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Keener v. Bell Atlantic-New York

December 19, 2006

WILLIAM H. KEENER, JR., PLAINTIFF,
v.
BELL ATLANTIC--NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

INTRODUCTION

Plaintiff commenced this action with the filing of a complaint on May 16, 2006. Item 1. In it, he alleged that he was subjected to racial discrimination and was terminated from his employment on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) and the New York State Human Rights Law, New York Executive Law § 290, et seq. ("NYSHRL").

On July 17, 2006, defendant Bell Atlantic--New York filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Item 9. Plaintiff filed a response to the motion on September 15, 2006. Item 16. Thereafter, defendant filed a reply on September 29, 2006. Item 17. The court has determined that oral argument is unnecessary. For the reasons that follow, the defendant's motion to dismiss is granted.

FACTS

In his complaint, plaintiff, an African-American male, alleges that he was hired by defendant in a temporary capacity in 1997, and then was hired permanently as an administrative assistant on March 2, 1998. Item 1, ¶¶ 13-15. Plaintiff alleges that from the time he was hired permanently in 1998, he was subjected to a hostile work environment on the basis of his race and gender. Id., ¶ 19. Specifically, plaintiff alleges that he was subjected to "offensive statements and gestures by his co-workers and immediate supervisors and unjustified and unduly harsh disciplinary actions by his supervisors." Id., ¶ 20.

Plaintiff alleges that he was also subjected to disparate treatment on the basis of his race and gender. Item 1, ¶ 27. He states that on April 16, 1998, he notified defendant's Ethics and Compliance Officer of the harassment he endured. Id., ¶ 31. Plaintiff further alleges that on April 21, 1998, he was disciplined on the unfounded accusation that he allegedly slept during a training session and was suspended for three days. Id., ¶¶ 32-34. Additionally, following a meeting with plaintiff's third-level manager in May 1998, plaintiff alleges that the hostile work environment intensified. Id., ¶ 38.

Plaintiff alleges that he was again falsely accused of sleeping on the job, and was suspended for three days in August 1998. Item 1, ¶ 52. On August 18, 1998, plaintiff was accused of being combative and abusive, and was discharged on August 28, 1998. Id., ¶¶ 54-55.

Attached to the complaint as Exhibit A, plaintiff has included his charge of discrimination filed with the New York State Division of Human Rights ("SDHR") on September 4, 1998 and cross-filed with the Equal Employment Opportunity Commission ("EEOC"). In it, plaintiff complained that he was subjected to a hostile work environment, including offensive remarks and gestures. Plaintiff stated that he complained to his District Manager, but the hostile environment was not corrected. Additionally, plaintiff complained that he was subjected to unwarranted discipline which culminated in his termination. Plaintiff charged defendant "with an unlawful discriminatory practice relating to employment by subjecting me to a racially hostile environment and by terminating my employment because of my race/color and sex . . ." Item 1, Exh. A.

Following the filing of the charge, the SDHR investigated and found probable cause to believe that defendant had engaged in unlawful behavior. On November 9, 2005, the SDHR dismissed the complaint on the grounds of administrative convenience, as plaintiff intended to pursue his remedies in federal court. Item 1, Exh. B. Plaintiff alleges three causes of action pursuant to Title VII and the NYSHRL--hostile work environment, disparate treatment, and retaliation.

DISCUSSION

Defendant seeks dismissal of all claims brought under the NYSHRL as they are time-barred, and dismissal of plaintiff's retaliation claim for failure to exhaust administrative remedies. Plaintiff concedes that his claims under the NYSHRL are untimely. Item 16, p.

2. Accordingly, the court grants the defendant's motion to dismiss with respect to the NYSHRL claims.

Defendant also argues that plaintiff failed to exhaust his administrative remedies, in that his original charge to the SDHR and EEOC did not apprise the agencies that plaintiff intended to bring a claim for retaliation. Plaintiff argues that the factual allegations in his charge put the agencies on notice of a possible retaliation claim.

In order to properly exhaust administrative remedies for a Title VII claim, a plaintiff must file a charge within 300 days of the alleged discriminatory treatment. See 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d) and 633(b). A district court has jurisdiction to hear only Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge that is "reasonably related" to that alleged in the EEOC charge. See Butts v. City of New York Dept. of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir.1993). An uncharged claim is "reasonably related" to conduct alleged in an EEOC complaint where (1) the claim would fall within the reasonable scope of the EEOC investigation; (2) the employee alleges retaliation by an ...


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