The opinion of the court was delivered by: Richard J. Holwell, District Judge:
Plaintiff Suzanne C. Langford filed this action on March 1, 2010, asserting claims for race and sex discrimination under Title VII and violations of 42 U.S.C. § 1981, as well as violations of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. Langford's claims arise out of her employment with defendant Starrett City, Inc. ("Starrett") in an apprenticeship program run by defendant International Union of Operating Engineers, Local 30 ("Local 30"). Now before the Court are defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(3), 12(b)(6), the timing and administrative-exhaustion provisions of Title VII, and the doctrine of federal preemption. For the reasons that follow, defendants' motions to dismiss are GRANTED in part and DENIED in part.
For the purposes of this motion, the following facts are taken as true.
I.Alleged Discriminatory Acts During Langford's Employment with Starrett Langford, an African American woman, began her work with Starrett on July 23, 2003, as a summer helper. (Compl. ¶ 29.)*fn1 She was accepted into Local 30's apprenticeship program on March 1, 2004. (Id. ¶ 28.) The apprenticeship program consists of training and an assignment to an employer with which Local 30 has a collective-bargaining agreement ("CBA"); it has a maximum duration of forty-two months. (Id.) The training provided by the apprenticeship program was meant to qualify apprentices for employment opportunities through the union hiring hall or the place of apprenticeship. (Id.)
Langford received her work assignments from defendant Michael Sullivan, a white male and Local 30's shop steward, as well as other engineers and mechanics. (Id. ¶¶ 10, 30.) The complaint details several sets of events, alleged to be motivated by Langford's sex or race, that occurred throughout her period of employment. First, it alleges that Sullivan and other white male engineers and mechanics refused to train Langford during her apprenticeship, even though they did train white apprentices. (Id. ¶¶ 31-34.) Second, during Langford's employment, Sullivan used racially offensive terms when referring to African Americans, including calling a black engineer a "'monkey' or 'gorilla' 'who should be up a tree sucking on a banana,' calling a black female a 'black bitch,' and commenting that Oprah Winfrey should have 'died in a plane crash.'" (Id. ¶ 47.) Third, Sullivan and other white male engineers and mechanics would berate Langford, verbally abuse her, and give her disparate work assignments based on her sex or race. (Id. ¶ 35.)
Fourth, Langford was assigned a number of unenviable work tasks. In December 2004, Langford was directed to clean up toxic chemicals that an operating mechanic had spilled. (Id. ¶ 36.) In the winter of 2005, Sullivan, from inside a control room, ordered Langford to walk an ice-covered catwalk to close a valve. (Id.) Langford walked the catwalk, but turned back before reaching the valve, "terrified" for her safety. (Id.) Langford asked an African-American engineer, Joe Land, about the order, and Land told her that "under no circumstances should she have been ordered onto the tower or the catwalk" because the valve could have been controlled from inside the control room. (Id.) Langford was also required to clean the men's locker room, in which photographs were displayed depicting women in various states of undress and sexually suggestive attire; her male counterparts were not required to clean the women's locker room, in which male employees would vomit and urinate. (Id. ¶¶ 37, 38.)
II.Complaints to Local 30 and Starrett Officials
Langford was not advised of a non-discrimination or anti-harassment policy or about any procedures Starrett had adopted for filing a complaint about discrimination or harassment. (Id. ¶ 49.) Nevertheless, Langford did complain to Local 30 and Starrett officials during her employment, although nothing was done in response to her complaints.
From May to August 2004, Langford complained to Rickford John, Starrett's Assistant Plant Director, about the conditions in the women's locker room, but nothing was done to correct them. (Id. ¶ 39.) On March 14, 2005, she complained to John about how Sullivan yelled at her, threatened her, verbally abused her, and treated her differently because of her race and sex. (Id. ¶ 43.) John remarked, "It seems as if things are always being done to people of color in this place," but did nothing to remedy Langford's complaint. (Id. ¶ 41.) Throughout her employment, Langford complained to John about the "abuse, hostility, failure to train, the sexually suggestive photographs, hostile work environment and disparate treatment she suffered at the hands of her co-workers, supervisors, and fellow union members, to no avail." (Id. ¶ 44.) She also complained throughout her employment about being required to clean the men's work stations on a regular basis, since that work should have been assigned to the individual who had been on duty at the time, but no action was taken on those complaints either. (Id. ¶ 45.)
On May 31, 2005, Langford complained to Erol Ozkirbas, director of Starrett's power plant, about the sexually suggestive pictures in the men's locker room, and suggested sexual harassment training classes; no action was taken. (Id. ¶¶ 41, 42.) In March 2005, Langford complained to Local 30's assistant shop steward, Bill Fallon, that she was subjected to harassment, verbal abuse, and had been treated in a disrespectful manner by a former white male apprentice and boiler operator, Brendan Benn. (Id. ¶ 50.) Fallon directed her to write a complaint, and told her that he would handle it. (Id.) On March 11, 2005, in response to her complaint to Fallon, Brendan McPartland, a business agent of Local 30, interrogated Langford, verbally berated her, and suggested that she could be disciplined for insubordination. (Id. ¶ 51.) Langford then decided that it would be fruitless to complain further to Local 30 officials. (Id. ¶ 52.)
III.Departure from Starrett
Langford's forty-two month apprenticeship period was scheduled to end in September 2007, (Id. ¶ 56), but Langford experienced further difficulties leading up to the end of her apprenticeship. On April 24, 2006, she advised Salim Qureshi, Starrett's Director of Technical Services, that she was applying for an open operator position. (Id. ¶ 53.) Qureshi, a native of India, pointed to his own skin and said, "It's all about color in this place." (Id.) He repeated that remark after a white male was hired. (Id.) On May 17, 2006, Langford applied for a position as a boiler operator at Starrett, but was turned down on the grounds that she needed a refrigeration license. (Id. ¶ 54.) Langford believes that the person hired for the position, a white male with less experience, did not have such a license. (Id.) On April 30, 2007, Langford applied for a position as a maintenance mechanic. (Id. ¶ 64.) Starrett administered a test for the position, and hired a white male with less experience than Langford. (Id.)
Beginning in March 2006, Local 30 began to insist that Langford's apprenticeship had ended and that she had to report to the union hiring hall for reassignment. On March 30, 2006, December 13, 2006, and in March 2007, Howard Kelly, Director of Local 30's Apprenticeship Training Program, sent Langford letters advising her that she was no longer in the apprenticeship and directing her to report for reassignment. (Id. ¶ 55.) On December 22, 2006, Langford went to the Local 30 hiring hall and informed Kelly that her apprenticeship did not end until September 2007; Kelly told her that she "must make room for others." (Id. ¶ 57.) Langford asked Kelly whether other white male apprentices who had started at the same time were being told similar things; Kelly had no answer, and these apprentices indeed had not been told similar things. (Id.) Langford complained to John that Local 30 was trying to get her fired; John responded that "things happen to people of color," but did nothing to address Langford's complaint. (Id. ¶ 59.)
On March 8, 2007, Sullivan told Langford to report to the union hiring hall as her apprenticeship period had ended. (Id. ¶ 60.) When Langford protested that she had six months remaining in her apprenticeship, Sullivan told her to go the union hall, and if she was hired by another employer, she "better not turn down that job or else [she was] going to have problems with the Union." (Id.) Sullivan repeated similar remarks to Langford on March 30, 2007 and May 1, 2007. (Id. ¶¶ 61, 68.) Langford asked Sullivan for a reference letter on March 30, 2007; Sullivan declined, although he had given white males such letters. (Id. ¶ 62.)
On April 12, 2007, Sullivan filed a grievance against Langford with Starrett asserting that her apprenticeship period had expired. (Id. ¶ 65.) The next day, John Friel, director of Starrett's power plant,*fn2 wrote a memo to Qureshi and Vernon Douglas, director of Starrett's Human Resources Department, advising them that the term did not end until September 2007, but that Sullivan insisted on filing the grievance at the direction of union "higher-ups." (Id. ¶ 66.) Starrett rejected the grievance, concluding that Langford's time as a summer helper was not part of the apprenticeship period and never had been in any previous case. (Id. ¶ 67.)
On May 8, 2007, Langford complained to John that the union was pushing her out of her job, but nothing was done in response to her complaint. (Id. ¶ 69.) Because Langford felt that her working conditions were intolerable, and because she felt that neither Local 30 nor Starrett would do anything to correct those conditions, she resigned on May 20, 2007. (See id. ¶¶ 70-73.) Langford reported to the Local 30 hiring hall and secured a lesser-paying position that she alleges is not commensurate with her qualifications. (Id. ¶ 74.) Since then, Langford has made multiple requests to Local 30 to be placed in a position commensurate with her qualifications, but Local 30 has been unresponsive to these requests except to place her on a "transfer list" on which she has been listed for three years. (Id. ¶ 75.)
On February 1, 2008, Langford filed complaints against Starrett (the "Starrett Complaint") and Local 30 (the "Local 30 Complaint") with the New York State Department of Human Rights ("NYSDHR"). (See Compl. Exs. A, B, F, G.) Both complaints checked the boxes indicating that Local 30 and Starrett were discriminating against her based on her race, color, and sex; neither complaint checked the box indicating "Retaliation for Opposing Discrimination." (See id. Exs. A, F.) Both complaints peg the most recent act of discrimination as occurring on May 20, 2007. (Id.) The Starrett Complaint describes Langford's exposure to "sexually explicit pictures" in the men's locker room, a "hostile work environment," "racial epithet," and Starrett's failure to promote her to an operator's position based on her lack of a refrigeration license. (See id. Ex. A at 3.) The Local 30 Complaint contains a more extensive description of discriminatory events. In addition to reciting the events described in the Starrett Complaint, it details Sullivan and Local 30's disparate treatment of Langford, including her being assigned cleaning work that men should have done and being sent unnecessarily to turn off a valve in icy conditions; the failure of Local 30 officials to answer Langford's training-related questions; and Local 30's attempts at removing Langford from her position. (See id. Ex. F at 4.)
NYSDHR found that there was probable cause with respect to both complaints that Local 30 and Starrett engaged in the unlawful discriminatory practices of which Langford complained. (See id. Exs. C, H.) On February 2, 2010, Langford advised NYSDHR of her intention to pursue her claims in federal court and requested that both the Starrett and Local 30 Complaints be dismissed. (Id. ¶¶ 15, 23.) On February 8, 2010, the United States Equal Employment Opportunity Commission ("EEOC") issued Notice of Right to Sue letters for each complaint. (Id. Exs. E, J.) On February 12, 2010, Administrative Law Judge Thomas S. Protano issued Recommended Orders of Dismissal for Administrative Convenience for the Starrett and Local 30 Complaints, which NYSDHR adopted on March 15, 2010. (See id. ¶¶ 16, 24, Exs. D, I, J.)
Langford filed suit in this Court on March 1, 2010. Defendants filed their motions to dismiss on June 25, 2010.
V.Claims and Relief Sought
Based on the foregoing facts, Langford asserts a series of claims arising out of the alleged discrimination she experienced at Starrett.
Although styled as two claims for relief, (see id. ¶¶ 77-98), one for race discrimination and one for sex discrimination, each Title VII "claim" contains multiple claims within it. The race discrimination section contains eight claims, including six against Local 30 and two against Starrett. The Local 30 claims are: (1) a "pattern and practice" claim of operating the apprenticeship program in a discriminatory fashion; (2) a failure to train claim; (3) a hostile work environment claim; (4) a constructive discharge claim; (5) a denial of job referral opportunities claim; and (6) a retaliation claim.*fn3 (Id. ¶¶ 78-84.) The Starrett claims are: (1) a hostile work environment claim; and (2) a failure to hire claim. (Id. ¶¶ 85-86.) The sex discrimination also contains eight claims that are structured in the same manner as the race discrimination claims. (Id. ¶¶ 89-98.)
Langford's section on her claims based on 42 U.S.C. § 1981 contains four claims: (1) a claim against Local 30 and Sullivan for depriving her of her rights as a union member to be free from discriminatory conduct by other union members; (2) a claim against all defendants that they deprived her of her rights as an apprentice to be in an apprenticeship program free from discriminatory conduct in the workplace; (3) a hostile work environment claim against all defendants; and (4) a claim of constructive discharge. (Compl. ¶¶ 100-104.)
Langford also asserts claims against Starrett and Local 30 under the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., and against all defendants under the New York City Human Rights Law, N.Y. City Administrative Code § 8-107 et seq. for the "depriv[ation]" of her "rights secured by" those laws. (Id. ¶¶ 106, 108.)
Based on these claims, Langford seeks: (1) compensatory damages in the amount of one million dollars; (2) an award of back pay; (3) an award of front pay; (4) punitive damages in the amount of three million dollars; and (5) costs, disbursements, expert fees, and attorneys' fees.
As a threshold matter, both Local 30 and Starrett argue that venue is improper in this District. (Local 30 Mem. at 24-25; Starrett Mem. at 4-5.*fn4 ) Title VII's venue provision provides that: an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the ...