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
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
The following facts are taken from the pleadings and the affidavits on
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
salary and bonuses were lower than those of her coworkers and
inadequately reflected her experience and education, owing to her gender
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
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
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
instant complaint contains allegations that plaintiff did not contain in
her administrative charges, the details of those charges will be set
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
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
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).
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
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,
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
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
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
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
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
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
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.
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
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
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
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