The opinion of the court was delivered by: Platt, District Judge
Before the Court is a motion to dismiss the complaint filed in the action under Docket 05-CV-4895 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant asserts that the complaint should be dismissed in its entirety on the ground of res judicata because a prior decision of this Court in the action under Docket 02-CV-60 granted Defendant partial summary judgment, or alternatively, because the Plaintiff's claim goes beyond the scope of the EEOC charge on which it is predicated. Plaintiff argues that her prior action did not assert the claims for sex discrimination and retaliation that she asserted in her second action; alternatively, she requests leave to amend the complaint in her prior action, which is now trial-ready.
For the following reasons, Defendant's motion to dismiss the complaint in Docket 05-CV-4895 is GRANTED IN PART and DENIED IN PART; Plaintiff's alternative request for leave to amend is GRANTED IN PART and DENIED IN PART.
Joanne Humbles ("Humbles" or "Plaintiff"), a black woman, was employed by Reuters America, Inc. ("Reuters" or "Defendant") from 1998 to 2001. On January 4, 2002, she filed a complaint against her erstwhile employer and various individual defendants, (collectively "Defendants"), asserting federal and State law claims for unlawful discrimination, retaliation, a hostile workplace environment, the intentional infliction of emotional distress, breach of contract and conspiracy. These claims related to her employment up to and including receipt of severance pay in connection with her termination by Defendant in or around May 2002. This action was docketed by the Court under docket number 02-CV-60 ("Humbles I").
Following discovery and three amendments to the complaint in Humbles I, Defendants moved for summary judgment on Plaintiff's third amended complaint, which Defendants characterized as "alleging discrimination on the basis of race (Black) and gender (female) . . . ." (Defs.' Mem. Summ. J. at 1). A perusal of the third amended complaint, however, reveals that Plaintiff did not assert any causes of action alleging sex discrimination, although she did refer to herself as a "black female" and make reference to a racially and sexually offensive email "joke." Subsequent to the filing of Humbles I, on March 1, 2002, Plaintiff filed an administrative charge (the "Charge") with the New York State Division of Human Rights ("SDHR" or "EEOC") in which she alleged discrimination based on race, sex, and retaliation. Based upon this Charge, Defendants argued in connection with their motion for summary judgment that there was "no apparent federal predicate for Humbles' gender discrimination claim, which appears to be based only on the New York Executive Law." (Defs.' Mem. Summ. J. at 1). Defendants further stated that they waived any procedural bars to the disposition of all of Humbles' claims in that proceeding.
Rather than asserting that any claim Plaintiff may have on the basis of her sex was not properly before the Court, Plaintiff defended on the merits the motion for summary judgment with respect to claims of sex discrimination or sexually-based hostile work environment. Plaintiff stated that she "further alleges a violation of the New York State Human rights [sic] Law based on her sex and race . . . ." (Pl.'s Opp. Mem. Summ. J. at 1). Based upon this misleading representation, the Court included in its Memorandum and Order on the summary judgment motion a very brief analysis of Plaintiff's claims of sex discrimination, concluding that Plaintiff had offered no evidence whatsoever of having suffered any such discrimination. Hence, the Court granted Defendants summary judgment on any purported claims on the basis of sex. See Memorandum and Order, dated Sept. 30, 2004, at 11 (the "Order").
Subsequent to the entry of the Order, Plaintiff did nothing whatsoever to correct the Court's apparent misapprehension of the charges alleged in Plaintiff's third amended complaint. Humbles I is now trial-ready and is scheduled for a pre-trial status conference on September 15, 2006. The remaining claims before the Court in that action are claims of racial discrimination and retaliation against Reuters, and of retaliation against two individual defendants, Todd Jost ("Jost") and Bill Boecker ("Boecker").
II. Humbles II (05-CV-4895)
As noted above, on March 1, 2002, Plaintiff filed the Charge with the SDHR, alleging discrimination on account of sex, race, and retaliation. After Defendants' counsel corresponded with the SDHR and informed the SDHR that Humbles I was pending in this Court, the SDHR advised that it would not investigate the Charge and would await the conclusion of Humbles I. By letter dated September 13, 2002, Plaintiff's counsel objected to the SDHR's determination and argued that the "charge raises issues of sex discrimination which were not presented in the lawsuit and that these alleged incidents are not the same as those referenced in the complaint." (Gilliam Aff., Ex. D). An examination of the Charge reveals that other than checking the box for "Sex" and stating that defendants "engaged in a continuous pattern and practice of racial and sex discrimination in the workplace," the allegations contained in the Charge and Plaintiff's complaint in Humbles I are essentially the same. (Briton Aff., Ex. B).
On October 19, 2005, Plaintiff filed her second action, naming Reuters as the sole defendant and asserting claims for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (the "Civil Rights Act"). This action was docketed by the Court under docket number 05-CV-4895 ("Humbles II"). The allegations in Humbles II fall into two general categories. Specifically, Plaintiff identifies two substantive claims under the Civil Rights Act: (i) that Defendant engaged in differential treatment of male and female employees concerning promotions and pay ("promotion and pay claims"); and (ii) that Defendant treated male employees with less seniority more favorably in terms of their being retained and Plaintiff's being terminated ("retention claims"). (Pl.'s Opp. Mem. Dismiss at 11). With respect to the latter allegation, Plaintiff alleges that she only learned of this information on August 2, 2005, despite numerous requests for the information throughout 2005. (Pl.'s Opp. Mem. Dismiss at 2). Plaintiff acknowledges, however, that the information which forms the basis of her retention claims is the only information that she did not have available to her prior to litigating the summary judgment motion in Humbles I. (Pl.'s Opp. Mem. Dismiss at 11).
Reuters now moves to dismiss Humbles II. Defendant's primary argument is that the Court has previously considered and decided a motion for summary judgment concerning Plaintiff's claims on the basis of her sex. Defendant directs the Court to the Order, which granted Defendants partial summary judgment, as well as Plaintiff's attempt to defend her claim of sex discrimination on the merits. Plaintiff argues in response that Humbles I did not assert claims for sex discrimination or retaliation; and if the Court determines that dismissal of Humbles II is warranted on this ground, Plaintiff should be granted leave to amend her complaint in Humbles I.
Defendant further argues that the claims asserted in Humbles II were not included in Plaintiff's EEOC charge and are not reasonably related to the allegations contained therein. Plaintiff disputes Defendant's assertion that her sex claims were not raised in the Charge and thus outside of its scope. She contends that these claims are reasonably related to the Charge, which makes reference to a continuing pattern of differential treatment.
As will be explained below, Plaintiff's failure to correct the Order is fatal to the promotion and pay claims she attempts to assert in Humbles II and warrants dismissal of any claim based upon Defendant's alleged conduct up to and including her termination. Nonetheless, Plaintiff's failure in this regard does not prevent her from asserting the retention claims, which she asserts she only learned of subsequent to the Court's Order.
I. Applicable Legal Standards
Rule 12(b)(6) permits both partial and complete dismissal for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss a complaint for failure to state a claim, the Court must assume as true all allegations contained in the complaint and assess only whether Plaintiffs have pled claims on which they are entitled to discovery. ...