The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Adrianne Cronas brings this employment discrimination class action against her former employer Willis Group Holdings, and its affiliated entities (collectively, "Willis"). Plaintiff alleges a pattern and practice of sex discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2 et seq. ("Title VII"), and related state and city laws. Defendants move to dismiss plaintiff's Title VII claims, arguing that plaintiff has not satisfied the administrative requirements for maintaining a Title VII claim, or alternatively, that plaintiff's discrimination claims are subject to mandatory arbitration. Defendants' motion will be denied.
Only the facts relevant to the current dispute are recited here.
Cronas was hired by Willis in September 1996 as a Vice-President in the New York office. (Compl. ¶ 28.) When she was hired, Cronas signed an employment agreement (the "Agreement"), which stated that "any dispute arising under th[e] Agreement shall be resolved by arbitration." (Herbst Decl. Ex. 4, at ¶ 5.) In 1999, Cronas was promoted to the position of Senior Vice-President and Manager of the New York Environmental Department. (Compl. ¶ 33.) The complaint alleges that Cronas received positive feedback and several raises throughout most of her tenure at Willis (id. ¶¶ 38, 43), though she did not receive certain stock options that were offered to other similarly situated male employees (id. ¶ 42). However, in March 2004, Cronas was demoted, and in June 2004, she was terminated and replaced by a man who was compensated at a higher salary. (Id. ¶¶ 45-46.)
After she was terminated, Cronas did not file a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Instead, Cronas attempted to intervene as a named plaintiff and class representative in Hnot v. Willis Group Holdings Ltd., et al., 01 Civ. 6558 (GEL) ("Hnot"), a pending Title VII class action alleging a pattern and practice of gender discrimination by Willis. See Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476 (S.D.N.Y. 2005). The Hnot plaintiffs contend that Willis delegates substantial authority regarding promotion and compensation decisions to regional and local officers, leading to inequitable consequences for women at Wills. Id. at 479-80. The Hnot class was certified to include women of "officer-level and equivalents," but covers only persons employed by Willis through December 31, 2001. Id. at 480. Thus, the Hnot claims do not include, and the parties did not conduct discovery on, allegations of post-2001 discriminatory conduct. See Hnot v. Willis Group Holdings Ltd., No. 01 Civ. 6558, 2006 WL 2381869 (S.D.N.Y. Aug. 17, 2006) (denying extension of discovery and class period through 2004).*fn1
On November 30, 2006, the Court denied Cronas's motion to intervene in Hnot. 2006 WL 3476746. The Court determined that Cronas's motion was untimely, and found that permitting intervention at such a late juncture in the case would "prejudice" the defendants by "further delay[ing] resolution of the pre-2002 claims pending against them." Id. at *5. Although Cronas argued that denying the motion would cause her "significant prejudice" because she would be "unable to demonstrate continued gender discrimination after 2001, and to prove up her damage in under-compensation after 2001," the Court rejected that argument, as Cronas "remain[ed] free to bring a separate action against defendants." Id.
On December 19, 2006, Cronas filed the instant action, alleging a pattern and practice of gender discrimination and retaliation at Willis. Specifically, Cronas alleges that Willis "permits . . . excessive subjectivity in making" employment decisions, which results in a "disparate impact on female offices and officer-equivalents." (Compl. ¶ 23.) Cronas seeks to certify a class consisting of all current and former female officers or officer-equivalents employed from 1998 to the time of trial pursuant to Fed. R. Civ. P. 23(b)(3), and a class consisting of all current and former female officers or officer-equivalents employed from 2002 to the time of trial pursuant to Fed. R. Civ. P. 23(b)(2). (Id. ¶ 20.) In addition, Cronas asserts individual claims on her own behalf, alleging that her demotion and termination were the result of unlawful gender discrimination. (Id. ¶¶ 79-84.)*fn2
Although the substantive allegations of Cronas's pattern and practice claim are almost "identical" to those in the Hnot litigation (Pl. Mem. 4), her claim differs from the Hnot claim in two ways. First, while the Hnot litigation was limited to allegations of discrimination spanning the years 1998-2001, Cronas seeks relief for the period 2002 up to the time of trial, and certification of class claims for the entire period 1998 through the present. (Compl. ¶ 20.) Second, Cronas alleges discrimination in compensation related to the distribution of stock options at Willis, a claim that was not pursued by the Hnot plaintiffs. (Id. ¶ 42. See Pl. Mem. 5 (stating that, "upon information and belief, no data have been produced in Hnot on stock options awards during the class period").)
Defendants moved to dismiss plaintiff's complaint on February 6, 2007; plaintiff responded on March 21, 2007. The motion was fully briefed as of April 2, 2007.
I. Failure To Satisfy Title VII Administrative Prerequisites
A. The Single-Filing Rule
Defendants argue that, because Cronas failed to file a timely charge of discrimination with the EEOC, her Title VII claims must be dismissed as time-barred. Plaintiff argues that she should be permitted to "piggyback" on the timely charge filed by the Hnot plaintiffs pursuant to the so-called single-filing rule, thereby satisfying the administrative prerequisites of Title VII. Although the single-filing rule has not been previously applied to allow Title VII plaintiffs to piggyback on a prior charge in a new Title VII suit, the Court finds that such an application is proper here. Therefore, plaintiff's Title VII claims are not time-barred, and defendants' motion will be denied.
It is axiomatic that "[a] Title VII claimant may file suit in federal court only if she has filed a timely complaint with [the] EEOC and obtained a right-to-sue letter." Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994), citing 42 U.S.C. §§ 2000e-5(e) and (f). See Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 82 (2d Cir. 2001) (requiring a Title VII claimant to file an administrative charge within 300 days of the alleged discriminatory conduct); Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred."). As a general rule, however, Title VII's administrative prerequisites must be interpreted liberally to effectuate its purpose of eradicating employment discrimination. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397 (1982). Fairness, and not excessive technicality, must guide the consideration of Title VII actions. Love v. Pullman Co., 404 U.S. 522, 526-27 (1972). Accordingly, the Supreme Court has held that Title VII filing requirements are not jurisdictional prerequisites and may be waived or tolled where equity requires. Zipes, 455 U.S. at 398. However, the courts must give substance to the underlying purpose of the filing procedures to convey "'prompt notice to the employer,' thereby encouraging conciliation wherever possible." Snell v. Suffolk County, 782 F.2d 1094, 1101 (2d Cir. 1986), quoting Zipes, 455 U.S. at 398.
With these principles in mind, the Second Circuit has adopted the "single-filing" rule.
Under the single-filing rule, plaintiffs in class action discrimination suits have been allowed to "piggyback" their otherwise untimely claims on to those of timely filed named plaintiffs. Snell, 782 F.2d at 1101-02; Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir. 1990) (extending single-filing rule to Age Discrimination in Employment Act ("ADEA") claims). Thus, a plaintiff who has never filed an EEOC charge, and therefore has never given notice of her discrimination complaint to either the employer or the EEOC, can still litigate her claims so long as they fall "within the scope" of the timely filed claims. Dargento v. Bally's Holiday Fitness Ctrs., 990 F. Supp. 186, 193 (W.D.N.Y. 1997), citing Snell, 782 F.2d at 1100-1101. The Circuit has applied the single-filing rule to both class and individual actions, finding that the relevant inquiry for application of the rule is not the type of action involved, but whether "the grievance affects a group of individuals defined broadly enough to include those who seek to piggyback on the claim," in order to "afford sufficient notice to the employer to explore conciliation with the affected group." Tolliver, 918 F.2d at 1058.
Until now, the single-filing rule has been applied to Title VII actions only to allow subsequent claimants to join in a pre-existing action, and not to "permit non-filing Title VII plaintiffs to initiate their own actions." Little v. NBC, 210 F. Supp. 2d 330, 373 n.30 (S.D.N.Y. 2002). However, in the ADEA context, the Circuit has found that subsequent claimants are not relegated to joining a pre-existing action under the single-filing rule, but instead may take advantage of a prior charge as a predicate for filing their own separate suit. Tolliver, 918 F.2d at 1057. In permitting ADEA plaintiffs to piggyback on a prior charge in a new suit, the Tolliver court found that "[t]he purpose of the charge filing requirement is fully served by an administrative claim that alerts the EEOC to the nature and scope of the grievance, regardless of whether those with a similar grievance elect to join a pre-existing suit or initiate their own." Id. The Tolliver also court found that, although the single-filing rule had not previously been applied in a similar manner to new cases initiated under Title VII, there was a distinction between ADEA and Title VII suits because Title VII claimants may only initiate suit after obtaining a right-to-sue letter, while "[t]here is no comparable requirement for ADEA suits and therefore no reason to require ADEA plaintiffs seeking to benefit from the single filing rule to join pre-existing individual suits." Id.
In this case, plaintiff seeks to initiate a new Title VII lawsuit while piggybacking on the Hnot EEOC charge in order to render her claim timely. Defendants argue that, because the Tolliver court distinguished between Title VII and ADEA claims, plaintiff cannot use the single-filing rule to render her claims timely. Defendants read too much into Tolliver. The Tolliver court held only that "[i]t is true that under Title VII, the single filing rule has been used only to permit [a plaintiff to] join a pre-existing suit." Id. (emphasis added). Notably, the Tolliver court distinctly did not hold that the single filing rule could never be used to permit a plaintiff to initiate a new lawsuit. Nor, indeed, could it have so held, since the issue was not before the Circuit, which was addressing an action under the ADEA, not under Title VII. Instead, the Circuit merely noted in dicta that the single-filing rule has not yet been so applied to Title VII suits, and posited the right-to-sue letter requirement as the rationale for its heretofore non-application. In effect, the Court of Appeals held that even if Title VII did not permit a plaintiff to predicate ...