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McCullough v. Xerox Corporation

United States District Court, Second Circuit

May 2, 2013



DAVID G. LARIMER, District Judge.

Plaintiff, Loretha J. McCullough, brings this action against her former employer, Xerox Corporation ("Xerox"). McCullough alleges that Xerox discriminated against her on account of her race and sex, that Xerox retaliated against her for having opposed that discrimination, and that she has been denied equal pay for equal work, also on account of her race and sex.

Xerox has moved to dismiss all of plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, other than her claim that she was paid less than similarly situated male employees. For the reasons that follow, Xerox's motion is granted in part and denied in part.


According to the complaint, the allegations of which are accepted as true for the purposes of deciding defendant's motion, McCullough, an African-American woman, began working for Xerox in 1991 as a secretary. She received "numerous" promotions over the years, but she eventually resigned in January 2012. Complaint §§ 10, 62. Plaintiff alleges that at the time of her resignation, she "felt as though she had no choice but to resign, " because she was being subjected to a hostile work environment and because of the pay disparity between her and similarly situated white male employees.

The details of plaintiff's allegations will be set forth at greater length, as necessary, below. Based on these allegations, however, plaintiff asserts three causes of action: (1) a claim for race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq.; (2) unlawful retaliation for having opposed discrimination under Title VII; and (3) denial of equal pay for equal work, as compared to plaintiff's male coworkers, in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206. Plaintiff seeks an award of back pay and benefits, compensatory damages for pain, suffering and medical costs (stemming from her treatment for anxiety allegedly caused by defendants' actions), punitive damages and attorney's fees. As stated, defendant seeks dismissal of all of these claims, other than the EPA and Title VII claims based on plaintiff's allegation that she was paid less than similarly situated male employees performing comparable work.


I. Exhaustion of Remedies

Xerox contends that several of plaintiff's claims must be dismissed because of her failure to raise those claims in her charge filed with the Equal Employment Opportunity Commission ("EEOC"). In general, a plaintiff may bring an employment discrimination action under Title VII only after filing a timely charge with the EEOC or with a similar state or local agency. 42 U.S.C. § 2000e-5(e); see also 42 U.S.C. § 12117(a). Once the administrative process is complete and the EEOC has issued a "right to sue" letter, the plaintiff is considered to have exhausted her administrative remedies.

Although "[e]xhaustion is ordinarily an essential element'" of a Title VII 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).

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).

In the case at bar, plaintiff filed her EEOC complaint on February 3, 2011. Complaint § 5; Dkt. #6-3. On the form complaint, she checked the boxes for race and sex discrimination, retaliation, and "other, " which she explained as "equal pay." Dkt. #6-3 at 2. Plaintiff also indicated that these acts dated back to January 1, 2004, and that this was a "continuing action." Id.

In a space on the form for the particulars of her claims, plaintiff stated, "I have been paid at a rate less than male employees for equal work, " and, "I believe that I have been paid less because of my Sex/Female, in willful violation of the Equal Pay Act...." She also stated, "I have been subjected to unwelcome comments about my work duties because of my Race/African-American and gender (female)... in willful violation of Title VII...." Id.

In her complaint in this action, plaintiff alleges, as a component of her first cause of action under Title VII, that "she applied for a number of jobs and was denied these jobs based on her race and gender." Dkt. #1 at 11 § ...

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