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COOPER v. XEROX CORP.

February 5, 1998

ANTHONY COOPER, Plaintiff,
v.
XEROX CORPORATION, Defendant.



The opinion of the court was delivered by: LARIMER

 This is a discrimination case. Plaintiff Anthony Cooper, who is African-American, asserts that his former employer, Xerox Corporation, unlawfully discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.) and the New York Human Rights Law (Executive Law § 296). Before me is Xerox' motion for partial summary judgment. For the reasons stated below the motion is granted in part and denied in part.

 BACKGROUND

 Cooper was employed by Xerox from 1987 until his termination in April 1994. He was a union member and worked as an Assembler/Tester on the "pack line" for the Xerox 5090 copy machine. Starting during the summer of 1993 his immediate supervisor on the pack line was Crystal Martin. William LeBerth was the lead supervisor for all 5090 product lines.

 In February 1994 Cooper began suffering wrist pain. He was diagnosed as having carpal tunnel syndrome and was absent from his job on disability leave from February 22, 1994 until April 4, 1994. When he returned, he was assigned to work on the 5090 "finishing line" instead of his usual assignment on the pack line.

 Cooper, however, did not want to work on the finishing line. He complained to plant manager Kenneth Vlach that the reassignment was racially motivated. Vlach agreed to investigate Cooper's concerns. *fn1"

 At a meeting in Vlach's office on Thursday April 21, 1994, Cooper was told by Vlach that he (Vlach) had found no evidence that the reassignment was racially motivated. Rather, Vlach had determined that William LeBerth reassigned Cooper to the finishing line because at the time Cooper returned from disability leave, the finishing line was understaffed while the pack line had enough workers. Such reassignment was authorized by Xerox' contract with the union because it involved no change in job classification, product line, wage rate, or shift. Other managers were present at this meeting including Bettina Higgins Engelmann, Cooper's immediate supervisor on the finishing line; William LeBerth; and Al Gallina, the building's Industrial Relations Representative.

 The next day, a Friday, Cooper was absent. As a union member, Cooper was a participant in a program called the "Absenteeism Control Program", pursuant to which a union member with four unexplained absences over a one-year period would be terminated. Cooper's absence on Friday was his third relevant absence.

 The following Monday, April 25th, Cooper came to work and told both Engelmann and Gallina that he intended to leave work after his lunch break. *fn2" Each reminded him that this would constitute his fourth absence and would result in his termination. Before leaving the plant, Cooper also met with Xerox' Manager of Industrial Relations, William Roscoe. Cooper told both Gallina and Roscoe to proceed with the steps required for his termination. Cooper left work as promised, and he was immediately terminated.

 On June 22, 1994, Cooper filed an administrative charge with the New York State Division of Human Rights in which he alleged that his reassignment to the finishing line and his discharge were the result of race discrimination and that white employees in similar circumstances did not receive the same treatment. On November 17, 1994, the EEOC issued its Right to Sue letter. On that same day, Cooper had filed an amendment to the charge, alleging the existence of racial slurs directed at him and racial epithets written on the bathroom walls. There is no evidence, however, that the EEOC re-opened its investigation and/or that a second Right to Sue letter was issued relative to the claims asserted in Cooper's amendment.

 This lawsuit was initiated February 9, 1995, and an amended complaint was filed on October 16, 1996. In his amended complaint Cooper sets forth four causes of action: a "hostile working environment" claim, a retaliation claim, and an "employer liability" claim *fn3" (all brought pursuant to Title VII), and a fourth claim, entitled "state law claim" (brought pursuant to New York's Human Rights Law).

 XEROX' MOTION

 Xerox moves for partial summary judgment, seeking to dismiss Cooper's first two causes of action, the hostile environment claim and the retaliation claim, on procedural grounds. *fn4" Xerox asserts that neither claim is within the scope of Cooper's administrative charge and, thus, this Court lacks jurisdiction over them.

 A district court may hear only Title VII claims that are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is "reasonably related" to those alleged in the EEOC charge. See Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). "This exhaustion requirement is an essential element of Title VII's statutory scheme." Id. "'The purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC.'" Id. (citations omitted).

 The Second Circuit has designated three circumstances in which claims that were "not alleged in an EEOC charge are sufficiently related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action." Id. at 1402. Of the three circumstances only one applies here and that is essentially an allowance of "loose pleadings," based upon the recognition that many claimants are unrepresented at the time that they file their administrative charge and, thus, their failure to properly articulate all relevant theories of liability should not be fatal to their later pursuit of federal claims. Thus, claims not included in the EEOC charge may still be pressed in federal court when "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. (citations omitted); see also Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992)(the district court should look "not merely to the four comers of the often inarticulately framed charge," but must consider the possible scope of any investigation "which can reasonably be expected to grow out of the charge of discrimination.")(citations omitted).

 However, the loose pleading allowance is not satisfied by vague, generalized statements. Specific factual allegations must be made in order for the EEOC to be able to investigate them reasonably. "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 ...


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