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Diprojetto v. Morris Protective Service

June 13, 2007

GENE DIPROJETTO, PLAINTIFF,
v.
MORRIS PROTECTIVE SERVICE, PERRY WHEELER, DIRECTOR OF OPERATIONS, DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

PROCEDURAL HISTORY

Plaintiff Gene DiProjetto ("plaintiff") commenced this action, pro se, against Morris Protective Service ("defendant") alleging race, gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and disability discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112-12117. Plaintiff, an Italian-American, alleges in his complaint that he worked at all relevant times for Monroe County. Defendant provides security services at various County buildings, including at the Health and Human Services Building located at 111 Westfall Road.

Plaintiff alleges that defendant discriminated against him by denying him access to or limiting his access to the premises at 111 Westfall Road. Plaintiff's complaint is not entirely clear, but it appears that he either worked at 111 Westfall Road or met with his union representative there on work-related matters. Plaintiff claims that he was involved in several incidents during the summer of 2005 with security guards employed by defendant. After one such incident, plaintiff was suspended from employment by the County for three days. After several meetings with union representatives and County managers, the County dropped the disciplinary charges and "gave him back" the three days of suspension.

Before the Court is defendant's motion to dismiss, brought pursuant to FED. R. CIV. R. 12(b)(1) and 12(b)(6). For the reasons that follow, defendant's motion is granted, and the complaint is dismissed.

DISCUSSION

Defendant moves to dismiss plaintiff's complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction and FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In the context of a Rule 12(b)(1) motion, plaintiff has the burden of establishing the existence of subject matter jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). The Court must accept as true all material factual allegations in the complaint, and can consider evidence outside the pleadings. See Makarova, 201 F.3d at 113.

On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief may be granted, the Court should grant the motion only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In ruling on such a motion, the Court must read the plaintiff's complaint generously, drawing all reasonable inferences from the complaint's allegations, Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993), and accepting "the material facts alleged in the complaint as true." Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991).

Where the plaintiff is proceeding pro se, the Court must "read the pleadings ... liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999) (quotations omitted). Nevertheless, the liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleading are not absolutely suspended." Stinson v. Sheriff's Dep't of Sullivan County, 499 F.Supp. 259, 262 (S.D.N.Y.1980).

I agree with defendant that plaintiff's discrimination claims based on race, gender and disability must be dismissed for failure to exhaust administrative remedies. Plaintiff filed a charge of discrimination with the State Division of Human Rights on October 14, 2005, in which he alleged national origin discrimination only. Plaintiff's charge was also filed with the Equal Employment Opportunity Commission ("EEOC").

The State Division determined after an investigation and review of evidence from both parties that there was no probable cause to believe that defendant engaged in unlawful discrimination. The State Division also concluded that there was no evidence that plaintiff was employed by defendant. It also found that there was insufficient evidence that defendant discriminated against plaintiff because he is Italian-American or that he was denied access to 111 Westfall Road based on his national origin/ancestry. See State Division Determination and Order, attached to Dkt. #1. On March 27, 2006, the EEOC adopted the findings of the State Division and issued plaintiff a right-to-sue letter. Plaintiff thereafter commenced this action alleging not only national origin discrimination, but also race, gender and disability discrimination.

In general, a plaintiff may bring an employment discrimination action under Title VII or the ADA only after filing a timely charge with the EEOC or with "a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e); see also 42 U.S.C. § 12117(a). Although "[e]xhaustion is ordinarily 'an essential element'" of a Title VII or ADA claim, the Second Circuit has held that "[c]laims not raised in an [administrative] complaint ... may be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.2006) (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.2001), and Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.1993)).

"A claim raised for the first time in the district court is 'reasonably related' to allegations in an EEOC charge 'where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir.2001) (quoting Butts, 990 F.2d at 1402).*fn1 This exception to the exhaustion requirement "'is essentially an allowance of loose pleading' and is based on the recognition that 'EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering.'" Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Butts, 990 F.2d at 1402). "The central question is whether the complaint filed with the EEOC gave that agency 'adequate notice to investigate discrimination [of the type alleged in the civil complaint].'" Williams, 458 F.3d at 70 (quoting Deravin, 335 F.3d at 202).

I find that plaintiff's race, gender and disability discrimination claims must be dismissed for failure to exhaust administrative remedies. Plaintiff did not allege these claims in his administrative complaint. There is nothing in the record to suggest that the State Division or EEOC would have been put on notice of these claims. Accordingly, these claims are dismissed. Wilson v. Family Dollar Stores, No. 06-CV-639, 2007 WL 952066 (E.D.N.Y. Mar. 29, 2007) ("there is nothing in the record that suggests that the EEOC could reasonably have been expected to investigate claims of race, color and religious discrimination based on [plaintiff's] administrative complaint."); Joseph v. Am. Works, Inc., 01 Civ. 8287, 2002 WL 1033833 at *5-6 (S.D.N.Y. May 21, 2002) (ADA claim dismissed for failure to exhaust administrative remedies where plaintiff asserted only Title VII claims in her EEOC complaint); Coleman v. Bd. of Educ., No. 96 CIV. 4293, 2002 WL 63555 (S.D.N.Y. Jan. 16, 2002) (gender discrimination claim not ...


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