and may hear the claims. Butts, 990 F.2d at 1402-1403.
In part, that is the nature of plaintiffs' complaint here. For example, Dargento's federal complaint provides more examples of the abusive language allegedly used by LaManna and Fricano. Dargento's failure to list every single verbal assault in her EEOC charge is not fatal to her federal complaint because that conduct clearly falls within the scope of the EEOC investigation which could reasonably be expected to grow out of the original charge of discrimination before the EEOC. Although Dargento includes more details in her federal complaint concerning the alleged retaliatory conduct, the complaint merely flushes out that which was referenced in the EEOC charge. For example, in her federal complaint, Dargento states that in December 1994, she wrote a letter to Janice Cahill of Bally's Human Resources Department, complaining of the harassment and discrimination. Before she sent the letter, she allegedly showed it to LaManna in the hope that they might be able to reach some amicable solution. Dargento contends that LaManna told her that if she ever sent the letter, "he would make sure that she was demoted." (Complaint at p. 16, P 60). Dargento alleges that despite this threat, she sent the letter to Cahill, but her complaint was ignored and she did in fact suffer acts of retaliation by LaManna.
Likewise, Bruno's federal complaint provides more detail about what was raised in the EEOC charge. For example, Bruno provides more detail regarding the buttocks-slapping incident in the federal complaint. In addition, she alleges that the same supervisor who touched her buttocks was later accused by another female employee of rape. Bruno adds in the federal complaint that the offending supervisor was never punished by Bally's; he was simply transferred to another club, which Bruno claims was the standard procedure for dealing with complaints of sexual harassment. Although the federal complaint does provide more detail, it appears that the scope of any EEOC investigation of the "buttocks" incident and the company's response to that incident would have encompassed the entire incident.
Admittedly, some of Bruno's allegations in the federal complaint were never mentioned specifically in the EEOC charge. For example, Bruno contends on one occasion that she complained to LaManna that she did not believe that her immediate supervisor at the time, Robert Miller, was adequately performing his job. She alleges that LaManna sent her a plaque admonishing her that "every time you point a finger, three point back at you," and insisted that the plaque be hung in her office. (Complaint at p. 23, P 91).
Bruno also describes an incident where LaManna yelled at her in his office for approximately six hours because she had called payroll to inquire about a discrepancy in her paycheck. Presumably, these incidents are offered in support of her hostile work environment claim. Because the EEOC charges filed by all plaintiffs paint a picture of a working environment permeated with hostility, both sexual and gender based, it is likely that the EEOC's investigation of the working environment at Bally's would have included the incidents described in Bruno's federal complaint.
In conclusion, I believe that all of the conduct alleged in the federal complaint concerning the Title VII claims is reasonably related to the charges set forth in the EEOC complaints. Therefore, defendants' motion to dismiss the Title VII claims must be denied.
V. Equal Pay Act
In the federal complaint, plaintiffs Dargento and Bruno allege violations of the Equal Pay Act, 29 U.S.C. § 206 et seq. The EEOC charges concerning the alleged denial of equal pay contain only the bare accusation of the claim, however. For example, Dargento's EEOC charge contains only a bare, conclusory allegation, unsupported by any facts, that she was denied "equal pay." Bruno's charge is similar.
Although I recognize that the EEOC investigation prompted by the hostile environment and sexual harassment claims would be broad, I think that an EEOC charge with only the bare assertion that the complainant was denied equal pay is deficient and cannot form the predicate for a later federal complaint. Butts specifically warned that vague, conclusory assertions in an EEOC charge will not be sufficient.
Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII's investigatory and mediation goals would be defeated.
Butts, 990 F.2d at 1403.
Not only are the EEOC charges vague, general and unsupported by any facts, the complaint concerning both Dargento's and Bruno's equal pay claims is equally vague and general concerning the nature of the claimed deprivation of equal pay. Under these circumstances, I am compelled to grant defendants' motion to dismiss the Equal Pay Act claims in the complaint as to both Dargento and Bruno.
VI. Age Discrimination
Plaintiff Kryszak also alleges discrimination on account of age. Kryszak's age discrimination claim must be dismissed for several reasons. First of all, the EEOC charge on this claim is much too vague and general to suffice as a predicate for an age claim in the federal complaint.
Kryszak's EEOC charge does speak principally to sex and gender discrimination and harassment. Although she alludes to a claim for age discrimination, no specifics are given except that she makes one reference to the fact that she was sometimes referred to as "old" or an "old dog." Neither the EEOC charge nor the complaint concerning age discrimination mentions or discusses how Kryszak suffered in her employment on account of age. In fact, in the federal complaint there is no factual discussion at all of her claim concerning age. (Complaint, P 129-151).
One reference in the EEOC charge to being called an "old dog" is not sufficient to set forth an age discrimination claim. One single reference like this is not enough. The EEOC charge filed by Kryszak is much too vague and general under Butts to act as a predicate to a later federal complaint.
Another reason for the dismissal is that plaintiff was not in the protective class (at least 40 years old) when the age-related events occurred. Plaintiff was 40 when the EEOC charge was filed in 1995. She had started her employment with Bally's in 1981, when she was 27. Some of the events that she complains of occurred in 1992 and 1993 when she was 38 and 39 years old. It appears that the matters complained of occurred when she was not in the protected class. This analysis is somewhat difficult because neither the EEOC charge nor the complaint sets forth with any specificity the job related actions that occurred (or failed to occur) on account of her age. Nevertheless, it appears from the nature of her complaint that the matters complained of occurred well before she became 40 and within the protected class. It is true that she was 40 when she left her employment, but it is evident that her leaving was not caused by ageist remarks but by the sexual atmosphere pervading Bally's.
VII. The Timeliness of Plaintiffs' Claims
Defendants contend that much if not all of the conduct set forth in plaintiffs' complaint is barred by the limitations period prescribed by Title VII. See 42 U.S.C. § 2000e-5(e) (plaintiff required to file charge with EEOC within 300 days of the alleged discriminatory acts). Plaintiffs contend, however, that their claims are timely under a continuing violation theory.
As a preliminary matter, I note that as a general rule, the courts of this circuit do not favor continuing violation arguments. See Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). "Indeed, only 'compelling circumstances' will warrant application of the exception to the statute of limitations." Blesedell, 708 F. Supp. at 1415 (citation omitted).
Nonetheless, the Second Circuit has held that "a continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Thus, "where a continuing violation can be shown, the plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period." Id.
All three plaintiffs contend that they were subjected to a hostile work environment due to their sex. By its very nature, a hostile work environment claim "involves an ongoing course of conduct rather than a single discrete act." See Anthony v. County of Sacramento, 898 F. Supp. 1435, 1443 (E.D. Cal. 1995).
Similarly, each plaintiff contends that Bally's maintained policies or practices which discriminated against them on the basis of their sex. These alleged practices included favoring male employees over female employees and engaging in a persistent course of conduct involving sexual harassment. Each of these allegations involve an ongoing course of conduct.
Plaintiffs do have the burden of proof to show a continuing violation to get the claims for discrimination that occurred more than 300 days before the EEOC filings to trial before this Court. At this stage of the litigation it is premature to rule definitively on whether all of plaintiffs' claims are timely or, if not, are covered under the continuing violation theory. At this stage, I cannot say that under no circumstance could plaintiffs establish what is necessary to show a continuous pattern of discrimination. The plaintiffs should be entitled, however, to engage in discovery to develop facts necessary to determine whether these claims are viable. Williams v. Borough of Manhattan Community College, 1995 U.S. Dist. LEXIS 11958, 1995 WL 495499 (S.D.N.Y. August 18, 1995). There has been no discovery in this case. Both sides should have the opportunity through discovery to develop the necessary facts to determine whether there was indeed a pattern of discriminatory conduct or whether the incidents merely involved discreet acts of discrimination.
Because of the nature of plaintiffs' claims and the fact that there has been no discovery, summary judgment on the timeliness issue must be denied. Morgan v. Pitney Bowes, Inc., 1994 U.S. Dist. LEXIS 1273, 1994 WL 30938 (D. Conn., January 26, 1994). There is "sufficient dispute and ambiguity on the facts concerning this issue to defeat a motion for summary judgment." McNeil v. Aguilos, 831 F. Supp. 1079, 1083 (S.D.N.Y. 1993).
Defendants' motion for summary judgment is denied in part and granted in part as follows: Summary judgment is granted in favor of defendants on the Equal Pay Act claims of plaintiffs Dargento and Bruno and summary judgment is also granted in favor of defendants on the Age Discrimination in Employment Act claim of plaintiff Kryszak.
In all other respects, defendants' motion for summary judgment is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
December 11, 1997.