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SPENCER v. UNITED PARCEL SERVICE

February 27, 2004.

RUBY SPENCER, Plaintiff, -against- UNITED PARCEL SERVICE, Defendant


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT AND RECOMMENDATION

The plaintiff, Ruby Spencer, brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. § 621 et seq. Ms. Spencer alleges that the defendant, United Parcel Service ("UPS"), discriminated against her on the basis of her age and sex by terminating her employment, providing unequal pay, failing to promote her, and subjecting her to sexual and other forms of harassment. The defendant has moved under Rule 12(c) of the Federal Rules of Civil Procedure for partial judgment on the pleadings dismissing the plaintiff's claims for disparate pay, failure to promote, and sexual harassment. The defendant asserts that the plaintiff failed to exhaust administrative remedies and that the claims are time — barred. For the reasons set forth below, I recommend that the defendant's motion be granted in substantial part. Page 2

Background

  Ms. Spencer worked at UPS from October 14, 1991 until she was terminated on August 28, 2001. (Compl. Addendum at 2).*fn1 On January 16, 2002, she filed a charge with the New York State Division of Human Rights ("NYSDHR"). (NYSDHR Charge, attached as Exh. C to Affidavit of Tracey I. Levy dated Aug. 12, 2003 ("Levy Aff.")). The charge was jointly filed with the EEOC. (EEOC Charge, attached as Exh. C to Levy Aff.).

  In her NYSDHR/EEOC Charge, the plaintiff alleged that in or about 2001, she worked at the defendant's Convention Center location under the supervision of Ralph Riboul. (NYSDHR Charge at 1). The plaintiff alleged that she was attending classes part — time to obtain a bachelors degree, and that this had never posed a problem with her previous manager. (NYSDHR Charge at 1). The plaintiff informed Mr. Riboul that her final semester of classes would consist of night classes lasting from 5:45 p.m. to 7:00 p.m., and Mr. Riboul approved her class schedule and signed a tuition reimbursement form for her. (NYSDHR Charge at 1). Ms. Spencer began classes on August 27, 2001, and was terminated on August 28, Page 3 2001. (NYSDHR Charge at 1).*fn2 Mr. Riboul told the plaintiff that she was no longer needed because she had to be at work earlier. (NYSDHR Charge at 1). Ms. Spencer alleged that younger male employees were allowed to attend classes and were not terminated or disciplined. (NYSDHR Charge at 1-2).

  On January 27, 2003, the plaintiff filed a Pro Se Complaint in this Court, reiterating her termination claim (Compl. Addendum at 4), and asserting new claims not included in her NYSDHR/EEOC Charge. Some of the new claims were included in an intake form that Ms. Spencer submitted to the NYSDHR on January 16, 2002. (NYSDHR Intake Form ("Intake Form"), attached as Exh. A to Letter of Tracey I. Levy dated Sept. 3, 2003).*fn3

  Specifically, the plaintiff claimed in the NYSDHR Intake Form that when she transferred to the Herald Square/Lenox Center in 1994-95, a clerk who had been hired for the Center was trained and promoted to the plaintiff's position as supervisor.*fn4 (Compl. Page 4 Addendum at lb, 2; Intake Form at 3a).*fn5 Additionally, the plaintiff's male supervisors repeatedly used foul language, made comments concerning their genitalia, and mimicked sexual intercourse with one another. (Compl. Addendum at 2; Intake Form at 3a). The plaintiff complained about these and other issues in 1997 to a mediator in charge of employee grievances. (Compl. Addendum at 3; Intake Form at 3a).

  After being relocated to the Convention Center site as a part — time supervisor, the plaintiff's title was downgraded to "OMS"*fn6 in 1999. (Compl. Addendum at 3; Intake Form at 3a). She also received only minimal raises, which were increased after Ms. Spencer complained to the manager of the Center. (Compl. Addendum at 3; Intake Form at 3a). Nevertheless, her pay was still lower than that of other part — time supervisors. (Compl. Addendum at 3). The manager told Ms. Spencer that he was trying to raise her salary to the "normal pay of the part — time supervisors," but that he was being "denied [permission] to do so." (Compl. Addendum at 3).

  In about September 2000, Mr. Riboul arrived at the Convention Center as the new manager. (Compl. Addendum at 4). According to Ms. Spencer, Mr. Riboul constantly corrected her work, shouted at Page 5 her, and belittled her. (Compl. Addendum at 4; Intake Form at 3a, 3b). During a heat wave in 2001, the air conditioner in the plaintiff's office malfunctioned, and although she repeatedly asked Mr. Riboul to have it fixed, no action was taken. (Compl. Addendum at 4-5; Intake Form at 3b).

  In her Complaint, the plaintiff also asserted several allegations not included in the NYSDHR Intake Form or the NYSDHR/EEOC Charge. The plaintiff alleged that a supervisor named Pat Smith shouted and cursed at her when she was stationed at the Fashion Center site in 1992. (Compl. Addendum at 2).

  The plaintiff also alleged that while working at the Herald Square Center site in 1994-95, she did not receive overtime pay or the same level of raises as that of other part — time supervisors. (Compl. Addendum at 3). Namely, she always received $50.00 raises, but learned from a co-worker that raises for part — time supervisors ranged from $50.00 to $200.00. (Compl. Addendum at 3).

  Ms. Spencer alleged that she inquired about full — time supervisor positions in 1999. (Compl. Addendum at la). She was never informed of any opportunities, but a lower — level clerk named Tremaine Miller was informed of a full — time OMS position and later given the job. (Compl. Addendum at la).

  The plaintiff further alleged that she asked Mr. Riboul about the possibility of being promoted to full — time supervisor. (Compl. Addendum at 5). He responded that Ms. Spencer's degree "wasn't Page 6 worth anything." (Compl. Addendum at 5). The plaintiff also made inquiries of the human resources administrator, who told her that no positions were available. (Compl. Addendum at 5). After Ms. Spencer was terminated, a younger clerk filled her position. (Compl. Addendum at la).

  Finally, Ms. Spencer alleged additional incidents of sexual or other harassment. She states that after being relocated to the Convention Center in 1997, she was "again in an environment where sexual innuendos and jokes[] were a normal nightly routine." (Compl. Addendum at 3). A supervisor began calling her a "bitch" on a regular basis. (Compl. Addendum at 3). The plaintiff alleged that her supervisor, Kenny Hanes, made repeated suggestions to her about ...


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