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McIntosh v. Bank of America

September 4, 2009

JITKA MCINTOSH, PLAINTIFF,
v.
BANK OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #15.

Currently before the Court is defendant's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint in so far as it claims disability, age and sex discrimination for failure to exhaust administrative remedies. Dkt. #5. For the reasons set forth below, defendant's motion is granted.

BACKGROUND

Plaintiff was born in the Czech Republic and entered the United States in 1990. Dkt. #1, p.7, ¶ 9. She began employment with the defendant as a Sales Associate in October, 2002. Dkt. #1, p.8, ¶ 11. Plaintiff became a United States citizen on April 3, 2003. Dkt. #1, p.7, ¶ 9.

On April 28, 2005, plaintiff expressed her intention to transfer to another Bank of America office. Dkt. #1, p.8, ¶ 14. Plaintiff alleges that she "decided to relocate because of Defendant's hostile brutality, for not being treated equally compared to American-born citizens (both whites and African-Americans), and also because of Plaintiff's health condition which worsens in the winter." Dkt. #1, p.8, ¶ 14. Plaintiff's manager allegedly responded to plaintiff's interest in a transfer by asking, "Why don't you move back to your old country?" Dkt. #1, p.8, ¶ 15. Subsequently, plaintiff's manager began to write her up "for ridiculous reasons." Dkt. #1, p.8, ¶ 17.

On March 23, 2006, plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights ("NYSDHR"). 06-CV-708 at Dkt. #1. On July 24, 2006, plaintiff received a Dismissal and Notice of Rights from the Equal Employment Opportunity Commission ("EEOC"). 06-CV-708 at Dkt. #1, p.9. Plaintiff commenced suit on October 24, 2006, alleging violation of Title VII of the Civil Rights Act of 1994 ("Title VII"), as amended, 42 U.S.C. § 2000(e) et seq, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112 et seq. 06-CV-708 at Dkt. #1. Plaintiff complained that because of her sex, national origin and disability, she was denied promotion and reasonable accommodations and that she was harassed and retaliated against for complaining about discrimination and harassment directed at her and toward others. 06-CV-708 at Dkt. #1.

Plaintiff was terminated from her employment on January 2, 2007. Dkt. #1, p.8, ¶ 11. On March 9, 2007, plaintiff filed a second Charge of Discrimination with the NYSDHR alleging discrimination based on national origin and retaliation. Dkt. #1, p.19. Specifically, plaintiff alleged that on June 19, 2006, shortly after she filed her original charge with the EEOC, she received a Final Written Counseling based upon factually untrue allegations and that she received another unwarranted Final Written Counseling on December 5, 2006, shortly after filing her lawsuit with respect to the original charge. Dkt. #1, p.19. Plaintiff alleged that her termination was based upon her failure to meet the unrealistic requirements set forth in the December 5th Final Written Counseling. Dkt. #1, pp.19 & 21. Plaintiff indicated her belief that defendant treated her in this manner because she was "from the Czech Republic and in retaliation for complaining about discrimination, filing a previous EEOC Charge and filing a federal lawsuit alleging discrimination." Dkt. #1, p.21.

On November 5, 2007, plaintiff amended her second Charge of Discrimination "to include sex and age bases." Dkt. #1, p.16. Plaintiff also checked off the box relating to discrimination based upon disability. Dkt. #1, p.16. Specifically, plaintiff alleged that she believed she was discriminated [sic] based on my sex, female, because women tend to get sick more than men and can get pregnant. I also believe age was a factor because when I was discharged, the Respondent told me [sic] was "worn out" with respect to my sales.

I believe I was treated in the above manner based on my sex, female; my age, 44, because I am from the Czech Republic and in retaliation for complaining about discrimination, filing a previous EEOC Charge and filing a federal lawsuit alleging discrimination. This is in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act, respectively.

Dkt. #1, p.18.

The EEOC issued a Notice of Right to Sue (Conciliation Failure), dated May 9, 2008, stating that it "found reasonable cause to believe that violations of the statute(s) occurred with respect to some or all of the matters alleged in the charge but could not obtain a settlement with the Respondent that would provide relief for you." Dkt. #1, p.27.

Plaintiff commenced this action pro se on July 7, 2008, using the Court's Discrimination Complaint Form for Pro Se Litigants. Dk.t #1. Plaintiff alleges employment discrimination on the basis of sex and national origin, in violation of Title VII; age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § § 621 et. seq.; and disability, in violation of the ADA. Dkt. #1. Plaintiff complains that she was denied promotion, denied reasonable accommodations, terminated, harassed on the basis of her sex, denied equal terms and conditions of employment and retaliated against for complaining about defendant's discrimination and harassment. Dkt. #1.

Attached to the Court's Discrimination Complaint Form for Pro Se Litigants is a "Discrimination Complaint" which appears to repeat the allegations and causes of action set forth in the Court's Discrimination Complaint Form for Pro Se Litigants but also appears to assert a claim for relief ...


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