United States District Court, E.D. New York
January 7, 2004.
EDITH A. CULBERTSON, Plaintiff, -against- CHAROSA FOUNDATION CORP., Defendant
The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
OPINION & ORDER
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
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
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
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
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).
A. Statute of Limitations
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);
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
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
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
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
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"
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
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
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
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
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
(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
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
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.
IT IS SO ORDERED.