United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
VALERIE CAPRONI, District Judge.
Plaintiffs are African-American men who allege that the Defendants discriminated against, retaliated against, and ultimately fired them based on their race, color, ethnicity, gender, and religion, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Defendants have moved to dismiss Counts V and VI of the Complaint, which allege Title VII violations because of gender discrimination and retaliation for complaints about gender discrimination, for failure to exhaust administrative remedies. Defendants also move to dismiss Counts I through VI as against IDB Capital Corporation ("IDB Capital") because IDB Capital was not named in Plaintiffs' administrative complaints. Plaintiffs move for leave to amend their complaint to add additional causes of action for discrimination under the Civil Rights Act of 1991, 42 U.S.C. § 1981; and to add defendants Israel Discount Bank Ltd. and Discount Bancorp, Inc. For the following reasons, Defendants' partial motion to dismiss is GRANTED as to Counts V and VI of the Complaint and DENIED as it seeks to dismiss all Title VII claims against IDB Capital, and Plaintiffs' motion for leave to amend is GRANTED as to the addition of claims pursuant to § 1981 and DENIED as to the new defendants.
In August 2011, Defendants hired Plaintiff Kim Newsome, a non-Jewish black male, as an Assistant Vice President of the New York Commercial Real Estate Division of Israel Discount Bank ("IDB"). Compl. ¶¶ 32-36. At that time, Newsome had 28 years of banking experience. Id. ¶ 41. Within three months Newsome complained to supervisors and the human resources department about discrimination at IDB; he alleges that he received little sympathy regarding his complaints. Id. ¶¶ 91-96. Newsome further claims that beginning in January 2012, his male supervisor began making unwelcome sexual remarks. Newsome complained to his supervisor and to human resources about these remarks but to no avail. Id. ¶¶ 97-110. Newsome alleges that his supervisors at IDB did not grant him signing authority on a normal schedule, id. ¶¶ 119-135; disciplined him for infractions that they ignored when committed by others, id. ¶¶ 136-228, 232-34, 249-67; referred to IDB as a "legacy bank" that sought to "honor and/or carry on the Jewish religion/heritage, " id. ¶¶ 244-45; and ultimately fired him in favor of a lessexperienced person who was given the title of Vice-President, which Newsome had sought and been denied, id. ¶¶ 281-82.
Similarly, in August 2010 Defendants hired Mitchell Proux, another non-Jewish black male, as a Credit Analyst in their Credit Administration Group. Id. ¶¶ 283-90. Proux alleges that he was unable to do his job because Newsome's supervisor circumvented Proux and Newsome in favor dealing with white or Jewish employees. Id. ¶¶ 309-11. Proux further asserts that he was inappropriately blamed when Defendants received a poor annual review from the Federal Home Loan Bank. Id. ¶¶ 316-22. Proux alleges that his supervisor "verbally abused and harassed [him] on a regular basis, " id. ¶ 325, including by calling him "stupid" and using other offensive terms, id. ¶¶ 327-30. When Proux and four white employees complained, the supervisor escalated her offensive conduct against Proux. Id. ¶¶ 335-41, 361. Proux avers that not long after this incident he was transferred to an isolated office and, when he complained, he was transferred back to his old office under very intense scrutiny. Id. ¶¶ 397-98. Proux also claims that he was unfairly punished for minor mistakes, id. ¶¶401-02, and that when white and Jewish employees made the same mistakes, they were not punished, id. ¶¶406-16. Proux alleges that he was questioned in a hostile manner about his complaints and that he was terminated weeks after complaining about the company's response to his allegations. Id. ¶¶ 435-39.
Plaintiffs, through current counsel, filed separate complaints with the Equal Employment Opportunity Commission ("EEOC") in late May 2012. Stoler Decl. Exs. A, E. The EEOC issued right to sue letters to both plaintiffs on June 25, 2013. Id. Exs. D, H. Plaintiffs jointly initiated the instant action on September 17, 2013.
I. Defendants' Motion to Dismiss
Defendants have moved to dismiss two parts of the Complaint for failure to exhaust administrative remedies. "As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). It is not enough merely to file a complaint with the EEOC; with certain exceptions, the administrative complaint must identify each alleged form of discrimination and each defendant against whom it is articulated. Id. at 201; Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991).
A. Plaintiffs Did Not Exhaust Administrative Remedies for Their Gender Discrimination Claims
Claims that are not included on an EEOC charge must be dismissed in a subsequent action under Title VII unless they are "reasonably related" to the claims that the EEOC investigated. Deravin, 335 F.3d at 200-01. Defendants allege that the Plaintiffs did not exhaust their administrative remedies with respect to any claim of sex- or gender-based discrimination and related retaliation. Plaintiffs do not meaningfully dispute this failure. See Opp. at 10 ("Plaintiffs agree that their EEOC Charges do not expressly allege claims of gender discrimination or retaliation for Title VII notice purposes."). Plaintiffs also do not allege that their gender claims were "reasonably related" to the claims that were investigated. Accordingly, there is no basis on which the Court could reasonably conclude that these claims were exhausted. See Stoler Decl. Exs. A, E. As a result, Counts V and VI of the Complaint are dismissed.
B. Defendants' Motion to Dismiss Counts I-VI against IDB Capital Is Denied
Defendants next move to dismiss the Title VII claims (Counts I through VI) against IDB Capital based on Plaintiffs' failure to specify that IDB Capital was the subject of their EEOC complaints. As a general matter, "[a] prerequisite to commencing a Title VII action against a defendant is the filing with the EEOC or authorized state agency of a complaint naming the defendant." Johnson, 931 F.2d at 209 (citing 42 U.S.C. § 2000e-5(e)). This requirement is nonjurisdictional, Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000), and admits of exceptions, Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995). Pursuant to the "identity of interest" exception, the Second Circuit "permits a Title VII action to proceed against an unnamed party where there is a clear ...