test -- centralized control of labor relations -- noting that the plaintiff "was herself hired" by the parent's vice president of human resources and "was fired directly" by an employee paid by the parent. Id. Finally, the court noted that the companies "maintained a common management structure," whereby the parent's president "operated out of" the subsidiary's office.
Here, Sharkey alleges that Ultramar and Ultramar Energy were "part of an international conglomerate of corporations, formerly known as the Ultramar Group." See Sharkey Aff. P 2. Sharkey also alleges that the operations of Ultramar Energy . . . were . . . coordinated by [Lasmo] which had been designated by Lasmo plc as the entity responsible for managing [all] the North American oil business subsidiaries of Ultramar plc." Sharkey Aff. P 5. Sharkey further alleges that his job offer was made "specifically in furtherance of [Lasmo's] assigned task since, by hiring officers [such as Sharkey] who would maintain the continuity of the oil trading and supply functions associated with the refining operations, [Lasmo] would make the entity more attractive to potential purchasers. . . ." Pl.'s Mem. at 11; Sharkey Aff. P 7. The evidence further suggests that Ultramar continued to be a "shell corporation" controlled by Lasmo or Lasmo plc from June to July 1992, at which time Ultramar became a separate and independent corporation. See, e.g., Pickerill Aff. P 3. Plaintiff met with Guarino in June 1992 to discuss the offer. At the time of the offer, Ultramar was an inactive corporation with no independent operations, offices or management. Its only employees were officers of Lasmo, paid by Lasmo. See Sharkey Aff. P 15 n.4.
In light of the foregoing, we believe that there exists enough evidence to suggest that Lasmo and Ultramar constituted a single employer at the time Guarino discussed the offer with Sharkey. There is little question that either Lasmo or Lasmo plc controlled the "day to day functioning" of Ultramar until July 1992 and that there was an absence of an arms' length relationship between the companies. See, e.g., Guarino Dep. at 47, 52, 56-57. Furthermore, the evidence suggests that Ultramar was initially created by Lasmo as a vehicle through which Lasmo plc could consolidate and/or divest itself of its North American oil holdings. If Lasmo had been specifically delegated the responsibility of organizing Ultramar's oil trading and supply functions, and Sharkey had been intended to work in that area, the evidence would suggest that Guarino may have sufficiently assisted in the making of the offer. Under Arrowsmith, liability would not depend on whether Lasmo had the final say in the hiring decision, but rather, whether the input of Guarino, or any other Lasmo employee, was "sufficient and necessary to the total employment process." 69 F.3d at 1240. As previously stated, we have determined that Guarino was also involved with transmitting the offers to McAward and Kuzmin, and that Guarino was using his Tarrytown office as General Counsel to both companies. Accord Hamilton v. New York State Dept. of Mental Hygiene, 876 F. Supp. 470, 474 (W.D.N.Y. 1994) ("Those who are responsible for making and or contributing to employment decisions for the defendant employer may be liable as agents . . . under the ADEA."). Cf. Dewey v. PIT Telecom Netherlands, U.S. Inc., 1995 U.S. Dist. LEXIS 10028, No. 94 Civ. 5983, 1995 WL 425005, at *2 (S.D.N.Y. 1995), aff'd, 101 F.3d 1392 (2d Cir. 1996) (declining to find integrated enterprise where plaintiff alleged that parent had been "immediately informed" of subsidiary's decision to fire her). See also Ward v. Gordon, 999 F.2d 1399 (9th Cir. 1993) (where military officer was "borrowed servant" to private hospital, he remained servant to the government, because service at hospital furthered rather than compromised interests of both).
Because we find that there exists sufficient evidence to raise a material question of fact regarding whether Guarino discussed the offer in the scope of his employment with Lasmo or was acting as Lasmo's or Ultramar's agent, while Ultramar was under Lasmo's control, we cannot grant summary judgment to Lasmo.
III. Other Available Positions
In addition to claiming that the offer to work in Canada was discriminatory, Sharkey alleges that he was denied other positions with the Lasmo companies, because of his age. See Cplt. P 18; Pl.'s Mem. at 18-19. In its reply, Lasmo, apparently for the first time, argues that we should not consider this claim, because Sharkey failed to raise it in his EEOC charge, and that even if he did state the claim in the charge, it was barred by the statute of limitations.
We need not consider whether Sharkey raised this claim in his EEOC charge, because we conclude that it was barred by the statute of limitations when Sharkey filed the charge. As a general matter, we will not consider allegations of discrimination which are for the first time raised in court, because they have not been timely filed with the EEOC. See Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). In order for us to hear a claim of discrimination, the claim must have been included in a timely filed charge, or be reasonably related to that charge. Id. at 1401-03. Otherwise, plaintiff must "'bear [the] heavy burden [of] establishing that equitable principles should permit the procedural requirements . . . to be bypassed. . . .'" Hourahan v. Ecuadorian Line, Inc., 1996 U.S. Dist. LEXIS 19435, No. 95 Civ. 10698, 1997 WL 2518, at *5 (S.D.N.Y. Jan. 3, 1997) (citation omitted). See also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (the "filing [of] a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like the statute of limitations, is subject to waiver, estoppel, and equitable tolling"). "In states . . . that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitation for filing a charge of discrimination is 300 days." Butts, 990 F.2d at 1401. Therefore, Sharkey's allegation that he was not offered positions on account of his age, is barred if it was not administratively filed within the limitation period. See Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992); Samuel v. Merrill Lynch Pierce Fenner & Smith, 771 F. Supp. 47, 48 (S.D.N.Y. 1991).
"When a plaintiff experiences a 'continuous practice and policy of discrimination,' however, 'the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.'" Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (citations omitted). The Court of Appeals has held that "a continuing violation may be found where there is proof of specific ongoing discriminatory polices or practices, or where specific and related instances of discrimination are permitted . . . to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell, 23 F.3d at 704. Discrete incidents of discrimination that are not related to such policies or practices, however, do not amount to a continuing violation. Id. (citing Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993)). Moreover, "to benefit from the continuing violation doctrine, a plaintiff must clearly assert the continuing violation both in the EEOC filing and in the complaint." Brown v. City of New York, 869 F. Supp. 158, 168-69 (S.D.N.Y. 1994) (citing Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 646 (2d Cir. 1985)).
In the case at bar, Sharkey filed an EEOC charge on or about April 19, 1993, at which time he claimed that Roger Rawstron, a "new hire," was given a job that was never offered to Sharkey. Rawstron was hired on or before May 11, 1992, more than 300 days before Sharkey brought the charge. While Sharkey suggests that he was denied similar positions during the limitations period, he cites no specific job opportunities -- other than Rawstron's --that he was denied. Thus, Lasmo argues that Sharkey's additional claims are time-barred. Sharkey attempts to circumvent the statute of limitations by claiming that his additional allegations amount to a "continuing violation." Surreply at 2. Relying on authority from other circuits, Sharkey contends that the allegations regarding the Rawstron offer are actionable, even though they were not stated in the formal charge, because Lasmo's "failure to consider him for the Rawstron [sic] position . . . was part of a series of acts . . . closely related in time, involving the same time of discriminatory conduct -- defendant's (alleged) refusal to offer plaintiff an appropriate position in its work force because of his age." Surreply at 2.
Before considering his argument, we note that Sharkey's "omission of Second Circuit authority is telling." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). It has been uniformly recognized that courts in this circuit disfavor application of the continuing violation doctrine. E.g., Bawa v. Brookhaven Nat'l Lab. Assoc. Univ., Inc., 968 F. Supp. 865, 868 (E.D.N.Y. 1997); Samimy v. Cornell Univ., 961 F. Supp. 489, 494 (W.D.N.Y. 1997); Lloyd v. WABC TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995); Blesedell, 708 F. Supp. at 1415; Bradley v. Consolidated Edison Co., 657 F. Supp. 197, 204 (S.D.N.Y. 1987); McPartland v. Am. Broadcasting Companies, Inc., 623 F. Supp. 1334, 1338 (S.D.N.Y. 1995). "Indeed, only 'compelling circumstances' will warrant [use] of this exception to the statute of limitations." Blesedell, 708 F. Supp. at 1415 (citing La Beach v. Nestle Co., Inc., 658 F. Supp. 676, 687 (S.D.N.Y. 1987)). Moreover, the Court of Appeals has recently suggested that a finding of "compelling circumstances" may be limited to situations in which the effect of the alleged discrimination will likely be felt only at a later date. See Pollis v. New School for Social Research, 132 F.3d 115, 1997 WL 781055, at *2-3 (2d Cir. 1997). According to the Court, such circumstances justify a remedy for discrimination occurring prior to the limitations period, because claimants tend to bring charges only after a harm occurs. See id. at *2-3 (determining that doctrine did not apply to claim alleging discriminatory pay scale, because if plaintiff were paid less due to her sex, effect would be "immediate").
In this case, Sharkey did not allege a "continuing violation" when he filed his EEOC charge, nor when he completed his Intake Questionnaire. See Sharkey Aff. Ex. D, E. He may not rely on this doctrine to avoid the statute of limitations, simply by alleging a continuing violation in his complaint. See Pan Am. World Airways, 771 F.2d at 646. This aside, we note that Sharkey has not even alleged a continuing violation in the Complaint; he appears to have raised the issue for the first time in response to Lasmo's motion. Even in these papers, Sharkey does not "clearly" set forth the claim. He merely asserts that Lasmo's "failure to consider him for the Ralstron [sic] position . . . was part of a series of acts . . . closely related in time, involving the same time of discriminatory conduct -- defendant's (alleged) refusal to offer plaintiff an appropriate position in its work force because of his age." Surreply at 2. This allegation, while supported by affidavit, is vague and conclusory, because Sharkey has failed to cite any other offers not extended to him. See Butts, 990 F.2d at 1403; Cohn v. New York City Dep't of Parks, 1996 U.S. Dist. LEXIS 11394, No. 91 Civ. 6943, 1996 WL 449539, at *7 (S.D.N.Y. Aug. 9, 1996), aff'd, 112 F.3d 503 (2d Cir. 1997); Lloyd, 879 F. Supp. at 400. While Sharkey attaches a copy of a memorandum stating that positions would be filled "on the basis of 'best person for the job,' . . . from the existing LASMO [and] Ultramar populations." However, this policy certainly does not imply that there will be discrimination on the basis of age or any other impermissible factor. Quite the opposite, it suggests employment on the basis of merit alone. See Sharkey Aff. Ex. F (alteration in original). Compare Brown v. Time, Inc., 1997 U.S. Dist. LEXIS 6227, No. 95 Civ. 10081, 1997 WL 231143, at *4 (S.D.N.Y. May 7, 1997) (newsletter circulated by chairman stating need to "make staff diversity a reality [by] . . . promoting minorities" insufficient to show policy favoring African-Americans) with Cornwell, 23 F.3d at 704 (finding specifically that employer's personnel policies discriminated against women) and EEOC v. Cushman & Wakefield, Inc., 643 F. Supp. 209, (S.D.N.Y. 1986) (testimony established nine of thirteen women who took maternity leave pursuant to policy were terminated, including plaintiff). Because Sharkey has not stated a continuing violation in the pleadings nor in the charge, see Sharkey Aff. Ex. E-F, the continuing violation doctrine does not apply. Accord Bawa, 968 F. Supp. at 868 (dismissing pre-limitation period claims, where plaintiff "did not clearly state continuing violation by marking the 'Continuing Action' box on the Charge" and neglected to raise issue in complaint). Cf. Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31-32 (S.D.N.Y. 1994), aff'd, 50 F.3d 3 (2d Cir. 1995) (plaintiff failed to allege continuing violation where charge stated she was denied promotion; "fact that the 'Continuing Action' box was checked . . . not dispositive"). We therefore dismiss the remainder of Sharkey's claims.
Based on the foregoing, we deny defendant Lasmo's motion for summary judgment with respect to plaintiff's claim that he was offered less favorable employment on account of his age. We grant Lasmo's motion to the extent that plaintiff claims he was denied other employment opportunities, including the Rawstron position, and therefore dismiss the claims alleged in paragraph 19 of the Complaint.
Dated: White Plains, New York
January 21, 1998
William C. Conner
Senior United States District Judge