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United States District Court, E.D. New York

January 7, 2004.


The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge


I. Introduction

Defendant ChaRosa Foundation Corp. ("ChaRosa" or "defendant") has moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is GRANTED.

 II. Background

  A. Facts

  ChaRosa, founded by Charles Alien ("Alien") and Rose Geneva ("Geneva"),*fn1 is a community-based, not-for-profit organization that provides cultural and educational programs for the community. (Mem. of Law in Supp. of Def.'s Mot. to Dimiss at 1-2). Plaintiff Edith Culbertson ("Culbertson" or "plaintiff) was hired by defendant on September 13, 1999 as a program director. (Compl. at 4). Ms. Culbertson claims she had had several years of experience Page 2 working for other non-profit organizations, and was attracted to ChaRosa by a promise of more responsibility, the opportunity to reach a larger community, and better benefits, (Id.).

  Ms. Culbertson alleges that as soon as she was hired, "Mr. Alien immediately began to engage in behaviors that were abusive, threatening and discriminatory." (Id. at 5). While plaintiff claims that Mr. Alien treated his entire staff poorly, she "caught the brunt of his abuse" since she worked directly with Mr. Alien (Id.). According to Ms. Culbertson, she "felt like a trapped animal." (Id. at 6). Examples of Mr. Alien's allegedly offensive behavior include: demanding that plaintiff "bring the women under control"; ordering plaintiff to investigate female employees but not male employees; failing to support her efforts to direct programs; pouring gasoline in a garbage can to scare her; and yelling at plaintiff in the basement after she decorated her desk with white and black bows. (Id.). Plaintiff was terminated on or about December 12, 1999.

  B. Procedural History

  On October 10, 2000, plaintiff filed a verified complaint with the City of New York Commission on Human Rights (the "NYCCHR") against ChaRosa, Mr. Alien, and Ms. Geneva, which was also accepted on behalf of the United States Equal Employment Opportunity Commission (the "EEOC"). (NYCCHR Determination and Order at I). In her complaint, plaintiff alleges that "respondents have discriminated against her by denying her equal terms and conditions of employment and terminating her employment because of her gender . . ." (NYCCHR Verified Compl. ¶ 8). No mention was made of discrimination on any other basis.

  On August 2, 2002, the NYCCHR dismissed plaintiff's complaint, concluding that "there Page 3 is no probable cause to believe that the respondents have engaged or are engaging in the unlawful discriminatory practices alleged." (NYCCHR Determination and Order at 1). The NYCCHR Determination and Order After Investigation stated:

The investigation further revealed that although respondent Alien was found to have treated his staff in an oppressive manner, the Commission has found nothing to substantiate the complainant's allegations that she alone was discriminated against because she is female. The investigation revealed that not only were other women in the office ill-treated by respondent Alien, but also that male co-workers were subjected to harsh treatment by respondent Alien. . . . The evidence revealed that respondent Alien was abusive to all of his employees. Therefore, the Commission has determined that there is no probable cause that discriminatory animus played a role in respondents' actions towards the complainant.
(Id. at 1-2). The EEOC adopted the findings of the NYCCHR and dismissed plaintiff's complaint on May 1, 2003, (EEOC Dismissal and Notice of Rights at 1).

  On July 23, 2003, plaintiff filed the instant complaint pro se alleging that defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq. ("ADEA") by discriminating against her on the basis of gender, race, religion, and age, and by retaliating against her for filing charges. (Compl. at 1-3). On November 17, 2003, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendant filed the instant motion to dismiss on the grounds of: (1) failure to comply with the statute of limitations; (2) failure to exhaust administrative remedies; and (3) failure to state a claim upon which relief can be granted. (Mem. of Law in Supp. of Def.'s Mot. to Dimiss at 1).

 III. Analysis

  A. Statute of Limitations Page 4

  To commence a claim for unlawful discrimination under Title VE or the ADEA, a plaintiff must file administration charges with the Equal Employment Opportunity Commission ("EEOC") or with "a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e) (1994) (Title VE); see 29 U.S.C. § 626(d) (1994) (ADEA); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 82-83 (2d Cir. 2001). For a Title VII or ADEA claim to be timely, it must be filed within ninety (90) days of the claimant's receipt of a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50, 80 L.Ed.2d 196, 104 S.Ct. 1723 (1984)(per curiam); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). This ninety (90) day period begins to run on the date the plaintiff receives the EEOC's right-to-sue notice, and it is presumed that a mailed document is received three days after its mailing. See Sherlock, 84 F.3d at 525-26 (citing Baldwin County, 466 U.S. at 148 n.1); Fed.R.Civ.P. 6(e).

  Defendant contends that plaintiff did not file the instant action until August 13, 2003, and that this was ten days after her time to file expired. (Mem. of Law in Supp. of Def.'s Mot. to Dismiss at 5). This is incorrect. While the court clerk's office did not issue a summons to defendant until August 13, 2003, plaintiff in fact filed her complaint with this Court on July 23, 2003. (Summons and Compl,). Thus, plaintiff's complaint was timely and defendant's motion to dismiss on this ground is denied.

  B. Exhaustion of Remedies

  Defendant contends that since plaintiff failed to raise her racial, religious, and age discrimination claims, as well as her retaliation claim, in the administrative complaint, she is Page 5 precluded from asserting racial and religious discrimination under Title VII or age discrimination under the ADEA. (Mem. of Law in Supp. of Def.'s Mot. to Dismiss at 7). A district court only has jurisdiction to hear Title VII and ADEA claims that were either included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is "reasonably related" to that alleged in the EEOC charge. See Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citing Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985)). Therefore, the issue is whether plaintiff's claims of racial, religious, and age discrimination are "reasonably related" to her gender discrimination claim raised with the EEOC.

  As the Second Circuit has explained, there are three types of situations where claims not alleged in an EEOC complaint are "reasonably related" such that "it would be unfair to civil rights plaintiffs to bar such claims in a civil action." Butts, 990 F.2d at 1402. First, courts have allowed claims not brought in an EEOC charge where 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. (citing Smith v. American President Lines. Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978)). Second, a claim alleging retaliation by an employer against an employee for filing an EEOC charge is considered reasonably related to the charge filed. See id. (citing Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993)). Third, additional incidents of discrimination "carried out in precisely the same manner alleged in the EEOC charge" are reasonably related to the initial charge. Id at 1403 (citing Almendral v. New York State Office of Mental Health, 743 F.2d 967 (2d Cir. 1985)).

  1. Scope of EEOC Investigation Page 6

  Defendant contends that one would not reasonably expect the EEOC to have uncovered plaintiff's racial, religious, and age discrimination claims in its investigation. (Mem. of Law in Supp. of Def.'s Mot. to Dimiss at 8-10). Courts in the Second Circuit have generally held that claims alleging discrimination based upon a protected classification which are different than the protected classification asserted in administrative filings are not reasonably related. See, e.g., Holtz v. Rockefeller & Co., 258 F.3d 62, 84 (2d Cir. 2001) (dismissing a religious discrimination claim since the EEOC charge had only referred only age discrimination, sexual harassment, and retaliatory discharge); Coleman v. Bd. of Educ., No. 96-4293, 2002 WL 63555, at *3 (S.D.N.Y. Jan. 16, 2002) ("[A] claim of gender discrimination is not reasonably related to a claim of . . . race . . . discrimination."); Grillo v. New York City Transit Auth., 122 F. Supp.2d 385, 391 (E.D.N.Y. 2000) ("Because the gender discrimination claim was not included in Grillo's EEOC charge and gender discrimination claims are not `reasonably related' to discrimination claims based on race or national origin, the court will dismiss Grille's claim of gender discrimination under Title VII."), aff'd, 291 F.3d 231 (2d Cir. 2002).

  In O'Neal v. State Univ. of New York., No. 01-7802, 2003 WL 1524664 (E.D.N.Y. Mar. 24, 2003), the plaintiff filed an administrative complaint with the New York State Division of Human Rights ("NYSDHR") alleging sex discrimination. See id at *2. The NYSDHR investigated the charges and found that there was no probable cause that the defendant had engaged in unlawfully discriminatory practices, a finding that was adopted by the EEOC. See id After the plaintiff filed a Title VII claim alleging racial and gender discrimination, the court held that "having failed to avail herself of administrative remedies with respect to a potential race discrimination claim, O'Neal is precluded from raising a race discrimination claim in this forum" Page 7 since "any claim that defendant discriminated against O'Neal based on race could not be expected to `fall within the scope' of an administrative investigation concerning allegations of sex discrimination." Id. at *3.

  Similarly, plaintiff's administrative complaint alleging discrimination based on gender could not reasonably be expected to have triggered an investigation into the age, racial, and religious allegations she now raises. Her factual description of the discrimination is limited to paragraph 6 of the verified complaint filed with the NYCCHR and EEOC:

Beginning in or around October 1999 and continuing until on or about December 20, 1999, Respondent Alien subjected complainant to disparate treatment, including but not limited to, speaking to her with a menacing tone, ordering her to get personal information about the female employees, threatening her with loss of wages and insisting that complainant accompany him to the basement. Upon information and belief, Respondent Alien does not treat similarly-situated, male employees in this manner.
(NYCCHR Verified Compl. ¶ 16). In paragraphs 8 and 9 of her complaint, plaintiff specifically charged that respondent's discrimination was based on her gender or sex. (Id. ¶¶ 8-9). Neither on the face, nor in the substance of the complaint, was there any suggestion of her racial, religious, or age discrimination. In fact, plaintiff does not even note her race, religion, or age in the administrative complaint.

  Plaintiff's racial, religious, and age discrimination claims do not satisfy the exception to the exhaustion requirement that permits claims "reasonably related" to those charged in an administrative complaint to be raised in this forum.

  2. Retaliation as Discrimination

  As noted above, a retaliation claim can be considered "reasonably related" to allegations raised in an EEOC complaint if the employer's conduct is in retaliation against an employee for Page 8 filing an EEOC charge. See Butts, 990 F.2d at 1402. Since the alleged discrimination occurred before plaintiff filed her administrative charges, (Compl. at 3), any allegedly offensive conduct was not based on retaliation for the filing of a NYCCHR or EEOC complaint. Hence, the alleged racial, religious, and age discrimination does not fall into the second category of reasonably related conduct outlined in Butts.

  3. Further Incidents of Discrimination

  Plaintiff's claim does not refer to new incidents of discrimination.

  As the allegations of racial, religious, and age discrimination do not fall into any category of reasonably related conduct outlined in Butts, these claims are dismissed.

  C. Retaliation Claim

  Plaintiff claims that Mr. Alien "retaliated with not giving me mail from the Domestic Violence Board." (Pl.'s Reply at 5). However, there is no causal connection between the protected activity and the adverse action since the alleged retaliatory conduct occurred in 1999, before the filing of administrative charges on January 18, 2000.*fn2 (NYCCHR Verified Compl.). Plaintiff's claim of retaliation is therefore dismissed.

  D. Failure to State a Claim of Gender Discrimination

  1. Standard of Review

  A motion to dismiss for failure to state a claim under 12(b)(6) should be granted only Page 9 where "it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998). The Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 128 (2d Cir. 1999). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).

  A pro se plaintiff's submissions are held to less stringent standards than formal pleadings drafted by attorneys. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L.Ed.2d 163, 101 S.Ct. 173 (1980) (per curiam). Indeed, a court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir. 1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983).

  2. Gender Discrimination

  To establish a prima facie case of gender discrimination, a plaintiff must show: (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances raising an inference of discrimination. See Forbes v. State Univ. of New York, 259 F. Supp.2d 227, 235 (E.D.N.Y. 2003).

  It is undisputed that plaintiff has established the first three (3) elements of her prima facie case. However, plaintiff has not satisfied the fourth prong to establish a prima facie case of Page 10 gender discrimination.

  Plaintiff's complaint alleges:

Mr. Alien . . . would demand that "I bring the women under control." If a female was out, I had to call them all day long to find out where they were and what they were doing. If she was out for a business matter, I was ordered to get a copy of the business papers. Ms. Rosa stated they believed one female employee had a "Sugar Daddy" and I better find out if she did have one or Mr. Alien would be mad. I was never ordered to check on male employees who were absent.
(Compl. at 6). Mr. Alien's orders to verify the nature of other female employees' absence do not raise an inference of discrimination based upon plaintiff's gender. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). Indeed, assuming the allegations to be true, it is unclear how plaintiff was injured by Alien's conduct.

  Although the fourth element can be proven by showing that similarly situated men were treated differently, see Shumway v. UPS, 118 F.3d 60, 63 (2d Cir. 1997), plaintiff herself concedes that men were also treated in a harsh and abusive manner. Her complaint states that Mr. Alien "treated his staff in an `oppressive manner' . . . and was `abusive to all of his employees.'" (Compl. at 5). Additionally, plaintiff notes that "[t]he employees who worked there when I was hired, to my observation, were disgruntled but accepted his abusive behavior." (Id.). Thus, it is clear that defendant's work environment affected both males and females equally.

 IV. Conclusion

  Plaintiff failed to exhaust her administrative remedies with respect to her racial, religious, and age discrimination claims, as well as her retaliation claim. Additionally, plaintiff's gender Page 11 discrimination claim cannot establish a prima facie case. Accordingly, defendant's motion to dismiss is GRANTED and this case is dismissed in its entirety. The Clerk of Court is directed to close this case.


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