The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters, including hearing and disposition of all non-dispositive motions. Dkt. #13.
Currently before the Court is defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking dismissal of plaintiff's claims for sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), and the New York State Human Rights Law ("NYSHRL"), on the ground that plaintiff failed to timely exhaust administrative remedies because she failed to complain of sex discrimination in her Charge of Discrimination filed with the Equal Employment Opportunity Commission ("EEOC"), and that plaintiff's complaint fails to state a claim for sex discrimination. Dkt. #124. For the following reasons, it is recommended that defendant's motion be granted.
Plaintiff filed a charge of discrimination with the EEOC on April 28, 2006, claiming discrimination based on national origin and disability. Dkt. #126-2, p.14. Specifically, plaintiff complained that she was from the Czech Republic and speaks with an accent and that on October 26, 2005, a co-worker placed a flag of the Czech Republic on her desk. Dkt. #126-2, p.14. Plaintiff also complained that her employer was aware of her desire to transfer due to her medical condition but that she was unable to secure another position. Dkt. #126-2, p. 15. The EEOC issued a Dismissal and Notice of Rights dated July 24, 2006. Dkt. #1, p.9.
Plaintiff commenced this action pro se on October 24, 2006, alleging violations of Title VII and the Americans with Disabilities Act of 1990 ("ADA"). Dkt. #1. Plaintiff alleges that she was hired by defendant in October of 2002 as a senior telephone sales associate and that, beginning in February of 2003, defendant failed to promote her, failed to provide her with reasonable accommodations, harassed her and retaliated against her because of her sex, national origin and disability. Dkt. #1. Plaintiff complains that in response to her attempts to relocate in July of 2005, her manager told her to move back to the Czech Repulic. Dkt. #1, p.6. She also complains that she was written up and asked to resign because she was "making other employees uncomfortable." Dkt. #126-2, p.8.
Plaintiff was terminated from her position effective January 2, 2007. Dkt. #12. On March 9, 2007, plaintiff filed a second Charge of Discrimination, alleging discrimination based on national origin and retaliation. 08-CV-503 at Dkt. #1, p.19.
Specifically, plaintiff alleged that on June 19, 2006, shortly after she filed her original Charge of Discrimination, she received a Final Written Counseling based upon factually untrue allegations and that on December 5, 2006, shortly after filing her lawsuit, she received another unwarranted Final Written Counseling. 08-CV-503 at 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. 08-CV-503 at 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." 08-CV-503 at Dkt. #1, p.21.
On November 5, 2007, plaintiff amended her second Charge of Discrimination "to include sex and age" discrimination. 08-CV-503 at Dkt. #1, p.16. Plaintiff also checked off the box relating to discrimination based upon disability. 08-CV-503 at 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. 08-CV-503 at 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." 08-CV-503 at Dkt. #1, p.27. Specifically, the EEOC determined that plaintiff was "discharged in retaliation for complaining about discrimination, filing a previous EEOC Charge and filing a corresponding federal lawsuit." Dkt. #1, p.30.
Plaintiff commenced a second action pro se on July 7, 2008. 08-CV-503 at Dkt. #1. Plaintiff alleged 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"); and disability, in violation of the ADA. 08-CV-503 at Dkt. #1. Plaintiff also asserted a claim for relief pursuant to the NYSHRL. 08-CV-503 at Dkt. #1, pp.7-14. Plaintiff complained 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. 08-CV-503 at Dkt. #1.
Defendant moved to dismiss that portion of the second complaint which alleged discrimination on the basis of disability, age and sex for failure to exhaust administrative remedies. 08-CV-503 at Dkt. #5. The Court determined that the allegations of age, sex and disability discrimination set forth in the amended Charge of Discrimination were not reasonably related to the allegations of national origin discrimination and retaliation and were, therefore, untimely. 08-CV-503 at Dkt. #16.*fn1
As a result, plaintiff's claims of discrimination on the basis of age, sex and disability were dismissed for failure to timely exhaust administrative remedies. 08-CV-503 at Dkt. #16. Plaintiff's complaint was allowed to proceed under both Title VII and NYSHRL in so far as it claimed discrimination based on national origin and retaliation. 08-CV-503 at Dkt. #16. Given the legal and factual similarities between the first and second complaint, the Court determined, sua sponte, that consolidation was appropriate. 08-CV-503 at Dkt. #16.
Defendant seeks dismissal of plaintiff's claims of sex discrimination and retaliation because plaintiff failed to include such claims in her Charge of Discrimination and because her complaint fails to state a ...