The opinion of the court was delivered by: SWEET
Defendants Union Food and Commercial Workers International Union (the "International") and United Foods and Commercial Workers Union Local 888 ("Local 888") (collectively, the "Unions") have moved for dismissal of plaintiff Magdalene Nweke's ("Nweke") complaint as to the claims against them pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, pursuant to Rule 12(b)(6) for failure to state a cause of action, and for summary judgment pursuant to Rule 56. Specifically, (1) the Unions have moved to dismiss for lack of subject matter jurisdiction certain allegations of violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000(e) et seq. ("Title VII"), and the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., that were not included in the charges Nweke filed with the Equal Employment Opportunity Commission (the "EEOC"), as well as the pendent state law claims; (2) they have moved to dismiss pursuant to 12(b)(6) certain allegations barred by the statute of limitations and the conspiracy claim for failure to be pleaded with particularity; and (3) the Unions have moved for summary judgment with respect to the discrimination claims under Title VII, 42 U.S.C. § 1981, and the ADA claims, as well as the claims alleging that the Unions breached their duty of fair representation owed to Nweke.
For the reasons set forth below, the Unions' individual motions are granted in part and denied in part. Ultimately, however, the Unions' motion for summary judgment is granted and the complaint is dismissed.
Nweke, an individual residing in New York, New York, was previously employed by The Prudential Insurance Company of America ("Prudential"), a Delaware corporation authorized to do business in the State of New York.
The International is a labor organization representing employees in an industry affecting commerce. It maintains its principal offices in Washington, D.C.
Local 888 is a labor organization representing employees in an industry affecting commerce and maintains its principal offices in Mount Vernon, New York. It was at all relevant times to this action the International's collective bargaining agent or representative with respect to the International's collective bargaining units located in the State of New York. Local 888 was at all relevant times affiliated with, controlled, and managed by the International. The International and Local 888 were at all relevant times the recognized exclusive collective bargaining representatives of the bargaining unit consisting of all district agents employed by Prudential within the State of New York.
Nweke filed her complaint against Prudential and the Unions on December 10, 1996 (the "Complaint"), alleging race, sex, and disability discrimination pursuant to Title VII, 42 U.S.C. § 1981, the ADA, the New York State Human Rights Law (the "NYHRL"), Executive Law § 269 et seq., and the New York City Civil Rights Law (the "NYCCRL"). A stipulation and order of dismissal as to Prudential was entered into on January 21, 1998. The Unions filed the instant motion on March 16, 1998, and it was deemed fully submitted, without oral argument, on July 29, 1998.
Nweke is a black female who was employed by Prudential as an insurance agent from March 1989 through March 24, 1995, when she was discharged. Nweke worked at the Sheepshead Bay district throughout her employment with Prudential. During Nweke's employment, the International was her exclusive collective bargaining representative and a party to successive collective bargaining agreements ("CBA") with Prudential. The CBAs governed many of the terms and conditions of employment of the insurance agents. Nweke was a member of Local 888, an affiliated local union of the International which represents employees in New York. Local 888 administered the CBA at the local level for the International.
The constitution of the International, which also governs Local 888, the bylaws of Local 888, and the CBAs require the Unions not to discriminate against its members on the grounds of disability, sex, and race.
In May 1993, Nweke notified her sales manager, John Zaia ("Zaia"), and the district manager, Raymond Martinez ("Martinez"), that she was pregnant. On July 23, 1993, Nweke was placed on short-term disability leave ("STD") or maternity leave from work. According to Nweke, prior to the time she notified Zaia and Martinez that she was pregnant, she had a cordial relationship with them. Nonetheless, asserts Nweke, Zaia and Martinez became hostile toward her upon learning of her pregnancy by avoiding her and ridiculing her for being pregnant.
Prudential's disability unit required Nweke to work in January 1994 because additional benefits had not been approved to enable her to continue her leave. Nweke returned to work for three days on January 21 through January 24, 1994, and then resumed her disability leave. Nweke contends that she went back on disability leave because she was unable to concentrate, think clearly, make telephone calls, read, or talk to anyone in the office. She states that Prudential treated her absence as an unauthorized leave of absence and punished her by generating payroll checks with negative balances for her, instead of checks for disability benefits, and refused to release her wage and income statement.
In May 1993, prior to taking her initial leave of absence, Nweke began seeing a psychiatrist. She did not disclose to Prudential or the Unions that she was seeing a doctor. On July 26, 1993, shortly after her leave began, Nweke wrote a letter to Zaia that her pregnancy was neither a mental illness nor a state of ill health. In the same letter, Nweke wrote that she was not incapable of functioning due to her health. In a letter to Zaia dated July 31, 1993, Nweke stated, "this is just maternity leave." While on leave, Nweke gave birth to a child on October 1, 1993.
Following the delivery of her baby, Nweke was diagnosed with acute bilateral arthralgia of both hands and wrists by Dr. V. A. Paignajen. During the same period, she was also diagnosed with neurotic depression and postpartum depression by Dr. Ewa, a psychiatrist who treated her with individual psychotherapy. Additionally, Nweke was treated by Dr. Lawrence C. Miller, a psychiatrist, who diagnosed her with major depression on December 24, 1994, and placed her on Prozac.
Nweke's leave ended March 1, 1994, and following her doctors' recommendations, she returned to work March 2, 1994. In a March 3, 1994 letter to Martinez, Nweke principally complained about her failure to get proper disability compensation and returned four checks which she stated were for incorrect amounts. She also wrote that she was not at liberty to discuss her medical condition because of her privacy concerns. According to Nweke, on her return to work, her job condition changed for the worse. She was forced to work under Madelyn Harte ("Harte"). Nweke describes Harte as an inexperienced agent who was promoted over Nweke from the position of an agent to sales manager in the same week that Nweke returned to work. When Nweke questioned why Harte was promoted before she was and why she had to work under Harte, Martinez stated that Harte would not leave him to go and have a child since Harte had passed the child-bearing age. Nweke submits that Martinez stated to her that she chose a baby over her career.
According to Nweke, she telephoned John Provenzano ("Provenzano"), then Director of Insurance for Local 888, in December 1993, January and March 1994, and left messages regarding the problems she was having at Prudential, but that Provenzano did not return her calls. Three weeks following her return to work, by letter dated March 23, 1994, Nweke wrote to Provenzano, stating that "I had a baby. The pregnancy was difficult and I was sick. After the baby, she was sick and I was sick." She enclosed with the March 23 letter "copies of my doctors statements for the period of absence in question." A January 31, 1994, doctor's statement signed by Dr. Ewa recommended that Nweke return to work on short hours. A February 15, 1994, doctor's statement signed by Dr. Miller released Nweke to return to full-time duty effective March 2, 1994. Nweke complained in the letter that her working conditions were intolerable because of increased oversight by Harte and because she had not received any paychecks as of that time. Nweke did not provide Provenzano or any other representative of the Unions with medical documentation of her condition following her return to work. Nweke admits that from April 1994 to the end of the year, she did not have any doctors' statements or other records in her possession indicating that she was continuing to see a psychiatrist during that period. Nweke asserts that following the sending of the return to work certificates on March 23, 1994, she did not provide the Union representative with any doctors' statements about her condition in 1994. Nor did Nweke provide any medical statements about her condition in 1995. Nweke stated that she does not recall whether she was mentally disabled or still seeing a psychiatrist and that it is possible that she never told Provenzano.
During a telephone conversation Nweke had had with Provenzano prior to sending the letter of March 23, Nweke informed him that she had not been paid her disability benefits for the period January 25, 1994, through March 2, 1994; that she was not paid readjustment salary for a period of six weeks from March 2, 1994; that her agency was vandalized while she was on maternity leave; and that some policies and commission credits existing therein were given to other agents.
As to these assertions, during the time that Nweke was on STD, Prudential's policy regarding disability leave was that when an agent is on STD the agent's agency is "frozen." The sales manager of the agent becomes responsible for the day-to-day management or control of the agency. When Nweke was on STD, Zaia was responsible for the day-to-day management of her agency, including but not limited to the servicing and conservation of all the business in the agency. Also, in accordance with the CBA, Prudential is required to preserve the agency intact for the agent and to reinstate the agent to that agency upon his or her return to work. At Prudential, an insurance policy is considered lapsed if premium for the policy is not received by Prudential after thirty-one days from the date such premium is due. Pursuant to the CBA, an agent who produced or wrote an insurance policy continues to retain his or her commission interest in the policy if the policy lapses in the first policy year and an application for reinstatement of the policy is made within three months from the date premiums were last paid on the policy. The CBA provides that if Prudential does not receive premiums for the first four months of an insurance policy, all annualized commission previously credited to the producing agent are charged back or withdrawn.
According to Nweke, less than ten weeks after she went on STD, more than fifteen policies in her agency were transferred or reinstated to other Prudential agents for servicing. Those agents were also credited with the commissions from the policies. Also, within the same period, claims Nweke, Prudential charged back or withdrew all annualized commission previously credited to Nweke for those policies that were transferred or reinstated to other agents.
Regarding the conversation with Provenzano, Nweke asserts that she informed him that she was sick from depression and acute bilateral arthralgia on both wrists and was undergoing continuing psychotherapy and taking Prozac for depression, and that one of her doctors had recommended working short hours and that she requested an accommodation for his disability by performing only fifty percent of her usual agency duties. Nweke also told Provenzano that Martinez was putting pressure on her and harassing her, destabilizing and punishing her for having a baby by making her work under the constant supervision of a junior agent, by asking if she has made arrangement for babysitting, by telling her that she chose to have a baby in preference to her career, and by asking her not to make a deposit unless it is countersigned by Harte. Nweke describes the hostile environment in 1994 upon her return to work as having to go to meetings to get assistance and approval for applications even though she was a veteran agent with more experience than Harte who replaced Zaia as her sales manager.
Nweke represents that she also told Provenzano that three magazines with black women on the covers were placed on her desk. Nweke did not see who put the magazines on her desk. She claims that other than the magazines, she has no basis for her allegations of race discrimination. Nweke asserts that she did not tell Provenzano or any other Union representative any other information that would put the Unions on notice that Prudential was trying to terminate her on the basis of her race.
Nweke did not tell Provenzano that she was unable to do her job when she returned to work in March 1994, and she did not request that she be placed on short hours and be given any other accommodation concerning her work.
During that telephone conversation, Nweke contends that Provenzano told her that the CBA between the International and Prudential covers specific matters which do not include discrimination; that he will help Nweke file a grievance regarding her disability benefits, readjustment salary, and the policies and commission credits that were taken from her agency. There is dispute as to whether Nweke indeed informed Provenzano of the comments Martinez made regarding Nweke's pregnancy or choice to have a baby. Nweke urges that her complaints of sex and disability discrimination and harassment by Martinez were not included in her 1994 grievance because the Unions did not want to confront or antagonize management and because Provenzano told her that the CBA covers labor matters and not issues of discrimination.
On March 21, 1994, Nweke received a letter from Prudential Vice President, Regional Marketing, Gary Russo ("Russo"), placing her on low production probation ("LPP") as a result of her 1993 first year commission credits production. Agents having the lowest 20% production in their district are eligible for placement on LPP. While on probation, the agents have to meet the prior year's average production each quarter of the probation year in order to remain employed. The letter notified Nweke that she was on a one-year probation beginning the week of April 4, 1994. For each quarter of the probation, Nweke would have to equal or exceed 25% of Sheepshead Bay's district average of first year commission credits in order to proceed to the next quarter of probation. By letter dated March 29, 1994, Nweke wrote Russo that his letter placing her on LPP was an error and that LPP did not apply to her. The reason she gave for the inapplicability of LPP was her disability leave of absence. Nweke was aware of Prudential's LPP policy dated January 1992 and saw part of the manual on the bulletin board. Nweke did not advise Provenzano that the LPP policy had an adverse impact on women or that she was discriminatorily placed on LPP.
In a March 24, 1994 letter to Martinez, Nweke complained that her checks were being withheld, that during her absence the policies in her agency were vandalized and cases reinstated to other agents, and that she was experiencing unwanted oversight by her new sales manager.
By letter dated March 24, 1994, Nweke notified Provenzano that she was in the process of filing a grievance with the assistance of the office shop steward. Under the procedure for filing a grievance, a grievant prepares the grievance with the assistance of the shop steward, called a district office chairman, for submission to the grievant's district manager. The district office chairman is also an insurance agent. The grievance served on Prudential on May 3, 1994 ("1994 grievance") alleges the denial of final disability leave payments, failure to receive pay since returning to work on March 2, 1994, transferral of her policies to other agents while she was on disability, and failure to receive commissions which she alleges should have been credited to her. The 1994 grievance also referred to readjustment pay, which can mean any payment for compensation that an individual should have received for one reason or another but did not receive. An agent on disability leave receives disability benefit payments and does not receive any supplemental payments. The commissions the agent earns from policies during disability leave are credited and stored for the agent in a product commission account until the agent returns from disability leave, at which time the agent begins to receive income from the account. Nweke did not mention any other concerns in her 1994 grievance.
Prudential requested and Local 888 agreed to an extension of time for responding to the 1994 grievance. Shortly after the grievance was filed, Nweke received her final disability payments. Provenzano, who has no authority to examine Prudential records, contacted Prudential manager Donald Carter about Nweke's disability leave checks and Dana Lombardi about Nweke's allegation that her policies had been purposely lapsed while she was on leave. Provenzano received Prudential's response to the 1994 grievance by letter dated October 7, 1994, and notified Nweke of the answer. Provenzano believed, based on the October 7 response, that Prudential had attempted to resolve the issues in Nweke's grievance. Prudential stated that policies and their related commission credits that were reinstated to other agents were to be returned to Nweke's credit, and Nweke was made aware of this request. In a letter dated September 2, 1994, to Martinez, Nweke acknowledges Prudential's agreement to return policies and commission credits to her. The October 7 letter stated that Nweke had received compensation for all other relevant periods. Nweke informed Provenzano that certain policies were returned to her and that she had received credit for them. She also states that a certain insurance policy was not reinstated to her and that if it had been she would have satisfied the LPP quota in the last quarter of 1994.
According to Nweke, the 1994 grievance was never resolved or referred to arbitration. She states that Provenzano was hostile and antagonistic towards her, that he called her "mental" once, and that he hung-up the phone on her many times and requested her to consult a physician if she was sick.
Nweke received a letter dated July 29, 1994, from Russo indicating that she met the requirements of the first three months of her probation and that it was being continued into the second quarter. Nweke acknowledges that she was successful at her job at that time. She states that as of July 29, 1994, she had not told Provenzano that she was unable to satisfy the LPP requirements. She did not even mention LPP requirements to Provenzano. Nweke also received a letter dated October 31, 1994, from Russo indicating that she met the requirements of the second quarter of her probation and that the probation was being continued into the third quarter. Nweke contends that at the time she "did not work extraordinary hard," but rather was "just working normally." Again, she admits that she made no mention to Provenzano regarding LPP or her ability to satisfy the required quota. In a September 2, 1994 letter, Nweke wrote to Martinez that she was being productive and improving herself by taking courses. She also said that she was promoting Prudential by performing community volunteer services. She listed two organizations and her church as volunteer activities.
Nweke received a termination letter from Prudential, dated March 13, 1995, on March 24, 1995, stating that she had failed to meet the requirements for the third quarter of her probation. Nweke contacted Provenzano by telephone the day she received the letter. That same day, Provenzano sent Nweke a grievance form with a short written grievance alleging unjust termination. He told her that the grievance had to be filed with the district manager within fourteen days. In a letter dated March 27, 1995, Nweke acknowledged receiving the grievance form within three days after it was mailed. She also concluded that Local 888 had failed to help her with her 1994 grievance. Provenzano contacted district office chairman Goren Ljuljic ("Ljuljic") to stress the fourteen-day deadline for filing the grievance. Ljuljic told Provenzano that Nweke missed appointments for having him sign the grievance and getting it filed with Prudential. Nweke did not sign an authorization to file the grievance until April 20, 1995. She stated that the termination grievance should be amended to conform with the grievance stated in a letter she wrote to Provenzano dated April 19, 1995.
By letter dated May 9, 1995, Provenzano wrote Nweke that he had not yet received her completed grievance which first had to be presented to the district manager and then forwarded to him. On May 4, 1995, he wrote to Thomas A. Campbell ("Campbell") of Prudential regarding Nweke's termination even though he did not have a copy of the grievance. By letter dated June 13, 1995, Prudential responded that Nweke had not filed her grievance in the Sheepshead Bay district as required. On July 10, 1995, Provenzano wrote to Prudential explaining the problems with the filing of Nweke's discharge grievance.
On July 31, 1995, Prudential agreed with the International to waive the contractual time limit on Nweke's discharge grievance in order to allow for its processing. The International processed Nweke's discharge grievance to the President's Committee held on November 20, 1995. Campbell, who represented Prudential at the President's Committee, discussed Nweke's 1994 grievance with the Union as part of the background discussion for the termination grievance. Prudential reviewed Nweke's net first year commission credit figures for 1993 following the discussion with the International at the President's Committee meeting.
Following the meeting, Prudential sustained its discharge decision. On December 4, 1995, the International sent Prudential a form letter stating that it wanted to refer Nweke's grievance to arbitration in order to provide time for making a final decision regarding arbitration. On May 6, 1996, the International wrote Nweke that it did not have sufficient evidence to process her discharge claim any further.
On June 21, 1995, Nweke filed on EEOC charge against Prudential, alleging race, sex, and disability discrimination. She filed an EEOC charge against Local 888 on June 23, 1995, alleging race, sex, and disability discrimination as well ("1995 EEOC charge"). Nweke's 1995 EEOC charge against Local 888 alleged that she was discriminatorily discharged, that the union said it did not receive her termination grievance, and that she was denied union representation regarding her termination grievance. Nweke also filed an unfair labor practice charge against Local 888 with the National Labor Relations Board on June 16, 1995.
On June 15, 1996, Nweke filed a discrimination charge against Local 888 with the EEOC, alleging retaliation for having filed the 1995 EEOC charge against the union ("1996 EEOC charge"). The 1996 EEOC charge alleged that she had filed a grievance in 1994, the union and Prudential agreed to discuss her 1995 termination grievance, that she filed charges against Local 888 in June 1995, and that in retaliation for the 1995 charges, the Unions and Prudential failed to discuss her grievance as required by the CBA. On the same day she filed an identical retaliation EEOC charge against Prudential. On September 12, 1996, the EEOC issued dismissals and notices of right to sue with regard to Nweke's two discrimination charges against Local 888. The EEOC charges against Prudential were also dismissed.
On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiff's favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985). Accordingly, the factual allegations of the Complaint are presumed to be true for the purpose of deciding the motions to dismiss.
Rule 12(b)(6) imposes a substantial burden of proof on the moving party. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893, (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229, (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957).
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ. of N.Y., 894 F. Supp. 750, 757 (S.D.N.Y. 1995) (citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) and Celotex Corp. V. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting)). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
In addition to the foregoing standards, the Second Circuit has held that additional considerations must be taken into account when deciding whether summary judgment should issue in an employment discrimination action. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's documents, a trial court must be particularly cautious about granting summary judgment when the employer's intent is at issue. Affidavits and depositions must be scrutinized for circumstantial evidence which, if believed, would show discrimination. Gallo, 22 F.3d at 1224. Nonetheless, when the defendant provides convincing evidence to explain its conduct and the plaintiff's contention consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment in favor of the defendant. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312-14 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). "In other words, to defeat summary judgment, 'the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Morris v. Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161, 168 (S.D.N.Y. 1998) (quoting Stern, 131 F.3d at 312).
II. Subject Matter Jurisdiction Is Lacking Over Certain Allegations in the Complaint That Were Not Raised in the EEOC Charges Against Local 888
The Unions assert that pursuant to Rule 12(b)(1), the court lacks jurisdiction over the subject matter of certain allegations of Title VII and ADA violations that were not included in the charges Nweke filed with the EEOC, including allegations that the LPP policy is an intentionally discriminatory policy, that the LPP policy discriminated against female employees as a class, that the LPP policy has a disparate impact on female and disabled employees, that Nweke requested an accommodation, and that the Unions failed to negotiate or discriminatorily negotiated the functions of the insurance agent job in violation of the ADA.
Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under Title VII. See 42 U.S.C. § 2000e-5(e); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). A district court only has jurisdiction to hear claims which are either raised in the EEOC charge or are "reasonably related" to the EEOC charges. See Butts v. City of New York Dep't of Hous., 990 F.2d 1397, 1402 (2d Cir. 1993). The ADA has substantially the same subject matter jurisdiction requirements as Title VII. See Chatoff v. West Publ'g Co., 948 F. Supp. 176, 178-79 (E.D.N.Y. 1996). The Second Circuit has recognized three different situations where claims not alleged in an EEOC charge are sufficiently related to provide jurisdiction: (1) where the claim brought in the civil action concerns conduct which would fall within the reasonable scope of the EEOC investigation; (2) where the claim alleges retaliation for filing the EEOC charge; and (3) where the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge. See Butts, 990 F.2d at 1402-03. Vague allegations in an EEOC charge cannot serve as predicates for allegations in the complaint. See id. at 1403.
This jurisdictional prerequisite requires dismissal of various allegations in the Complaint. First, Nweke did not allege in her EEOC charge against Local 888 that the LPP policy is an intentionally discriminatory policy based on race, sex, or disability. Although the focus is directed at the allegations against the Unions set forth in the EEOC charge against Local 888, the 1995 EEOC charge against Prudential also does not make this allegation. Accordingly, any allegation in Nweke's Complaint that Prudential follows a policy or practice that discriminates for which the Unions may be liable is dismissed against the Unions. Similarly, Nweke's Complaint allegations that the LPP policy has a disparate impact on female and disabled persons and that production quotas discriminate against females were not contained in nor are reasonably related to her discrimination charges filed against Local 888.
In her 1995 EEOC charge against Local 888, Nweke simply alleged that she was discriminatorily discharged by Prudential and denied union representation because her grievance was not processed properly. Specifically, she states that Local 888 failed to take any action regarding the grievance filed with respect to her termination and that if she had been a white male without a disability, she would have been afforded union representation. In her 1996 charge, she alleged that Local 888 refused to take her grievance to arbitration because she filed the 1995 charge against it.
This Court, in Gilliard v. New York Public Library System, 597 F. Supp. 1069, 1078-79 (S.D.N.Y. 1984), faced with an EEOC claim that stated, "I am non-white and have been denied equal terms, conditions and privileges of employment and demoted on or about July 1, 1981," dismissed complaint allegations of "a long-term pattern and practice of racial discrimination" against black employees of the defendant. It was found that:
Even if [the plaintiff] is given the benefit of a broad reading of the EEOC complaint, the allegations as to a general pattern of discrimination by the [defendant] fall outside of the scope of the charge. [The plaintiff's] EEOC charge was limited to a claim of discriminatory discharge. Because the EEOC charge did not give the [defendant] sufficient notice of [the plaintiff's] intention to raise these allegations pertaining to discrimination in wages, benefits and training, [his] Title VII claim as to these allegations must be dismissed.
For the same reasons, Nweke's claims concerning the LPP policy -- that the production quotas have a disparate impact on females and the disabled or that they adversely affect female agents returning from maternity leave -- are not reasonably related to the charge against Local 888 that it would not process her termination grievance or that it retaliated against her for filing the original charge against it. It therefore must be dismissed.
According to the Unions, the disability allegations likewise fail because Nweke did not allege in here EEOC charge that she requested or was refused an accommodation for her disability. The Unions submit that the EEOC September 12, 1996 dismissal of both EEOC charges against Local 888 did not address any accommodation theory of discrimination and that the fact that the EEOC did not investigate the issue of accommodation prevents the court from hearing Nweke's accommodation claim. See Chatoff, 948 F. Supp. at 179-80. Nweke, however, counters that her charge against Local 888 specifically incorporated her EEOC charge against Prudential by reference and that the EEOC letter to her forwarding her notice of right to sue on the Prudential charge indicates that the EEOC investigated the issue of accommodation.
It is not clear that the charge against Local 888 did incorporate the Prudential charge. Nonetheless, reading the EEOC charge in a light most favorable to Nweke, the accommodation claim falls within the reasonable scope of investigation of Nweke's contention that her termination was based upon a disability. Thus this claim will not be dismissed for lack of subject matter jurisdiction.
Finally, the Unions represent that Nweke failed to mention in the EEOC charge that Local 888 engaged in discriminatory negotiations or failed to negotiate essential and marginal functions of the insurance agent's job in violation of the ADA. As this is not reasonably related to ...