United States District Court, W.D. New York
November 8, 2004.
LORA E. POUND, Plaintiff,
AMERICAN RED CROSS BLOOD SERVICES NY Penn Region, Defendant.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Lora Pound, commenced this action pro se against
her former employer, defendant, American Red Cross Blood
Services, New York-Penn Region, alleging gender discrimination in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Plaintiff, a former Account Manager with
defendant, contends that defendant discriminated against her and
other female employees by implementing a work production quota
that adversely affected the terms and conditions of employment.
She also alleges defendant terminated her in retaliation for
complaining of discrimination.
Before the Court is defendant's motion to partially dismiss
plaintiff's complaint. (Dkt. #3). Defendant argues that some of
plaintiff's claims are untimely and that others were not
exhausted through administrative channels. Defendant's motion is
granted in part and denied in part.*fn1 DISCUSSION
Pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-5(e), a plaintiff in New York state must file an
administrative charge of discrimination within 300 days of the
alleged unlawful conduct. Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002). This requirement acts as a statute of
limitations to bar claims based on discrete acts of
discrimination that fall outside of the 300-day period. Id.
Plaintiff filed an administrative charge with the EEOC on March
16, 2004. She filed a subsequent charge on May 14, 2004,
following her termination. (Dkt. #1, attachments). To the extent
that plaintiff's complaint alleges discrete acts of
discrimination that occurred before May 21, 2003 (300 days before
the March charge was filed), defendant's motion is granted.
However, defendant's blanket request to dismiss all
allegations in plaintiff's complaint that precede May 21, 2003 is
denied. It would be unwise to sweep with such a broad brush at
this early stage of the proceedings. Plaintiff's claims do not
necessarily allege specific, discrete acts of discrimination. To
the contrary, plaintiff's complaint states that in July 2001
defendant implemented a work production quota that adversely
affected the terms and conditions of employment (including salary
and bonuses) of female employees. She claims this practice
continued through her April 2004 termination.
These allegations could be read to allege a discriminatory
policy or practice of the defendant, in which case the so-called
continuing violation exception may apply. "`Under the continuing
violation exception to the Title VII limitations period, 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.'" Patterson v. County of Oneida, 375 F.3d 206, 220 (2d
Cir. 2004) (quoting Lambert v. Genesee Hospital, 10 F.3d 46, 53
(2d Cir. 1993)).
Here, plaintiff's alleges in her complaint at least one timely
act that took place in September 2003 in furtherance of that
policy, which is well within the 300-day time period. Therefore,
if her claim is based on a discriminatory policy or practice,
then it may be timely even though the practice began prior to May
21, 2003. Id.; see also Cornwell v. Robinson, 23 F.3d 694,
703-04 (2d Cir. 1994).
Defendant failed to address the continuing violation exception
in its motion. Given the early stage of these proceedings,
prudence dictates against defining the contours of plaintiff's
allegations of discrimination based solely on her pro se form
complaint and without the benefit of discovery. It may be that
after further development, plaintiff's allegations regarding the
production quota do not amount to a policy or practice and that
all claims prior to May 21, 2003 would be untimely.*fn2 That
cannot be determined on this motion to dismiss, however.
Therefore, defendant's motion to dismiss as time-barred any and
all claims that may have arisen prior to May 23, 2003 is denied
at this time.*fn3
II. Exhaustion of Administrative Remedies
I agree with defendant that certain claims asserted by
plaintiff in her form complaint must be dismissed because they
were not raised during the administrative proceedings. A
plaintiff may bring a claim of discrimination in federal court
under Title VII only after filing a timely charge of
discrimination with the EEOC raising that particular claim.
Holtz v. Rockefeller & Co., 258 F.3d 62, 82-83 (2d Cir. 2001).
The purpose of the requirement is to give the administrative
agency the opportunity to investigate, mediate and take remedial
action with respect to the allegations of discrimination. Claims of discrimination not raised in, or
reasonably related to, the charge filed with the EEOC cannot be
asserted for the first time in district court. Legnani v.
Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001)
("Exhaustion of administrative remedies through the EEOC is `an
essential element' of the Title VII . . . statutory scheme and,
as such, a precondition to bringing such claims in federal
Defendant correctly notes that plaintiff failed to raise claims
that defendant failed to accommodate her, failed to promote her,
and harassed her in her administrative charge. Nor did plaintiff
raise a disability discrimination claim with the EEOC. Although
plaintiff checked boxes on her form complaint complaining of such
acts, these issues clearly were not asserted in either of
plaintiff's EEOC charges. Moreover, these claims cannot be said
to be reasonably related to the charges of discrimination that
were raised and investigated by the EEOC, namely the work
production quotas and defendant's reasons for terminating
plaintiff. The findings of the EEOC investigation did not address
accommodation, promotion, sexual harassment or hostile work
environment. Therefore, defendant's motion to dismiss claims in
the complaint based on disability discrimination, failure to
accommodate, failure to promote, and harassment is granted.
III. Breach of the Previous Settlement Agreement
In response to defendant's motion, plaintiff filed a sur-reply.
(Dkt. #8). She states that, prior to filing two charges of
discrimination with the EEOC in 2004, she filed a previous charge
of discrimination against defendant in April of 2002. This charge
appears to have been resolved between the parties through
negotiation with the EEOC and resulted in a written settlement
agreement dated June 20, 2002. Plaintiff asks the Court to review
her April 2002 charges and the settlement agreement and to
include them as part of her current claim against defendant. She
states that "since the original agreement was not adhered to all
actions concerning it and what came after should be looked at. . . .
Because of their lack of follow through, their underhanded
actions, and the original unresolved EEOC charges dating back to
2002 I ask the Court to include it all." (Dkt. #8). It is unclear whether plaintiff wants to use her first charge
of discrimination and defendant's actions regarding the 2002
agreement as evidence in support of her current claims of
discrimination, or whether plaintiff wants to amend her complaint
to add a separate claim against defendant for breach of the June
2002 settlement agreement.
Plaintiff in a discrimination action may use time-barred
actions of a defendant as background evidence in support of her
current claims of discrimination, provided that evidence is
relevant and otherwise admissible. See Morgan, 536 U.S. at 113.
Therefore, even a finding that some of her claims are time-barred
will not preclude her from seeking to admit prior acts of
defendant as evidence in support of timely claims.
If plaintiff seeks to amend her complaint to add a claim that
defendant breached the settlement agreement, she must do so by
December 8, 2004. Defendant has not filed an answer yet and,
therefore, plaintiff may amend her complaint as of right. FED. R.
CIV. P. 15(a). I make no findings as to whether plaintiff can
prevail on that claim, whether that claim is timely, or whether
plaintiff has exhausted (or is even required to exhaust) her
Defendant's motion to dismiss (Dkt. #3) is granted in part and
denied in part, as follows:
Defendant's motion to dismiss as untimely discrete
acts of discrimination that occurred before May 21,
2003 is granted;
Defendant's motion to dismiss as untimely any other
claims of discrimination that occurred before May 21,
2003 based on a policy or practice of discrimination
is denied; Defendant's motion to dismiss claims in the
complaint based on disability discrimination and
defendant's alleged failure to accommodate, failure
to promote, and harassment is granted based on the
failure to exhaust administrative remedies.
If plaintiff intends to amend her complaint to add a claim that
defendant breached the June 2002 settlement agreement, she must
do so by December 8, 2004.
IT IS SO ORDERED.