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United States District Court, S.D. New York

March 19, 2004.

LIUBA MANKO, Plaintiff, -against- DEUTSCHE BANK, Defendant

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


This is an action by pro se plaintiff Liuda Manko against her former employer, the New York branch of Deutsche Bank AG,*fn1 alleging discrimination in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e-17, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634, and the Equal Pay Act, 29 U.S.C. § 206(d).

Now before the Court is defendant's motion to dismiss the complaint. Defendant alleges four grounds for dismissal: first, that plaintiff failed to effect service on the defendant within 120 days from the filing of the complaint, as specified by Fed.R.Civ.P. 4(m); second, that certain of plaintiff's claims are barred as beyond the scope of the charges brought before the Equal Employment Opportunity Commission ("EEOC"); third, that plaintiff cannot bring allegations pursuant to the ADEA because Page 2 she was not forty years of age at the time of her termination; and finally that plaintiff's claims under the Equal Pay Act are time-barred. This motion does not concern plaintiff's claims of discrimination on the basis of national origin and sex, nor does it concern what appears to be a separate cause of action alleged for failure to pay plaintiff a severance package upon her termination.

  For the reasons set forth, the motion is granted in part and denied in part.


  The following facts are taken from the pleadings and the affidavits on the motion.

  Plaintiff is a forty-two year old woman born in Russia and of the Jewish faith. She was employed as a Junior Programmer/Analyst at the New York branch of Deutsche Bank from July 8, 1996 until her termination on March 23, 1999.

  The amended complaint alleges that defendant initially hired plaintiff at a lower position than that for which she had applied and was qualified — Programmer/Analyst — because of plaintiff's gender and strong Russian accent. The amended complaint further alleges that despite positive performance evaluations and technical abilities superior her coworkers, plaintiff never received a promotion due to her gender and Russian accent. Throughout her time at Deutsche Bank, plaintiff alleges that her Page 3 salary and bonuses were lower than those of her coworkers and inadequately reflected her experience and education, owing to her gender and accent.

  Plaintiff also alleges that she was sexually harassed by a supervisor while employed by defendant. The complaint alleges that in about May 1997 Philip Giordano, a manager, asked plaintiff on a date, and plaintiff replied that she was already dating somebody else. Two weeks later, the amended complaint alleges that Giordano saw plaintiff arrive to work at 9:40 a.m. with another employee, Mark Millen. The amended complaint alleges that Giordano called plaintiff and Millen into his office and threatened to fire them. The amended complaint alleges that after that incident plaintiff and Giordano had a poor working relationship, and that Giordano began to demand that plaintiff arrive work from 9 a.m. until 7 p.m. each day.

  Plaintiff also alleges that defendant imposed onerous conditions and constraints on her employment in retaliation against her for complaints she made to a supervisor. The amended complaint alleges that in July 1998 plaintiff requested a meeting with Anthony McCarty, who was the head of her department. At this meeting plaintiff complained, among other matters, about her low salary and lack of promotion, and that Giordano was harassing her regarding her work hours. The amended complaint alleges that after the meeting plaintiff was called to Human Resources and Page 4 told that she would be fired if she did not arrive to work by 9 a.m. each day. Plaintiff alleges that on this occasion she complained to Human Resources that male, American-born employees were not held to the same standard.

  The amended complaint also alleges that plaintiff was discriminated against on the basis of her age, as evidenced by the fact that defendant replaced plaintiff with a younger, married woman.

  Finally, plaintiff alleges that she was discriminated against on the basis of her religion. The allegation in the complaint that appears to be germane to this charge relates to a conversation plaintiff had with a supervisor, Bill Louie, in which Louie allegedly acknowledged that Giordano and other managers wanted to fire plaintiff. The amended complaint states that Louie, who is Asian American, told plaintiff a story about growing up in a Hasidic Jewish neighborhood where his Jewish neighbors "didn't want to accept him." The amended complaint states that Louie "hinted that Jews discriminate [against] `non Jews' and therefore it is `OK' to discriminate [against] Jews."

  On or about July 17, 1999 plaintiff filed complaints with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"). It appears that identical complaints were filed with the two agencies. Because defendant argues on the motion before the Court that the Page 5 instant complaint contains allegations that plaintiff did not contain in her administrative charges, the details of those charges will be set forth.

  The administrative complaint stated that plaintiff was an unmarried, Russian female, that in three years of employment at Deutsche Bank she had performed in a satisfactory manner, but that she was nonetheless terminated on March 23, 1999. The complaint alleged that during her tenure plaintiff was subjected to disparate treatment on account of her sex, in particular that she was paid a lower salary than her male counterparts and that her performance was monitored in a manner that was not done with male employees. The complaint further alleged that plaintiff was discriminated against because she was Russian, and that in particular Giordano made fun of her Russian accent and claimed that he could not understand her. Following her termination, the complaint alleged that plaintiff was replaced by a married woman with a child, and that there was "an unspoken rule" in German companies that employment preference be given to married women with children.

  On May 29, 2001 plaintiff sent a letter to the NYSDHR in response to a Statement of Position by defendant regarding her charges. This letter contained substantially more facts than were alleged in the initial administrative complaint. Among other allegations, the letter described a period of deteriorating Page 6 relations between plaintiff and Giordano, and indicated that Giordano's disapproval of plaintiff's work was a result of plaintiff's refusal to flirt with or date Giordano. The letter also made a number of allegations regarding sexual comments or advances from other male employees. Additionally, the letter mentions plaintiff's July 1998 meeting with McCarty, and states that in that meeting she complained about a number of work conditions, including the fact that Giordano heavily criticized her work hours and that her salary was inadequate. The letter states that McCarty did not help plaintiff and instead informed her supervisor and the Human Resources department about her complaint. The letter further states that "in retaliation for [her] meeting with McCarty" another supervisor requested that plaintiff work every day from 9 a.m. until as late of an hour as she was needed.

  On June 18, 2002 the NYSDHR issued a Determination and Order that set forth findings of fact and dismissed plaintiff's complaint as being without probable cause. On July 16, 2002, the EEOC adopted the findings of the NYSDHR and issued plaintiff a Right to Sue letter.

  Plaintiff initially filed the instant action on October 11, 2002, and simultaneously requested to proceed in forma pauperis. On December 24, 2002 plaintiff's request to proceed in forma pauperis was denied, and she was directed to pay a filing fee Page 7 within thirty days. Also on December 24, plaintiff's complaint was deemed filed. Plaintiff subsequently paid a filing fee, and a summons was issued on January 24, 2003. Plaintiff received the summons with a cover letter from the pro se office, stating the following:

You must have the summons and complaint served within 120 days of the date the summons was issued. (This is the date which appears on the summons.) See Rule 4(m) of the Federal Rules of Civil Procedure (which is enclosed for your review).
On May 19, 2003 plaintiff served on defendant the summons and an amended complaint, the latter of which was filed May 22, 2003.


  I. Failure to Effect Timely Service of Process

  The Federal Rules require with respect to service of process that:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). Thus, a complaint served on a defendant more than 120 days after its filing must be dismissed unless plaintiff can show good cause for the untimely service. Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). Page 8

  Here, plaintiff failed to effectuate timely service. The complaint was filed on December 24, 2002, and was served on defendant on May 19, 2002, approximately three weeks late. However, plaintiff has good cause for this failure because instructions from the pro se office indicated that service was timely within 120 days of the date on the summons, which was January 24, 2003. By those instructions, the May 22, 2003 service on defendant was timely. It is true that if plaintiff had referred directly to Rule 4(m) she would have been aware of the actual time limit on service. However, plaintiff is pro se and entitled to reasonably rely on the correspondence she received from the pro se office. See Dourlain v. United States, 01 Civ. 1251, 2003 WL 22753452, at *3 (N.D.N.Y. 2003); Buckley v. Doha Bank, Ltd., 01 Civ. 8865, 2002 WL 1751372, at *3 (S.D.N.Y. Jul. 29, 2002). In any case, defendant has demonstrated no prejudice resulting from the late service.

  Thus, there is good cause to extend the time for service, and plaintiff's complaint is deemed timely served.

  II. Failure to Exhaust Claims Before the EEOC

  In order to pursue claims of discrimination under Title VII and the ADEA in federal court, a plaintiff must first pursue each of her claims in an administrative forum by filing a timely complaint with the EEOC. See Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001). The purpose of this exhaustion Page 9 requirement in the statutory scheme is to give administrative agencies the opportunity to investigate, mediate, and take remedial action prior to a court filing. Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985).

  Courts in this Circuit have recognized, however, that charges of discrimination that were not exhausted before the EEOC may nonetheless be included in a subsequent federal action if they are reasonably related to the charges filed with the agency. See Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). This exception is particularly important when faced with a pro se litigant, whose administrative charges are likely not to resound in the legal framework of a discrimination suit. See Bazile v. City of New York, 215 F. Supp.2d 354, 389 (S.D.N.Y. 2002). A charge is related to a claim brought before the EEOC if the conduct complained of would have fallen within the scope of the investigation that would reasonably be expected to have grown out of the claim that was filed with the EEOC. Fitzgerald, 251 F.3d at 359-60.

  Defendant argues that plaintiff's allegations of age discrimination, religious discrimination, retaliation, and sexual harassment are all beyond the scope of the EEOC charges brought by her.

  With regard to plaintiff's claim of age discrimination, Page 10 plaintiff concedes that this was not alleged in the administrative complaint. Plaintiff argues, however, that the clerk who wrote the complaint informed plaintiff that she was ineligible to bring an age discrimination claim because she was under forty years of age. Plaintiff states that an attorney later informed her that she was in fact eligible to bring such a claim because she was "almost forty years old." As will be discussed in greater detail below, this is inaccurate as a legal matter. Moreover, none of these circumstances changes the fact that this allegation was not exhausted at the administrative level. Because plaintiff did not administratively exhaust her age discrimination charge, the claim is not properly before the Court.

  Similarly, plaintiff did not exhaust a claim of religious discrimination in her administrative complaint. That complaint makes no mention of the fact that plaintiff is Jewish. Nor do the findings of fact in the NYSDHR order dismissing plaintiff's complaint make any mention of religious discrimination or religion generally.

  Plaintiff argues that her allegations of discrimination on the basis of national origin encompassed a religious discrimination claim, and asserts that during interviews with NYSDHR investigators she explained that she was a Russian Jew. Plaintiff also claims that during an interview she related to an Page 11 investigator the incident in which Louie allegedly insinuated that discrimination against Jewish individuals was acceptable.

  Contrary to plaintiff's assertion, national origin discrimination and religious discrimination are, as a rule, conceptually distinct. See, e.g., Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 84 (2d Cir. 2001). The two sets of allegations entail different courses of investigation, with the latter focusing on whether plaintiff, as a Jewish employee, was treated differently from non-Jewish employees. Moreover, even to the extent that religion and national origin discrimination claims may overlap as a factual matter, here there are no factual allegations that would lead the NYSDHR investigators to treat plaintiff's allegations as encompassing religious discrimination. While the findings of the NYSDHR do indicate that treatment of other national groups was investigated — with specific reference to "American, Chinese, and Israeli" employees — no mention is made of other, non-Jewish, religious groups.

  As for the allegation regarding Louie, as stated above, it is not included in plaintiff's administrative complaint, is not discussed in the administrative findings, and even in the context of plaintiff's federal complaint is at best an extremely oblique reference to religious animus. Thus, plaintiff has failed to exhaust her religious discrimination claim at the administrative level, and such claim will not be heard by this Court. Page 12

  As to plaintiff's claim that defendant terminated her in retaliation for her complaints, this allegation is not contained in her administrative complaint. Nor are any of the factual allegations that underlie plaintiff's retaliation theory — including the meeting with McCarty, or the bare fact that plaintiff complained about her employment conditions — contained in the administrative complaint. The NYSDHR findings of fact do not discuss retaliation or plaintiff's allegation that she complained of her treatment.

  As noted above, plaintiff's letter of May 29, 2001 does state that in a meeting with McCarty plaintiff made several complaints about Giordano, her compensation, and other matters. The Court notes that EEOC regulations do allow individuals filing administrative complaints to amend a charge insofar as they "clarify and amplify allegations made" in the original charge or allege additional acts of discrimination "related to or growing out of the subject matter of the original charge." 29 C.F.R. § 1601.12(b). Thus, to the extent that plaintiff's May 29 letter can be deemed an amendment to her original charge within the meaning of § 1601.12(b), it should be considered by this Court. Cf. Holtz, 258 F.3d at 83.

  These allegations cannot be considered an amendment to plaintiff's original charge. The facts alleged by plaintiff in the letter regarding her meeting with McCarty do not appear to Page 13 have any bearing on her original allegations of discrimination on the basis of marital status, national origin, and sex. Nor does the letter's description of the meeting with McCarty reveal that any discriminatory conduct, by Giordano or any other employee, was discussed. Moreover, the section of the letter titled "Preliminary Statement" states that plaintiff was "treated in a discriminatory manner because [she was] a Russian, unmarried female." No mention is made in this section of retaliatory action as an aspect of plaintiff's complaint. It should be noted that the letter was submitted almost two years after plaintiff initially filed her administrative complaint, a fact which in its own right counsels strongly against considering new allegations contained in the letter to have come within the purview of the NYSDHR investigation.

  Thus, to the extent that the allegations contained in the letter could be construed as alleging retaliatory employment action, they constitute a new charge, rather than a clarification or amplification of plaintiff's original charge. Because plaintiff did not exhaust her retaliation claim in her administrative complaint, the claim cannot now be argued before this Court.

  As for plaintiff's sexual harassment claims, it is true that as a general matter making only a generalized allegation of discrimination on the basis of sex would not necessarily put the Page 14 EEOC on notice for investigative purposes of a sexual harassment claim. Spencer v. United Parcel Service, No. 03 Civ. 0574, 2004 WL 362559, at *6 (S.D.N.Y. Feb. 27, 2004); Eaton v. American Media Operations, Inc., No. 96 Civ. 6158, 1997 WL 7670, at *2 (S.D.N.Y. Jan. 9, 1997). Moreover, plaintiff's administrative complaint does not contain factual allegations regarding sexual harassment.

  However, in her May 29, 2001 letter to the NYSDHR, plaintiff alleges that Giordano treated her in a discriminatory and harassing manner because of her refusal to flirt with and date him. The allegations in plaintiff's letter can certainly be construed as encompassing sexual harassment. Moreover, pursuant to 29 C.F.R. § 1601.12 (b), these allegations should be considered clarifications or amplifications of allegations made in plaintiff's original administrative complaint. The most persuasive factor in this regard is the fact that the NYSDHR did in fact investigate plaintiff's claims against Giordano. The order of dismissal states:

  The complainant believed that her supervisor treated her unfavorably because she would not flirt or go out with him. The complainant's supervisor never made any sexual comments to the complainant and never asked him [sic] to go out with him. The complainant never complained of sexual harassment to the respondent. The investigation revealed that the complainant's supervisor gave the complainant a favorable evaluation and considerable raise during the first nine monghts of her employment. During this time the complainant did not date, smile or flirt with her supervisor. Page 15

  Thus, plaintiff's later allegations of sexual harassment by Giordano will be considered by the Court to have amended her initial allegation of disparate treatment because of sex. Plaintiff's sexual harassment claims are deemed administratively exhausted and are properly before this Court.

  III. Applicability of the ADEA

  A federal cause of action for age related employment discrimination under the ADEA is statutorily available only to individuals over forty years of age at the time of the alleged discriminatory action. 29 U.S.C. § 631 (a). It is undisputed that at the time of her termination plaintiff was only thirty-eight years old. Therefore, even if plaintiff had exhausted her age discrimination claim in her EEOC filing, it is clear that the ADEA does not provide plaintiff with a cause of action related to her termination by defendant. See Windsor v. Rockefeller Center/Tishman Speyer, No. 01 Civ. 4374, 2002 WL 1467384 (S.D.N.Y. July 8, 2002).

  IV. Statute of Limitations on the Equal Pay Act

  The Equal Pay Act provides a two-year statute of limitations period, except with respect to allegations of willful violations, which are subject to a three-year limitations period. 29 U.S.C. § 255(a). Because a violation of the Equal Pay Act occurs on each occasion when a plaintiff is compensated in a discriminatory manner, the statute of limitations is calculated based on the Page 16 last paycheck received within the two or three year period. See Pollis v. New School for Social Research, 132 F.3d 115, 119 (2d Cir. 1997). Here, plaintiff seeks recovery for alleged discrimination in compensation that occurred between July 1997 and March 1999. Thus it can be assumed that plaintiff received her last paycheck around March 1999. Even further assuming that the three-year limitations period applies, and treating plaintiff as having commenced this action as early as October 11, 2002, plaintiff's recovery is time-barred under the Equal Pay Act.

  Plaintiff argues that the statute of limitations should be equitably tolled for the period of time that her complaint was under investigation by the NYSDHR and EEOC. However, plaintiff has presented no compelling circumstances as to why this should be the case. Equal Pay Act claims are not required to be administratively exhausted prior to filing suit, so there is no reason why plaintiff could not have filed these claims before the conclusion of the NYSDHR and EEOC investigations into her other claims. See Erickson v. New York Law School, 585 F. Supp. 209, 214 (S.D.N.Y. 1984). Furthermore, the Right to Sue letter received by plaintiff from the EEOC on July 16, 2002 informed her of the statute of limitations on her Equal Pay Act claims, such that plaintiff was on notice at least three months before first filing the instant complaint that the statute of limitations had expired. Therefore, the statute of limitations will not be Page 17 equitably tolled and plaintiff's Equal Pay Act claim must be dismissed.


  Defendant's motion is granted in part and denied in part. Plaintiff's age discrimination, religious discrimination, retaliation, and Equal Pay Act claims are dismissed. Plaintiff's sexual harassment claim is not dismissed.


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