Summary
dismissing age and disability discrimination, failure to promote, and discriminatory transfer claims because they were not included in the EEOC charge
Summary of this case from Tamayo v. City of New YorkOpinion
00 Civ. 8967 (GEL)
March 26, 2002
Marcia Hall, New York, New York, Pro Se.
Neil S. Rosolinsky, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel of the City of New York, of counsel) for Defendants The City of New York, NYC Dept. of Housing Preservation and Development and New York City Civil Service Commission.
OPINION AND ORDER
Plaintiff Maria Hall ("Hall" or "plaintiff") filed a complaint jointly with the New York State Division of Human Rights ("NYSDHR") and the United States Equal Employment Opportunity Commission ("EEOC") on July 15, 1998, and filed an amended complaint on September 11, 1998. The administrative complaints allege that the City of New York ("City"), the New York City Department of Housing Preservation and Development ("HPD"). and the New York City Civil Service Commission (collectively "defendants") engaged in "unlawful discriminatory practices related to employment, by denying [plaintiff] equal terms. conditions and privileges of employment, because of race/color, sex, religion and in retaliation for opposition to unlawful discriminatory practices, in violation of Section 296 of the NYS Human Rights Law." (Defs. Ex. 1 at ¶ 8.)
After the EEOC adopted the NYSDHR'S finding of no probable cause and issued a right-to-sue letter (Defs. Ex. 5), Hall filed this action pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. ("ADA"), and other federal and state statutes. In addition to those claims raised in her NYSDHR/EEOC complaints, Hall's federal lawsuit also attempts to raise claims for discrimination based on disability and age, failure to promote, and involuntary transfer.
Defendants move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that all of Hall's claims are time-barred and, moreover, that the disability, age, failure to promote, and involuntary transfer charges must be dismissed because they were not raised in the NYSDHR/EEOC complaint and amended complaint. For the reasons that follow, the motion is granted in part.
BACKGROUND
Hall, a black, Muslim woman (Defs. Ex. 2 at ¶ 1), began working for HPD in 1979. (Hall Aff. ¶ 5). On July 22, 1997, apparently because she felt that a change in office locations "was detrimental to [her] health and safety," Hall stopped going to work. (Pl. Opp. Mem. at 2.) On that same day, she visited the NYSDHR office to inquire about filing a discrimination complaint, but no complaint was filed on that day. (Pl. Ex. 2.) On June 17, 1998, Hall received a letter from the NYSDHR following up on her July 1997 visit. and inquiring about whether she still wanted to file a complaint. (Id.) About a month after receiving this letter, on July 15, 1998. Hall filed a joint NYSDHR/EEOC complaint, which she amended on September 11, 1998. (Defs. Exs. 1, 2.)
Hall claims that although she actually formalized her complaint in July 1998, the complaint should be treated as having been filed on July 22, 1997, the date of her initial visit to NYSDHR. (Pl. Opp. Mem. at 3.) The defendants disagree, arguing that the date of filing should control for timeliness purposes and that Hall's circumstances do not merit exceptional treatment. (Defs. Reply Mem. at 5.) The NYSDHR "Determination and Order After Investigation" marks July 22, 1997 as the date of filing. (Defs. Ex. 3.)
The contents of the complaints are not in dispute. The initial complaint alleged that the defendants retaliated against Hall for sending memorandums and filing charges that alleged discrimination on the basis of race, color, and sex. (Defs. Ex. 1 at ¶ 3-5.) The alleged retaliation consisted of a labeling Hall as absent without leave ("AWOL"), withholding her paychecks, terminating some medical benefits, failing to pursue her workers compensation claim, and denying sick leave benefits. (Id. at ¶ 6.) Although the principal thrust of the complaint was retaliation, Hall also specifically charged that she was denied equal treatment "because of race/color [and] sex," as well as "in retaliation for my opposition to unlawful discriminatory practices." The amended complaint added allegations of discrimination based on religion. (Defs. Ex. 2 at ¶ 7-8.) Specifically, the amended complaint charged that the defendants failed to reasonably accommodate time off for prayer and to respond to a complaint about damage to Hall's religious head covering. (Id. at ¶ 6a.)
HPD fired Hall on August 21, 1998, after she had remained on sick leave for more than a year. (Defs. Reply Mem. at 6.) The EEOC issued a right to sue letter on July 10, 2000 (Defs. Ex. 5), and Hall filed this action on October 10, 2000.
DISCUSSION
A timely administrative complaint is a precondition to Hall's action in federal court, although not a jurisdictional requirement. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that "filing a timely charge of discrimination . . . is not a jurisdictional prerequisite to a suit in federal court, but a requirement that . . . is subject to waiver, estoppel, and equitable tolling");Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (holding that "presentation of a Title VII claim to the EEOC `is not a jurisdictional [prerequisite], but only a precondition to bringing a Title VII action that can be waived by the parties or the court'") (quoting Pietras v. Board of Fire Commissioners, 180 F.2d 468, 474 (2d Cir. 1999)). The Court may consider claims included in the NYSDHR/EEOC complaint or based on conduct subsequent to the administrative complaint but reasonably related to claims made in it. Butts v. City of New York Dep't. of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993); see also, Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) ("`[C]laims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are `reasonably related' to those that were filed with the agency'") (quoting Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999)). To be timely the administrative complaint must be filed within 300 days of the date of the alleged discriminatory employment practice. Tewksbury v. Ottoway Newspapers, 192 F.3d 322, 328-29 (2d Cir. 1999).
Although Butts describes these requirements as limits on the jurisdiction of the court, Butts, 990 F.2d at 1401 ("[a] district court only has jurisdiction to hear Title VII claims that either are included . . . or . . . `reasonably related'"), in Francis, the Second Circuit emphasized that the reference to "jurisdiction" in Butts was not strictly accurate, and that in light of the Supreme Court's decision in Zipes, the requirement is more precisely a "waivable condition precedent" rather than a "jurisdictional prerequisite." Francis, 235 F.3d at 768.
Defendants move for judgment on the pleadings. claiming that Hall's claims are improper either because she raises them here for the first time or because she complained to the NYSDHR/EEOC after the 300-day limitation period had passed.
I. New Claims
Defendants are correct that Hall's administrative complaints did not charge failure to promote, involuntary transfer, discrimination based on age in violation of the ADEA, and discrimination based on disability as in violation of the ADA. Defendants are therefore entitled to judgment on the pleadings on those claims.
Even on a liberal construction, Hall's NYSDHR/EEOC complaints do not address these charges. Hall's claims that she did properly present them to the agencies are not persuasive. With respect to age and disability discrimination, Hall points not to anything in her own complaints, but to references to the ADA and ADEA in the EEOC right-to-sue letter, claiming that the letter thus shows recognition by the EEOC that she had charged such discrimination. (Pl. Opp. Mem. at 4, 8.) As defendants correctly observe, however, the EEOC letter "is a standard form letter that makes no specific findings as to the types of claims included in the underlying complaint." (Defs. Reply Mem. at 7; see also id. at 8.) The EEOC letter consists of a checklist with provisions applicable to many kinds of complaints and suitable for a variety of notifications to claimants. The only language specifically referable to Halls case (other than the date and her name and address) is an "X" marking the notice that "The EEOC has adopted the [no probable cause] findings of the state or local fair employment practices agency that investigated this charge." (Defs. Ex. 5.) The letter thus cannot be read as an acknowledgment by the EEOC that Hall somehow presented claims that are not raised in her administrative complaints. Allegations of age and disability discrimination made in Hall's brief opposing defendants' motion (see, e.g., Pl. Opp. Mem. at 5) are untimely. Failure to raise these claims with particularity in the administrative complaints prevents their consideration here.
Hall does not cite any portion of the administrative record as articulating her involuntary transfer claim, referencing as the source of that claim only the disability discrimination discussion in her opposition brief. (Pl. Opp. Mem. at 8.) Since Hall's disability claims were not timely raised, her involuntary transfer claim is also barred.
Arguing that her failure to promote claim was properly presented to the EEOC, Hall points to paragraph three of her initial NYSDHR/EEOC complaint. (Pl. Opp. Mem. at 8.) That paragraph states, in full: "During the course of my employment with respondent, I had made a number of EEO charges in-house and at the Federal level, and sent a number of memos related to the poor health and safety conditions under which I and my staff had to work, discriminatory promotion and hiring practices, and complaining of the fact that we were not receiving the proper resources with which to do our jobs." (Defs. Ex. 1, ¶ 3 (emphasis added).) This generalized statement is not enough. It does not include specific factual allegations that the defendants denied Hall a particular position. Moreover, paragraph three complains not about failure to promote, but rather about retaliation for prior charges of failure to promote. The complaint thus cannot be taken to have alerted the agencies that an objection was being made to any particular job action taken within the limitations period.
Nor are Hall's disability, age, involuntary transfer. and failure to promote claims based on conduct subsequent but reasonably related to the discrimination charged in the complaint. First, the claims are not "related to" those alleged in the initial complaint. While Hall's claims of retaliation in the initial NYSDHR/EEOC charge primarily involve actions taken by defendants after she was declared AWOL on July 14, 1997 (Defs. Ex. 1, ¶ 5, 6; Pl. Opp. Mem. 1), her additional claims concern an entirely different set of issues relating to an earlier period.
Second, the "reasonably related" doctrine does not excuse a failure to include in an administrative complaint allegations about discriminatory acts that had already occurred at the time the complaint is filed. Rather, the doctrine permits a court to consider claims "based on conductsubsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge." Butts, 990 F.2d at 1401 (emphasis added). "This rule avoids unnecessary repeat filings of EEOC complaints when thesubsequent claims are sufficiently similar to those set forth in the original complaint." Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993) (emphasis added). Thus, a complainant does not have to file a second EEOC charge of retaliation for filing an earlier substantive charge of discrimination. See, e.g., Shah, 168 F.3d at 614; Malarkey, 983 F.2d at 1208; Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir. 1980). But the rule does not permit a plaintiff to bring suit based on alleged prior acts of discrimination that could have been, but were not, asserted in the EEOC charge that was filed.
Accordingly, plaintiffs' claims of age and disability discrimination, failure to promote, and discriminatory transfer are dismissed.
II. Claims in the Initial NYSDHR/EEOC Complaint
Deftndants argue that Hall's claim of discrimination in the terms and conditions of her employment, though presented in the initial NYSDHR/EEOC complaint, was also untimely. Hall filed her first administrative complaint on July 15, 1998; however, her last day at work at HPD was July 22, 1997, more than 300 days earlier. Accordingly, any claim regarding the terms and conditions of her employment must necessarily relate to conduct that occurred before the limitations period for EEOC complaints.
Hall's primary claims of race and sex discrimination or retaliation do not concern the terms and conditions of her employment, but rather conduct after her firing. Her administrative complaint, incorporated by reference into her complaint before this Court, alleges that the retaliation against her continued after her last day of work, by defendants' "withholding paychecks to which I am entitled, terminating some of my medical benefits, not pursuing my workers['] compensation claim, [and] denying certain sick leave benefits." (Defs. Ex. 1, ¶ 6.) We do not read defendants' motion as attempting to dismiss these claims on the pleadings.
Nevertheless, construing Hall's papers in the liberal manner due to pro se pleadings, see, e.g., Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991), the facts pled do not establish that the the complaint was untimely/ As noted above, Zipes provides that the time period for filing administrative complaints in discrimination cases may be subject to equitable tolling. Zipes, 455 U.S. at 393. Although one district court has suggested that "the statute of limitations cannot be equitably tolled" in New York, Barnell v. Paine Webber Jackson Curtis, Incorporated, 614 F. Supp. 373, 376 (S.D.N.Y. 1985), the New York state courts seem to think otherwise. The First Department has held that a belated complaint can be deemed to have been filed at an earlier date when the delay in filing resulted from "the division's own failure to render effectual assistance to petitioner in the processing of [the] complaint." Stacey v. McDaniel, 54 A.D.2d 645, 646 (1st Dept. 1976).
Defendants argue, citing Barnell, that Stacey should be limited to its particular facts. which involved a plaintiff who had sought to file a complaint and expressed concerns about its timeliness, but was advised by the state agency staff not to file a formal complaint, and that a future complaint would be deemed filed as of the date of the first visit. 54 A.D.2d at 645-46. Defendants note that the letter sent to Hall by the NYSDHR states merely that Hall had "visited [the agency's] office seeking information about the possibility of filing a complaint" (Pl. Opp. Mem. Ex. 2), not that she had made an oral complaint and been discouraged from formalizing it. Hall, however, alleges enough to make judgment on the pleadings inappropriate as to the claims made in her NYSDHR/EEOC complaint.
Hall alleges in her motion papers that on her first visit to NYSDHR she was "not allowed to file a complaint." (Pl. Opp. Mem. at 3) Moreover, the NYSDHR "Determination and Order After Investigation" notes the date of filing as July 22, 1997, the date of Hall's first visit to the agency. (Defs. Ex. 3.) NYSDHR had written to Hall on June 17, 1998, noting her earlier visit, and enclosing a "Notice" specifically referencing Stacey v. McDaniel and quoting its holding that NYSDHR must "ascertain whether [a complaint's untimeliness] may be due to the Division's own failure to render effectual assistance to [complainant] in the processing of the complaint. Should it so find, its duty would clearly be to process the complaint, as timely filed, on the merits." (Pl. Opp. Mem. Exs. 2, 3, quoting 54 A.D.2d at 646.) Since NYSDHR did in fact proceed to accept the complaint in this case, process it on the merits, and note the filing date as that of Hall's first visit, it would appear that the agency itself considered that the Stacey standard was met in this case. Taken together, Hall's allegation that she was prevented from filing her complaint on the occasion of her first visit, NYSDHR's apparent determination that July 22, 1997, was the correct filing date under state law, preclude a judgment on the pleadings that the filing was untimely.
While this claim is made in plaintiffs' responsive papers and not in the complaint itself, liberal construction of a pro se plaintiffs' various pleadings requires them to be read together.
Judgment on the pleadings is thus denied as to all allegations that were included in the initial NYSDHR/EEOC complaint, to the extent that those allegations concern events occurring after, or within 300 days before, July 22, 1997.
III. Claims in the Amended NYSDHR/EEOC Complaint
Hall's initial administrative complaint does not allege discrimination on the basis of religion. Her religion claims, which relate to events that occurred before July 22, 1997, when Hall was still working at HPD (Defs. Ex. 2 at ¶ 6a), were not brought to the attention of NYSDHR until the filing of the amended complaint on September 11, 1998, well over 300 days after the discriminatory acts allegedly occurred. Hall makes no claim that the filing of the amended administrative complaint was hindered, or that NYSDHR employees were in any way responsible for her failure to include these claims in her initial complaint. Accordingly, the pleadings do not support a Stacey finding that the claims should be deemed timely filed because of administrative mishandling. Nor does the record suggest any other basis for equitable tolling of the statute of limitations on administrative complaints with respect to Hall's religious discrimination claims.
Nor do the pleadings support relation back of the amendment to the initial filing date. Even if Hall's first complaint is deemed timely, the religious discrimination charges do not have the necessary connection to the initial charges to relate back. "[R]elation back is not appropriate where the facts alleged in the timely EEOC charge refer exclusively to one type of discrimination wholly distinct from that alleged in the untimely amendment." Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 825-26 (S.D.N.Y. 1991) (finding that a religious discrimination charge did not relate back to an initial sex discrimination charge). Hall's initial administrative complaint does not mention religious discrimination, and nothing in the initial complaint suggests the factual basis for her religious discrimination charge articulated in the amendments — the defacing of her head covering and inadequate time off for prayer (Defs. Exs. 1; cf. Ex. 2 at ¶ 6a.). The claims of discrimination based on religion must therefore be dismissed as untimely.
CONCLUSION
Accordingly, the defendants' motion for judgment on the pleadings is granted as to the claims of involuntary transfer, failure to promote, and discrimination based on age, disability, and religion. The motion is denied as to those claims of retaliation and of race and sex discrimination made by Hall in her initial NYSDHR/EEOC complaint.
SO ORDERED: