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 ...