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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


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


  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 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. Page 7 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. 1993).

  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, Page 8


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 Page 9 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 Page 10 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 Page 11 events occurred outside the limitations period, and the plaintiff has not asserted a "continuing violation" under a policy or practice of the defendant.

  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 Page 12 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 Page 13 "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. Page 14

  C. Exhaustion

  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 Page 15 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 Page 16 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 Page 17 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 appellate review.

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