United States District Court, S.D. New York
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.
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
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.
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
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
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
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
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 becoming romantically involved and
told her it would be to her advantage to have a friend at UPS. (Compl.
Addendum at 5).
A. Standard of Review
In considering a motion for judgment on the pleadings under Rule
12(c), the court must view the allegations in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party. Deravin
v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003); Patel v. Searles, 305 F.3d 130,
134-35 (2d Cir. 2002). A complaint will be dismissed only if "it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Patel, 305 F.3d at 135
(quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, a pro se complaint must
be construed liberally. Taylor v. Vermont Department of Education,
313 F.3d 768, 776 (2d Cir. 2002).
When entertaining a Rule 12(c) motion, a court may consider the factual
allegations of the complaint and answer, any documents attached to the
complaint as exhibits or incorporated by reference, matters of which
judicial notice may be taken, and any documents on which the plaintiff
relied in bringing suit. See General Electric Capital Corp. v. Domino's
Pizza, Inc., No. 93 Civ. 5070, 1994 WL 256776, at *3 (S.D.N.Y. June 2,
1994); Acot v. New York Medical College, 153 F.R.D. 517, 521 (S.D.N.Y.
B. Time Bar
In general, discrimination claims under Title VII and the ADEA must be
filed with the EEOC within 180 days of the date when the alleged unlawful
employment practice occurred. 42 U.S.C. § 2000e-5(e)(1);
29 U.S.C. § 626(d)(1). However, in states like New York that have their
own anti discrimination laws and enforcement agencies, the limitations
period for filing an administrative charge with the EEOC is 300 days.
42 U.S.C. § 2000e-5 (e)(1); 29 U.S.C. § 626(d)(2), 633(b); see Ford v.
Bernard Fineson Development Center, 81 F.3d 304, 307 (2d Cir. 1996); Butts
v. City of New York Department of Housing Preservation & Development,
990 F.2d 1397, 1401 (2d Cir. 1993).
However, under the continuing violation doctrine,
if a Title VII plaintiff files an EEOC charge that is
timely as to any incident of discrimination in
furtherance of an ongoing policy of discrimination,
all claims of acts of discrimination under that policy
will be timely even if they would be untimely standing
alone. The continuing violation exception applies to
cases involving specific discriminatory policies or
mechanisms such as discriminatory seniority lists or
discriminatory employment tests.
Lambert v. Genesee Hospital, 10 F.3d 46
, 53 (2d Cir. 1993) (internal
citations omitted). But, "multiple incidents of discrimination, even
similar ones, that are not the result of a discriminatory policy or
mechanism do not amount to a continuing violation." Id. (citations
omitted); see also Van Zant v. KLM Roval Dutch Airlines, 80 F.3d 708, 713
(2d Cir. 1996); Davis v. City University of New York, No. 94 Civ. 7277,
1996 WL 243256, at *10 (S.D.N.Y. May 9, 1996) (claims dismissed on ground
that acts alleged were discrete and unrelated incidents of discrimination
and not a continuing violation).
Since Ms. Spencer filed her EEOC charge on January 16, 2002, any events
before March 22, 2001 (300 days prior) must be dismissed as time
barred.*fn7 The plaintiff's claim in the Complaint and the NYSDHR/EEOC
Charge that she was terminated on August 28, 2001 on the basis of her age
or sex is timely, and the defendant has not
challenged that claim in this motion.
Most of the plaintiff's claims concerning the defendant's failure to
promote her to full time supervisor are untimely. The plaintiff alleges
that she was overlooked for a promotion in 1994-95 at the Herald Square
location (Compl. Addendum at 1b; Intake Form at 3a), and in 1999 at the
Convention Center site. (Compl. Addendum at la). Both of these events
occurred outside the statute of limitations period. Moreover, Ms. Spencer
has not asserted any policy or practice that would bring these claims
within the "continuing violation" doctrine. A continuing violation cannot
be established "merely because the claimant continues to feel the effects
of a time barred discriminatory act," or because the claimant continues
her employment. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.
1999) (citations omitted).
The plaintiff does allege, however, that sometime after Mr. Riboul
arrived at the Convention Center location in September 2000, Ms. Spencer
asked both him and the human resources administrator about the
possibilities of becoming a full time supervisor, and that she was
denied such opportunities. (Compl. Addendum at 4-5). While the plaintiff
does not give the exact dates of these inquiries, she states in her
opposition papers that she "constantly asked about promotions and
positions available" while assigned to the Convention Center site, where
she stayed until her termination. (Memorandum of Law in Support of
Plaintiff's Motion for Judgment on
the Pleadings ("PI. Memo.") at 10).*fn8 These failure to promote claims
therefore appear to extend into the post March 22, 2001 time period,
and are timely. See Ullah v. NYDOCS, No. 00 Civ. 9506, 2002 WL 1424590,
at *4 (S.D.N.Y. June 28, 2002) (pro se plaintiff's memorandum of law can
be treated as part of complaint for purposes of deciding motion to
dismiss). However, the claims are unexhausted, as discussed below.*fn9
Ms. Spencer's claims concerning unequal pay are all untimely. She
asserts that she was denied overtime pay and given lower raises than
those of other supervisors in 1994-95 at the Herald Square site (Compl.
Addendum at 3), and that she was given the downgraded title of "OMS" with
lower pay in 1999 at the Convention Center site. (Compl. Addendum at 3;
Intake Form at 3a). All of these
events occurred outside the limitations period, and the plaintiff
has not asserted a "continuing violation" under a policy or practice of
With respect to the plaintiff's claims concerning sexual or other forms
of harassment, she claims that: (1) a supervisor shouted at her in 1992,
(2) her male supervisors engaged in lewd behavior in 1994-95 at the
Herald Square site, (3) she was subjected to "sexual innuendos and jokes"
in and after 1997 at the Convention Center, (4) her supervisor routinely
called her a "bitch" in and after 1997, (5) her supervisor, Kenny Hanes,
made sexual advances toward her in June 2001 (Compl. Addendum at 5; Pl.
Memo, at 7), (6) Mr. Riboul belittled and shouted at her after arriving
at the Convention Center in September 2000, and (7) Mr. Riboul failed to
repair an air conditioner during a heat wave in 2001.
Under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002), a plaintiff asserting a hosfile work environment claim need only
file a timely EEOC charge with respect to one act that forms a part of
the claim. Id. at 117-18. As a consequence, the entire period of the
claim, including acts falling outside the filing period, may be
considered for purposes of determining liability. Id. "A court's task is
to determine whether the acts about which an employee complains are part
of the same actionable hosfile work environment practice, and if so,
whether any act falls
within the statutory time period." Id. at 120; see Fontanez v. Thompson,
No. 00 Civ. 2090, 2003 WL 1964052, at *11 (S.D.N.Y. April 24, 2003).
Here, the plaintiff's harassment claims allege two separate types of
hosfile work environment practices. The first concerns harassment on the
basis of sexual conduct, including the supervisors' lewd behavior in
1994-95, the sexual innuendos and jokes in and after 1997, and Kenny
Hanes' sexual advances in June 2001. See Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986); 29 C.F.R. § 1604.11 (a) (defining sexual
harassment as including "[u]nwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature"). The
second hosfile work environment claim appears to concern non sexual
forms of harassment, which are presumably alleged to be based on the
plaintiff's age or gender. See, e.g., Brennan v. Metropolitan Opera
Association, Inc., 192 F.3d 310, 318 (2d Cir. 1999) (hosfile environment
based on age); Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001)
(hosfile environment based on sex, but not sexual conduct).*fn10 This
second category includes a supervisor shouting at the plaintiff in 1992,
another supervisor calling the plaintiff a
"bitch" sometime in or after 1997, Mr. Riboul's belittling of the
plaintiff in and after September 2000, and Mr. Riboul's failure to repair
an air conditioner in the summer of 2001.
Under Morgan, the hosfile work environment claim based on sexual
conduct could be considered a single unlawful action, made timely by the
June 2001 allegation concerning Kenny Hanes. Even if timely, however,
this claim is unexhausted, as discussed below.
The only aspects of the plaintiff's claim concerning non sexual
conduct that are timely are the two allegations concerning Mr. Riboul.
Even under Morgan, the plaintiff's claims that a supervisor shouted at
her in 1992 and that a different supervisor called her a "bitch" in about
1997,*fn11 are simply too distant in time and unrelated to Mr. Riboul's
conduct as to be considered part of the same hosfile work environment
claim. See Bailey v. Colgate-Palmolive Co., No. 99 Civ. 3228, 2003 WL
21108325, at *22-23 (S.D.N.Y. May 14, 2003); Costanzo v. United States
Postal Service, No. 00 Civ. 5044, 2003 WL 1701998, at *10 (S.D.N.Y. March
31, 2003). Accordingly, only the harassment allegations concerning Mr.
Riboul are timely.
Under both Title VII and the ADEA, the plaintiff may bring suit in
federal court only if she has filed a timely complaint with the EEOC and
obtained a right to sue letter. See 42 U.S.C. § 2000e-5(e), (f)(1);
29 U.S.C. § 626(d); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83
(2d Cir. 2001); Shah v. New York State Department of Civil Service,
168 F.3d 610, 613 (2d Cir. 1999); Malarkey v. Texaco, Inc., 983 F.2d 1204,
1208 (2d Cir. 1993). "Exhaustion of administrative remedies through the
EEOC is Aan essential element' of the Title VII and ADEA statutory
schemes and, as such, a precondition to bringing such claims in federal
court." Legnani v. Alitalia Linee Aeree Italians, 274 F.3d 683, 686 (2d
Cir. 2001) (quoting Francis v. City of New York, 235 F.3d 763, 768 (2d
Cir. 2000)); see also Butts, 990 F.2d at 1401; Malarkey, 983 F.2d at 1208.
Nevertheless, "claims that were not asserted before the EEOC may be
pursued in a subsequent federal court action if they are `reasonably
related' to those that were filed with the agency." Shah, 168 F.3d at
614; see Malarkey, 983 F.2d at 1208. A claim will be deemed sufficiently
related if "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." Butts, 990 F.2d at 1402 (citations and
internal quotations omitted). "[I]n determining the scope of the
investigation that can reasonably be expected, the court must consider
any attachments that a complainant has submitted with his EEOC
complaint." Little v. National Broadcasting Co., 210 F. Supp.2d 330, 374
n.32 (S.D.N.Y. 2002) (quoting Commer v. City of New York, No. 93 Civ.
7408, 1996 WL 374149, at *2 (S.D.N.Y. July 3, 1996)). Time barred
allegations in the EEOC charge "cannot serve as predicates for
allegations in the complaint said to be reasonably related." Butts, 990
F.2d at 1403.
Here, Ms. Spencer's claims of age and sex discrimination arising from
her termination on August 28, 2001 were timely and properly exhausted,
and the defendant does not challenge these claims on either ground.
However, most of the plaintiff's other timely claims fail for lack of
exhaustion. The plaintiff asserted failure to promote claims arising from
her requests for promotions in 2000-01; however, these claims were not
raised with the EEOC. In her NYSDHR Intake Form, she complained about
being overlooked for promotions in 1992 at the Fashion Center site
(Intake Form at 3), and in 1994-95 at the Herald Square Center (Intake
Form at 3a). But, as these allegations were time barred, they cannot
serve as predicates for showing a reasonable relation to the timely
claims raised for the first time in the plaintiff's Complaint. See
Butts, 990 F.2d at 1403.
With regard to the plaintiff's harassment and abuse claims, Ms. Spencer
alleged one incident of harassment based on sexual
conduct in her NYSDHR Intake Form, namely, the lewd behavior of her
supervisors in 1995. (Intake Form at 3a). However, since that allegation
was time barred, it cannot serve as a predicate for the plaintiff's
timely but unexhausted claims of sexual harassment. Moreover, there is no
reason to conclude that an NYSDHR/EEOC investigation into the termination
claim would have uncovered the allegations of sexual harassment. See
Eaton v. American Media Operations, Inc., No. 96 Civ. 6158, 1997 WL
7670, at *2 (S.D.N.Y. Jan. 9, 1997) (allegations of discrimination in pay
and promotions not related to sexual harassment claim); Roster v. Chase
Manhattan Bank, 554 F. Supp. 285, 287 n.5 (S.D.N.Y. 1983) ("[A]s a
general rule, an EEOC investigation into charges of sex discrimination in
areas such as pay, promotion, and conditions of employment could not
reasonably be expected to uncover incidents of sexual harassment.").
As for non sexual abusive conduct, Ms. Spencer included in her
NYSDHR Intake Form allegations concerning Mr. Riboul's shouting and
failure to repair the air conditioner in 2001. (Intake Form at 3a, 3b).
These claims are therefore properly exhausted.
For the reasons set forth above, I recommend that the defendant's
motion for partial judgment on the pleadings be granted in substantial
part, and that the plaintiff's claims of disparate pay, failure to
promote, and sexual harassment be dismissed. The
plaintiff's remaining claims for (1) age and sex discrimination arising
from her termination and (2) hosfile work environment created by Ralph
Riboul on the basis of age or gender, remain to be litigated. Pursuant to
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal rules
of Civil Procedure, the parties shall have ten (10) days from this date
to file written objections to this Report and Recommendation. Such
objections shall be filed with the Clerk of the Court, with extra copies
to be delivered to the chambers of the Honorable Kimba M. Wood, Room
1610, and to the chambers undersigned, Room 1960, 500 Pearl Street, New
York, New York 10007. Failure to file timely objections will preclude