The opinion of the court was delivered by: Marrero, District Judge.
Plaintiff Prithibee Ghose ("Ghose") brings this action alleging
national origin and racial discrimination by defendants Century 21,
Inc., a retail department store, and James Betesh ("Betesh"), an employee
of the store (collectively, "Century 21"). Century 21 has moved for
summary judgment on all claims set forth in the Third Amended Complaint,
arguing, inter alia, that Ghose has not established a prima facie case of
discrimination and that some of his claims are precluded because they
were not filed with the Equal Employment Opportunity Commission
("EEOC"). For the reasons set forth below, the Court grants the motion in
Century 21 employed Ghose as a security guard in the Loss Prevention
Department of its Manhattan store starting in May 1991. In the spring of
1995, in response to an increased amount of theft, Century 21 transferred
Betesh from its Brooklyn store to the Manhattan location to serve as
Director of Loss Prevention. In January 1996, citing problems with his
conduct and performance, Century 21 fired Ghose.
Ghose, who is of Bangladeshi origin, alleges four causes of action
under the following statutes: (1) 42 U.S.C. § 1981 ("Section 1981");
(2) 42 U.S.C. § 2000e et seq. ("Title VII"); (3) New York State Human
Rights Law (N.Y.Exec.Law § 290 et seq.); and (4) New York City Human
Rights Law (New York City Administrative Code § 8-107). Ghose alleges
that Century 21, through its employees, and
Betesh in particular, violated all four statutes by considering Ghose's
national origin in connection with his compensation, promotion,
discipline and discharge; making inappropriate and derogatory remarks
about Ghose's accent and national origin; warning Ghose against
associating with African-American employees; fostering a racially hostile
work environment; retaliating against and harassing Ghose for registering
complaints of discrimination; and failing to interview, hire or promote
qualified minority workers for both management and subsidiary positions.
See Compl. ¶ 18. Ghose seeks compensatory damages in the form of back
pay, reinstatement, damages for emotional distress, punitive damages and
attorney's fees. See Compl. ¶¶ 28, 32, 35.
Federal law requires timely filing of discrimination charges with the
EEOC. See 42 U.S.C. § 2000e-5(b); Tadros v. Coleman, 898 F.2d 10, 11
(2d Cir. 1990), cert. denied, 498 U.S. 869, 111 S.Ct. 186, 112 L.Ed.2d
149 (1990). In a state which has a fair employment agency, such as New
York, charges must be filed with the EEOC within either 300 days of the
alleged discrimination or 30 days of notice of termination of state
proceedings, whichever occurs first. See 42 U.S.C. § 2000e5(e)(1)
(2000). A district court lacks jurisdiction over discrimination claims
that are not included in the EEOC complaint. See Wilson v. Fairchild
Republic Co. Inc., 143 F.3d 733, 739 (2d Cir. 1998).
The purpose of the notice provision is to encourage settlement. This
objective would be undermined if new claims not presented to the EEOC
were allowed to be litigated. See Miller v. ITT Corp., 755 F.2d 20, 26
(2d Cir. 1984), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122
(1985). As a general rule, where a plaintiff fails to file a timely
charge with the EEOC with respect to a specific claim of discrimination,
that claim is barred from future litigation. See Butts v. City of New
York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d
Cir. 1993). There are, however, exceptions to this rule regarding
untimely claims, for a court may consider claims absent from the EEOC
charge if such claims are "reasonably related" to allegations actually
set forth in the charge. See Shah v. New York State Dep't of Civil
Serv., 168 F.3d 610, 614 (2d Cir. 1999); Kirkland v. Buffalo Bd. of
Educ., 622 F.2d 1066, 1068 (2d Cir. 1980).
Three circumstances have been recognized satisfying the "reasonably
related" requirement. The first, loose pleadings, encompasses claims in
which the conduct complained of falls within the scope of the EEOC
investigation that reasonably would be expected to ensue from the
original charge of discrimination. See Smith v. American President
Lines, Ltd., 571 F.2d 102, 107, (2d Cir. 1978). Because EEOC charges are
usually filed without the advice of counsel and merely in order to alert
the EEOC to the alleged discrimination, loose pleadings are generally
accepted. See Butts, 990 F.2d at 1397.
Second, an employer's alleged retaliatory acts following the EEOC
charge normally satisfy the reasonably related requirement. See id at
1402; Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir. 1993); Owens
v. New York City Hous. Auth., 934 F.2d 405, 410-11 (2d Cir. 1991), cert.
denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991). Such claims
of retaliation are excepted from the EEOC preclusion rule because in the
typical case, employers are alleged to retaliate upon learning of the
EEOC charge or investigation. The final common exception to the EEOC
preclusion rule arises where subsequent discrimination of the same type
alleged in the EEOC complaint occurs, and such further incidents
transpire in "precisely the same manner" as established in the EEOC
complaint. See Butts, 990 F.2d at 1403. This final exception protects a
plaintiff from the inconvenience and
burden of having to file a separate EEOC complaint for additional
instances of the same discriminatory behavior. See id.
Century 21 argues that Ghose's claims of discrimination based on his
association with African-American co-workers, a hostile work environment
and retaliation are precluded because these claims were not alleged in
Ghose's original filing with the EEOC, which charged only racial and
national origin discrimination. Ghose has not attempted to refute this
argument in his opposition papers to the present motion.
Ghose's EEOC complaint, filed in January, 1996, describes in minor
detail the circumstances surrounding Ghose's dismissal. It contains no
references whatsoever to a hostile work environment, mistreatment for
associating with African-American employees or retaliatory harassment.
Furthermore, because all of Ghose's allegations occurred during his
tenure at Century 21, and prior to filing with the EEOC, Ghose ostensibly
could have included these charges in his EEOC complaint.
None of Ghose's three additional claims satisfies any of the recognized
exceptions to the EEOC preclusion rule. The retaliatory act alleged was
not Ghose's dismissal by Century 21, but rather "harassment" and
"accusations" committed by Betesh prior to Ghose's EEOC filing. See
Plaintiffs Memorandum of Law in Opposition to Motion for Summary
Judgment, dated Dec. 29, 1999 ("Plaintiffs Memo"), at 4. In this
respect, Ghose's retaliation claim is atypical of the common instances of
retaliation sustained by case law. The Butts court, in explaining the
justification for the retaliation exception, stressed the perverse effect
of requiring a plaintiff to file a second EEOC complaint to encompass
retaliatory conduct that occurred as a result of the first charge. See
Butts, 990 F.2d at 1402. But ...