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March 22, 2004.

DIANE A. CARTER, Plaintiff,

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District Page 2



  On June 26, 2002, Plaintiff filed a complaint with this Court against Defendants alleging that, during her employment with Defendants, she was subjected to discrimination based on her sex and race in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. With respect to her sex discrimination claims, Plaintiff contends that she was subjected to a hosfile work environment and quid pro quo sexual harassment in violation of 42 U.S.C. § 2000e-2(a)(1) and unlawful retaliation based on her complaints of sexual harassment in violation of 42 U.S.C. § 2000e-3(a). With respect to her race discrimination claims, Plaintiff asserts that she was subject to disparate treatment and disparate impact race discrimination in violation of 42 U.S.C. § 2000e-2(a)(1) and unlawful retaliation based on her complaints of race discrimination in violation of 42 U.S.C. § 2000e-3(a).

  Presently before the Court is Defendants' motion for summary judgment as to all claims. The Court heard oral argument in support of, and in opposition to, this motion on February 27, 2004, and reserved decision at that time. The following constitutes the Court's written decision with regard to the pending motion.


  Since 1985, Plaintiff, an African-American woman, has worked as an Education of Disadvantaged Program Aide ("EDPA," Salary Grade 14) at the New York State Department of Education ("DOE"). She alleges that, from May, 1995 until May, 1997, her supervisor, New York City Coordinating Group Team Leader James Gaughan, engaged in a pattern of sexual Page 3 discrimination which included quid pro quo and hosfile work environment sexual harassment. More specifically, Plaintiff alleges that Mr. Gaughan publicly demanded kisses and hugs from her, kissed her without permission, denied her travel expenses, restricted her overtime and compensatory vacation time, drafted baseless disciplinary letters and placed them in her personnel file, and conducted bad faith investigations of her work.

  Plaintiff further alleges that the New York State Department of Civil Service ("DSC") denied her certain opportunities for promotion or advancement within the DOE based on her race. She alleges that she scored acceptably on certain Civil Service examinations but received no promotions. Further, she contends that various state agencies named in her complaint misrepresented to her that her position as an EDPA presented promotional opportunities, while it actually is a noncompetitive position that has no promotional possibilities.

  On May 5, 1997, Plaintiff filed an administrative complaint with the New York State Division of Human Rights ("NYSDHR") alleging sexual harassment. On May 16, 1997, DOE Supervisor Shelia Evans-Tranumn transferred Plaintiff to the Child, Family and Community Services office in Albany, New York, effective August 1997. Plaintiff filed additional EEOC complaints in August, 1997 and December, 1998.*fn1 Page 4


 A. Summary Judgment Standard

  A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)). Although discrimination cases often involve a fact-intensive inquiry that precludes summary judgment, a court may award summary judgment where a fact finder could not infer a discriminatory motive. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).

  With these standards in mind, the Court will address each of Plaintiff's claims. Page 5

 B. Jurisdiction

  Title VII imposes an exhaustion requirement that allows federal courts to exercise jurisdiction over a plaintiff's Title VII claims only when the plaintiff has previously presented the claims in her EEOC complaint. See Terry v. Ashcroft, 336 F.3d 128, 150-51 (2d Cir. 2003). However, the exhaustion requirement does not bar federal courts from taking jurisdiction over claims that are "`sufficiently related to the allegations in the [EEOC] charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action[.]'" Id. at 151 (quotation omitted). To meet the "sufficiently related" requirement, a plaintiff must show that (1) the alleged wrongful conduct would fall within the scope of any EEOC investigation that would arise from the plaintiff's EEOC complaint; or (2) the alleged wrongful conduct constitutes an employer's retaliation for the plaintiff's EEOC complaint; or (3) the employer has carried out the alleged wrongful conduct in exactly the same manner alleged in the EEOC complaint. See id. (quoting Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993) (superceded on other grounds)) (other citation omitted).

  Defendants maintain that this Court has no jurisdiction over several of Plaintiff's allegations because her EEOC complaints lacked any factual specificity. To wit, Plaintiff alleges that Mr. Gaughan discriminated against her by refusing to recognize her accrued compensatory time and work-related travel; by directing office staff to route Plaintiff's calls directly to him when she telephoned the office to request sick days; by repeatedly criticizing the quality of Plaintiff's work; and accusing her of abusing travel allowances. Further, Defendants contend that Plaintiff's December 1998 EEOC complaint fails to identify any specific denied promotional opportunity, Page 6 and, therefore, Plaintiff cannot present any claims of promotion denials in her federal court claim.

  In response, Plaintiff contends that she can meet the Butts exception because the NYSDHR actually investigated the majority of her claims, including "hosfile work environment, race discrimination, failure to promote, `time and travel records,' out of title work, retaliatory transfer, kissing, and comp/overtime." See Plaintiffs Memorandum of Law at 10.*fn2

  Plaintiff did claim Mr. Gaughan sexually harassed her in her May, 1997 EEOC complaint. Therefore, the EEOC would reasonably have investigated the working relationship between the two, which could have incorporated the allegations cited. Therefore, Plaintiffs allegations ...

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