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August 18, 2000


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 its entirety.


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.


I. EEOC Preclusion

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 ...

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