Opinion
04-CV-76S.
February 25, 2005 February 28, 2005
DECISION AND ORDER
I. INTRODUCTION
Plaintiff Anne M. Byrne commenced this action alleging that Defendant Telesector Resources Group, Inc., d/b/a Verizon Services Group, a/k/a/ Verizon New York, Inc. ("Defendant" or "Verizon") discriminated against her based on her sex, subjected her to a sexually hostile work environment, retaliated against her following her complaints of discrimination and paid her less than male employees performing the same duties, 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 ("HRL"), N.Y. EXEC. L. §§ 290 et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. §§ 206 et seq. (Docket No. 1).
Verizon moved to dismiss the complaint, except with regard to Byrne's contention that her receipt of a negative performance evaluation and below average raise in 2003 was retaliatory in violation of Title VII and the HRL (Docket Nos. 3, 4).
Byrne responded to Verizon's motion by first filing an amended complaint (Docket No. 12) and then submitting opposition papers (Docket Nos. 15 16). Verizon moved to dismiss the amended complaint on the ground that Byrne's amendment has not cured the deficiencies set forth in its original motion to dismiss (Docket Nos. 18-20).
Presently before this Court is Verizon's Motion to Dismiss the Amended Complaint. For the following reasons, Verizon's motion is granted in part and denied in part.
II. BACKGROUND
A. Factual Allegations
According to the amended complaint, Byrne commenced employment at Verizon in or about September 1974 and worked there without incident for twenty-two years (Docket No. 12, ¶ 8). In 1996, Byrne was transferred to the NYNEX System Marketing Branch as a Systems Analyst ( Id., ¶ 9). Byrne claims that, following her transfer, she was subjected to sex-based disparate treatment with regard to the terms and conditions of her employment, required to work in a sexually hostile work environment, retaliated against for complaining of unlawful discrimination, and paid less than similarly situated male employees ( Id., ¶¶ 11-17).
1. Disparate Treatment
In 1997, Byrne requested that she be promoted, but her request was denied ( Id., ¶ 27). In 1999, Byrne requested that she be sent to a particular training program, but her request was denied until she complained to her manager ( Id., ¶¶ 29-30).
In 1999, Byrne and other employees in the title of Sales Analyst were considered for the position of Sales Engineer. Byrne was assessed as a Sales Engineer I, while men in her department were assessed at a higher level, Sales Engineer II. ( Id., ¶ 31).
From September 1999 through February 2000, Byrne requested that her managers deem her "releasable" so that she could apply for positions in other departments, but her request was not granted until August 2000 ( Id., ¶¶ 34-39). In late 2000, Byrne was told she was the "desired candidate" for a position in another department for which she had applied, but was later informed that there was a hiring freeze and that she would not be transferred ( Id., ¶ 40). Byrne remained in the same department and was promoted to Sales Engineer II in early 2001 ( Id., ¶ 41). In early 2002, Byrne applied for a posted position in her department for which she was qualified, but an outside, male candidate was hired despite Verizon's practice of first making positions available to qualified internal candidates ( Id., ¶¶ 43-45, 47). Although Byrne subsequently performed the same duties as the newly hired male, he was given a higher salary ( Id., ¶¶ 47-48, 77-78, 143-44).
2. Hostile Work Environment
Byrne's hostile work environment claim appears to be based on conduct that she observed as well as conduct that she was not exposed to, but which other employees told her about.
In October 2002, Byrne overheard two male employees who were standing approximately ten feet from her desk discuss The Man Show and its premise of degrading women ( Id., ¶ 56). In early 2003, these same two employees had another conversation near Byrne's desk in which one of them complained of his lack of sexual intercourse due to the fact that his wife had just delivered a baby ( Id., ¶ 23).
Byrne was informed by another employee that a manager, Michael McGowan, had made comments about her physical appearance ( Id., ¶ 25). Byrne also heard anecdotally that, in early 2002, another manager, Daniel Irving, looked at a female employee's breasts and said the word "hooters" ( Id., ¶ 46). At some time in 2003, Byrne was told that a male employee had given out his fax number as "25 PENIS" ( Id., ¶ 63).
The amended complaint refers, without specificity, to "numerous" comments about the physical appearance of women by Michael McGowan, who worked in the same division as Byrne from 1996 to January 2000 ( Id., ¶¶ 22-24, 36).
3. Retaliation
After Verizon hired an outside candidate in April 2002 for a position for which Byrne had applied, she complained to management of sex discrimination ( Id., ¶ 49). Verizon retaliated against Byrne by transferring her between product specialties, increasing her workload and assigning her menial duties ( Id., ¶¶ 52-54, 57, 62). In the summer of 2002, Byrne requested that she be reassessed as a Sales Engineer III ( Id., ¶ 76). After being told she could not be promoted due to a freeze, Byrne discovered that other employees had received such promotions ( Id.). In early 2003, Byrne's manager gave her a negative performance appraisal for the year 2002 which, in turn, resulted in a below average raise ( Id., ¶ 65).
Byrne made additional complaints of discrimination, hostile work environment and retaliation after receiving her negative evaluation. ( Id., ¶¶ 66-69, 72-74). Following these complaints, Byrne's position was upgraded to Sales Engineer III in July 2003, but she was required to go through an assessment process that was not required of males ( Id., ¶ 77). In October 2003, after Byrne applied for an open Sales Engineer IV position, the position was reclassified to Sales Engineer II, a lower level than Byrne then held ( Id., ¶ 80). In December 2003, Byrne applied for a Sales Engineer IV position in Verizon's Syracuse office ( Id., ¶ 81). The position was offered to an external male candidate despite Verizon's practice of favoring qualified internal candidates, such as Byrne ( Id.).
4. Discrimination in Compensation
When Byrne was transferred to the NYNEX System Marketing Branch in 1996, her salary was set at only 90 percent of the midpoint range for her position ( Id., ¶ 19). Commencing in April 2002, Byrne performed the same duties as a male employee, David Winley, but was compensated at a lower rate ( Id., ¶¶ 47-48, 77-78, 143-44).
B. EEOC Charge
On July 17, 2003, Byrne filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that, since April 1996, she had been subjected to different terms and conditions of employment and a hostile work environment because of her sex (Docket No. 16, Exh. B). Specifically, Byrne alleged that she was denied a promotion in November 2002 and given a negative performance evaluation in March 2003 ( Id.). According to the charge, Byrne was retaliated against after she made complaints to Verizon management, its human resources department and one of its EEO advocates ( Id.).
The EEOC investigated Byrne's allegations and issued a Determination, which also served as the notice of suit rights, dated November 4, 2003 (Docket No. 12, Exh. A). Therein, the EEOC noted that all of Byrne's allegations, except with regard to the disputed performance review, were untimely ( Id.).
C. Procedural History
Byrne instituted this action on February 2, 2004, by filing a complaint in the United States District Court for the Western District of New York. Verizon moved to dismiss the complaint, and Byrne filed an amended complaint. Verizon filed the instant motion to dismiss the amended complaint. After full briefing on the motion, this Court heard oral argument on June 15, 2004, and reserved decision at that time.
III. DISCUSSION AND ANALYSIS
A. Standards on Motion to Dismiss
It is well-settled that in determining a dismissal motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A complaint should be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 319, 322, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).
"When determining the sufficiency of [a plaintiff's] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff['s] . . . complaint, . . ., to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents [offered by the defendant that were] either in plaintiff's possession or of which [plaintiff] had knowledge and relied on in bringing suit." Brass v. American Firm Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also, Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). When matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed.R.Civ.P. 12(b).
In this case, Byrne attached to her amended complaint the EEOC's Determination and its Notice of Suit Rights (Docket No. 12, Exhs. A, B). The amended complaint also expressly references Byrne's filing of an administrative charge with the EEOC ( Id., ¶ 84(a)), and both parties have offered that document in connection with the instant motion. Beyond that, both parties have submitted materials outside the four corners of the pleadings. Specifically, Byrne has submitted an eleven page letter purportedly sent to the EEOC prior to her charge filing, along with administrative charges, affidavits, federal court complaints, subpoenas and responsive documents in proceedings involving other Verizon employees (Docket No. 16, Exhs. A, C-F, K-L). Verizon has submitted what it purports is the EEOC's case file relative to Byrne's charge, including correspondence on various matters between the EEOC and the parties' attorneys (Docket No. 20, Exh. A). Both parties urge that the Court can consider these various documents without converting the motion to one for summary judgment.
Applying the principles discussed in Cortec, this Court finds that it may properly consider, as part of the pleadings, the attachments thereto and the EEOC charge expressly referenced in the amended complaint. See Jadoo v. City of New York, 95 CV 3540, 1997 U.S. Dist. LEXIS 14950, at *6 (E.D.N.Y. Sept. 29, 1997) (EEOC charge submitted with defendants' 12(b)(6) motion was incorporated in the complaint by reference and did not convert motion to one for summary judgment). Byrne's submissions, which were not appended to or referenced in the amended complaint, cannot now be considered part of the pleadings. Similarly, the decisions cited by Verizon in support of its EEOC case file submission discuss only the consideration of administrative complaints and agency determinations, not party correspondence and other extraneous materials Verizon would now have the Court consider.
This Court declines to convert Verizon's motion to one for summary judgment and therefore will consider only the attachments to Byrne's complaint and her EEOC charge.
B. Defendant's Motion to Dismiss
As discussed above, the amended complaint alleges sex-based disparate treatment and hostile work environment, unequal pay and retaliation. Verizon argues that: 1) Byrne failed to exhaust her administrative remedies with regard to each of her Title VII and Equal Pay Act claims, 2) most of the Title VII claims in the amended complaint are untimely, 3) the Equal Pay Act claim is barred by the statute of limitations, and 4) the "tag along" HRL claims are "not properly before the Court," or alternatively, are untimely (Docket No. 14, pp. 1-2). Verizon urges that this action can proceed only with regard to the allegations that Byrne received a negative evaluation and below average raise in 2003.
This Court will address each argument, starting with the Title VII claims.
1. Title VII Statute of Limitations
Verizon argues that most of the incidents of disparate treatment and retaliation of which Byrne complains of are time-barred because they occurred more than 300 days prior to the filing of her EEOC charge. Byrne acknowledges the 300 day time limitation, but argues that the continuing violations doctrine applies to her Title VII claims because all of the incidents alleged in the amended complaint are part of a pattern and practice of discriminatory conduct.
Verizon does not challenge the timeliness of the hostile work environment allegations.
To maintain an action under 42 U.S.C. § 2000e-5, a plaintiff must ordinarily file a timely charge with the EEOC, receive from that agency a right to sue letter, and commence an action within 90 days of receipt of that letter. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). In New York state, which has its own anti-discrimination laws and enforcement agency, an administrative charge must be filed with the EEOC or the New York State Department of Human Rights within 300 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e); Harris v. City of New York, 186 F.3d 243, 247 n. 2 (2d Cir. 1999).
"The timeliness of a discrimination claim is to be measured from the date the claimant had notice of the allegedly discriminatory action." Van Zant, 80 F.3d at 713 (citing Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992)). The 300 day filing requirement "functions as a statute of limitations,"Quinn v. Green Tea Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998), and is strictly construed in this circuit, see, e.g., Trenchfield v. DuPont Photomasks, Inc., No. 96 Civ. 1135, 1997 U.S. Dist. LEXIS 1321, at *16-20 (S.D.N.Y. 1997) (Title VII claims filed with the EEOC 338 days after alleged discriminatory employment practice dismissed as untimely); Van Zant v. KLM Royal Dutch Airlines, 870 F.Supp. 572, 575 (S.D.N.Y. 1994) (sexual harassment and retaliation claims dismissed as time-barred where last alleged discriminatory act was 315 days before EEOC filing). Moreover, the Supreme Court recently reiterated its view that "`strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108, 122, S.Ct. 2061, 2070, 153 L.Ed.2d 106 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)).
Here, it is undisputed that Plaintiff filed her charge with the EEOC on July 17, 2003 (Docket No. 16, Exh. B.) Accordingly, any alleged incidents occurring before November 20, 2002 are time-barred. See Miller v. New York City Health Hosp. Corp., No. 00 Civ. 140, 2004 U.S. Dist. LEXIS 17050, at *8 (S.D.N.Y. Aug. 25, 2004) ("An incident that was not charged to the EEOC or DHR within 300 days of its occurrence is time-barred.").
All of the incidents upon which Byrne premises her claim of disparate treatment are alleged to have occurred in or before April 2002, and are therefore time-barred. The allegations of retaliation based on the imposition of additional duties in August and October 2002 and the denial of Byrne's request for a promotion to Sales Engineer III in the summer of 2002 are also time-barred.
Byrne argues that the continuing violation doctrine works to save her untimely allegations because "many of the acts at issue are a part of a pattern and practice of discriminatory conduct toward women within the Buffalo Office of the Enterprise Sales Group of . . . Verizon" (Docket No. 17, p. 22). In this Court's view, even accepting the allegations in the amended complaint as true and drawing all inferences in Byrne's favor, the continuing violation doctrine does not apply.
"The `continuing violation' doctrine holds that an act that occurs within 300 days of an EEOC charge may implicate — and therefore make timely — incidents otherwise outside of the mandatory filing deadlines."Miller, 2004 U.S. Dist. LEXIS 17050, at *8 (citing Morgan, 536 U.S. at 114-21). "[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d at 704.
It is well-settled that multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation."Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (citations omitted). Thus, discrete acts of discrimination or retaliation, such as termination, failure to promote, denial of transfer or refusal to hire, constitute separate unlawful employment practices which are actionable only to the extent that each occurred within the appropriate time period. Morgan, 536 U.S. at 114. "There is simply no indication that [invoking] the term `practice' converts related discrete acts into a single unlawful practice for the purposes of timely filing." Id. at 111; see also, Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (repeated demotions and failure to adequately compensate not sufficient for continuing violation theory); Gross v. National Broadcasting, Inc., 232 F. Supp. 2d 58, 68 (S.D.N.Y. 2002) ("The holding in Morgan is in accord with Second Circuit law which states that alleged failures to compensate adequately, transfers, job assignments and promotions cannot form the basis for a continuing violation claim.").
Here, accepting the allegations in the amended complaint as true and resolving all inferences in Byrne's favor, she does not allege, nor is there any inference of, an ongoing discriminatory policy or practice. To the extent the amended complaint refers to policy or practice at all, it states that the handling of two of Byrne's applications for internal postings was contrary to Verizon's practice. See Bailey v. Colgate-Palmolive Co., No. 99 Civ. 3228, 2003 U.S. Dist. LEXIS 8175, at *24-27 (S.D.N.Y. May 13, 2003), aff'd, 2004 U.S. App. LEXIS 6106 (2d Cir. Apr. 1, 2004) (failure to set forth discriminatory policy or mechanism, such as discriminatory seniority lists or employment tests, is fatal to application of the continuing violation doctrine).
Similarly, there is no indication that related instances of discrimination were permitted to continue unremedied for so long as to amount to a discriminatory policy or practice. First, the allegations involve unrelated, discrete acts. Moreover, Byrne alleges that after she complained to management about various employment decisions, she was, in fact, sent to training, deemed "releaseable," and promoted from Sales Engineer I to level II and then level III. According to the amended complaint, these actions all took place within less than one year of her related complaints.
In sum, the continuing violation doctrine does not save the amended complaint's untimely allegations and to the extent that Byrne's disparate treatment and retaliation claims are premised on employment decisions occurring prior to November 20, 2002, they are time-barred.
2. Failure to Exhaust Administrative Remedies
Verizon argues that Byrne failed to exhaust her administrative remedies with regard to all claims set forth in her amended complaint, except as they relate to the purportedly retaliatory performance evaluation and raise in 2003, because she did not first present those claims to the EEOC. Byrne argues that all of the allegations in her amended complaint are "reasonably related" to the claims raised in her EEOC charge.
Ordinarily, a plaintiff commencing a Title VII action must exhaust her administrative remedies by first presenting her claims to the EEOC. Bailey, 2003 U.S. Dist. LEXIS 8179, at *33-34. Failure to do so defeats the purpose of Title VII's statutory notice provision, which is "to encourage settlement of discrimination disputes through conciliation and voluntary compliance." Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985); Burnett v. ESL Fed. Credit Union, 198 F.Supp.2d 307, 314-15 (W.D.N.Y. 2002). Consequently, courts routinely dismiss unexhausted Title VII claims. Bailey, 2003 WL 21108325, at *12 (citing cases).
However, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The Second Circuit has held that "`as a general matter, the failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement.'"Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (quoting Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000)); see also, Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 n. 5 (2d Cir. 2000); Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999). Thus, the requirement can be waived by the litigants or the court.Zipes, 455 U.S. at 393; Pietras, 180 F.3d at 474.
Moreover, under some circumstances, courts may entertain claims that, while not expressly raised in the underlying administrative charge, are "reasonably related" to it. See Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in, Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684, 693 (2d Cir. 1998). In Butts, the Second Circuit discussed three situations where unexhausted claims may be "reasonably related" to properly presented claims: (1) "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;" (2) where the "claim is one alleging retaliation by an employer against an employee for filing an EEOC charge" and (3) "where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Butts, 990 F.2d at 1402-03 (quotations and citations omitted).
The first type of "reasonably related" claim has been understood as allowing for "loose pleading." Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003). This is the test that Byrne urges applies to her claims. Alternatively, Byrne argues that any failure to exhaust should be excused because Verizon has "unclean hands" with regard to the EEOC investigation.
(a) Disparate Treatment
Byrne alleged in her EEOC charge that, because of her sex, she had been subjected to "different terms and conditions of employment includ[ing] work assignments, wages and benefits, promotions, performance evaluations and customer positioning events" (Docket No. 16, Exh. B) She specifically alleged that she was last denied a promotion in November 2002 and was given a negative performance evaluation in March 2003 ( Id.).
It is apparent that the EEOC did attempt to investigate the overall disparate treatment claim. In its determination, the EEOC stated that the "allegations of being subjected to different terms and conditions of employment and not being promoted are untimely because those incidents took place beyond the 300-day statute of limitation" (Docket No. 12, Exh. A).
Time-barred allegations in an EEOC charge "cannot serve as predicates for allegations in the complaint said to be reasonably related." Butts, 990 F.2d at 1403. Thus, even if some of the disparate treatment allegations in the amended complaint were timely; which they are not; they could not be "boot-strapped" to untimely charge allegations. Accordingly, this Court finds that none of the disparate treatment allegations in the amended complaint are reasonably related to the administrative charge.
(b) Hostile Work Environment
In her EEOC charge, Byrne alleged that she had been "subjected to a hostile work environment" and "the hostile work environment has included many comments and conduct which were offensive and sexual in nature" (Docket No. 16, Exh. B). Despite alleging that the hostile work environment had commenced in April 1996 and still existed as of the date the charge was filed, Byrne did not provide any information as to what, in her view, constituted offensive conduct, who engaged in the conduct or when any incidents occurred. It is this Court's view that "boilerplate" language, such as was used by Byrne, is not sufficient to have alerted the EEOC to the conduct now alleged in the amended complaint in support of a hostile work environment claim.
In Butts, the plaintiff claimed in her EEOC charge that she had "constantly been the target of discriminatory practices and treatment" and that she was "denied promotional opportunities and consideration based on my race and sex." 990 F.2d at 1403. In affirming the district court's dismissal of the plaintiff's disparate treatment claims, the Second Circuit noted that:
Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII's investigatory and mediation goals would be defeated.Id. See also, Murray v. Board of Ed. of New York, 984 F.Supp. 169, 176 (S.D.N.Y. 1997) (dismissing the specific failure to promote claim asserted in the complaint where plaintiff's charge alleged only that a demotion "denied me future promotional opportunities"). While precise pleading is not required for purposes of Title VII exhaustion, Deravin, 335 F.3d at 202, a complete absence of specificity defeats a plaintiff's subsequent claims Crespo v. New York City Transit Auth., 01-CV-0671, 2002 U.S. Dist. LEXIS 2977, at *26 (E.D.N.Y. Jan. 7, 2002) ("[s]pecific factual allegations must be made in order for the EEOC to be able to investigate them reasonably"). See Samborski v. West Valley Nuclear Services, Co., 99-CV-0213, 2002 U.S. Dist. LEXIS 12745, at *14-17 (W.D.N.Y. June 25, 2002) (allegations of "sexual harassment" that created a "hostile environment" are boilerplate terms that fail to inform the EEOC of any alleged harassment based on events other than "lesbian" rumors, which are the only specific facts referenced in the charge); Talyansky v. Xerox Corp., 22 F.Supp.2d 55, 56-57 (W.D.N.Y. 1998) (plaintiff's EEOC charge was simply too vague and generalized to allow the EEOC to conduct an investigation and provide a meaningful response), aff'd, 182 F.3d 901 (2d Cir. 1999), cert. denied, 528 U.S. 1020, 120 S. Ct. 530, 145 L. Ed. 2d 410 (1999), reh'g denied, 528 U.S. 1132, 120 S. Ct. 974, 145 L. Ed. 2d 842 (2000).
Byrne objects to Verizon's reliance on Samborski, claiming that the decision erroneously held that a reasonably related claim applies only to alleged discriminatory conduct that occurred after the charge was filed. The Samborski decision set forth multiple bases for dismissing the plaintiff's hostile work environment claim. Verizon relies on a basis other than that to which Byrne takes exception.
Byrne argues that the EEOC would reasonably have been alerted to the existence of a hostile work environment because other women had also filed EEOC complaints against Verizon. She relies on a multi-plaintiff case, Dargento v. Bally's Holiday Fitness Centers, 990 F. Supp. 186 (W.D.N.Y. 1997), in support of her argument.
This Court has already declined to accept Byrne's exhibits regarding unrelated proceedings and to convert this motion to one for summary judgment. Therefore, her argument is unavailing. Moreover, the circumstances in Dargento are readily distinguished from this case. Quite simply, the hostile work environment claim in that case proceeded because those plaintiffs, unlike Byrne, provided the EEOC specific examples of the comments and conduct that formed the basis for their claim, including who had engaged in the offensive conduct. The court found the level of specificity in those charges sufficient to provide for a meaningful EEOC response. 990 F. Supp. at 191-92.
This Court finds Byrne's allegations of hostile work environment in the amended complaint are not reasonably related to her EEOC charge where she couched her hostile work environment claim in vague generalities devoid of any factual basis.
(c) Retaliation
Verizon concedes that Byrne's claim of a retaliatory performance review in March 2003 and a resulting below average raise were sufficiently articulated in the EEOC charge. To the extent that the amended complaint contains other allegations of retaliation occurring prior to Byrne's EEOC filing, they are unexhausted for the same reasons as are her hostile work environment claims; i.e., they were not articulated to the EEOC in a manner that would allow for a meaningful response.
Verizon's motion does not address the post-charge acts of retaliation now alleged by Byrne in her amended complaint. Accordingly, this Court expresses no view on whether the allegations of conduct occurring after Byrne's additional complaints to management and her EEOC filing are reasonably related to the charge.
(d) "Unclean Hands"
Byrne argues that Verizon is estopped from advancing an exhaustion argument because it did not submit a response to Byrne's EEOC charge or engage in pre-suit conciliation. Byrne provides no decisional authority in support for her estoppel argument. As has already been discussed, the touchstone for determining exhaustion is whether Byrne's presentation of her claims to the EEOC was sufficient to define the scope of the investigation and allow for a meaningful investigation. The onus is not on a defendant to define the plaintiff's claims via its response to the charge. Nor is it of any significance that the EEOC may not have been able to conduct a full investigation absent Verizon's participation. As Byrne acknowledges elsewhere in her response to Verizon's motion, "[t]he test is not whether the EEOC did, in fact, investigate the alleged [discriminatory conduct] but whether the [allegations in the complaint] reasonably relate to the charges made to the EEOC and to its investigation." Staples v. Avis Rent-a-Car System, Inc., 537 F. Supp. 1215, 1218 (W.D.N.Y. 1982).
For the reasons stated, this Court finds that Byrne failed to exhaust her administrative remedies with regard to all allegations of disparate treatment, all allegations of hostile work environment, and those allegations of retaliatory conduct occurring prior to the March 2003 performance evaluation.
3. Equal Pay Act Claim
Byrne asserts that she was subjected to sex-based wage disparity in violation of both Title VII and the Equal Pay Act. (Docket No. 12, ¶¶ 91, 126, 143) Verizon moves to dismiss the EPA claim (the seventh cause of action) on the same grounds it raised with respect to Title VII — that is, Byrne's failure to specify the wage claim in her EEOC charge and the untimeliness of the claim.
Unlike Title VII, the EPA does not require a grievant to exhaust administrative remedies prior to the commencement of a civil action. County of Washington v. Gunther, 452 U.S. 161, 175 n. 14 (1981); West v. City of New York, 78 Civ. 1981, 1985 U.S. Dist. LEXIS 23318, at *24 n. 2 (S.D.N.Y. Jan. 18, 1985);Erickson v. New York Law School, 585 F. Supp. 209, 214 (S.D.N.Y. 1984). Therefore, to the extent Byrne seeks relief under the EPA for an allegedly discriminatory wage disparity, it is immaterial whether she raised that issue in her EEOC charge.
As for Verizon's timeliness argument, the limitations period for an EPA claim is two years after the cause of action accrues, or three years if the claim arises out of a willful violation. 29 U.S.C. § 255(a). Under the EPA, a separate claim accrues each time the claimant receives a paycheck reflecting discriminatory wages. Pollis v. The New Sch. for Social Research, 132 F.3d 115, 119 (2d Cir. 1997); Downes v. J.P. Morgan Chase Co., 03 Civ. 8991, 2004 U.S. Dist. LEXIS 10510, at *23 (S.D.N.Y. June 8, 2004); Erickson, 585 F.Supp. at 213.
Thus, Byrne's seventh cause of action survives Verizon's motion to the extent she alleges that paychecks she received on or after February 2, 2001 reflect a discriminatory pay disparity.
Actual recovery for this three year period, as opposed to the two year limitations period generally applicable to such claims, will depend on Plaintiff's ability to prove not only the existence of a violation, but willfulness.
4. The Human Rights Law Claims
Byrne's claims under the HRL must be brought within three years of the alleged discriminatory act or acts. N.Y.C.P.L.R. § 214(2);Van Zant, 80 F.3d at 714. Unlike Title VII, the HRL does not include an administrative exhaustion requirement. Crespo, 2002 U.S. Dist. LEXIS 2977, at *31; see N.Y. EXEC. L. § 297(9) ("Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . ."). Thus, to the extent Byrne's HRL allegations are premised on conduct occurring on and after February 2, 2001, her claims are timely and procedurally viable.
In moving to dismiss, Verizon characterizes Byrne's HRL claims as mere "tag alongs" to the Title VII claims. It urges that all HRL allegations that correspond to procedurally deficient Title VII claims should be dismissed. Verizon points to other decisions in this Circuit which have declined to exercise supplemental jurisdiction based on concerns that the plaintiffs would, in effect, get their Title VII claims in the back door of the courthouse were the HRL claims to proceed. Crespo, 2002 U.S. Dist. LEXIS 2977, at *32-33; Cable v. New York State Thruway Auth., 4. F. Supp. 2d 120, 127 (N.D.N.Y. 1998); McNight v. Dormitory Auth. of State of New York, 995 F. Supp. 70, 81 (N.D.N.Y. 1998); Spurlock v. NYNEX, 949 F. Supp. 1022, 1035 (W.D.N.Y. 1996).
This Court acknowledges that the courts in each of the foregoing decisions, without engaging in analysis, exercised their discretion to decline supplemental jurisdiction. However, this Court concludes that such an exercise of discretion is not appropriate in this case.
Pursuant to 28 U.S.C. § 1367(a) and subject to that section's stated exceptions, "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." [emphasis supplied]. District courts may decline to exercise supplemental jurisdiction where (i) a novel or complex issue of state law is raised, (ii) the state law claim substantially predominates over the federal claims, (iii) the court has dismissed all claims over which it has original jurisdiction, or (iv) there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c).
In this Court's view, none of the exceptions exist here. The HRL allegations form part of the same case or controversy, the substantive analysis of those allegations is based on federal law, the Court has original jurisdiction over Byrne's remaining Title VII retaliation and EPA claims and the state law claims do not predominate, and Verizon has presented no other compelling reason for declining jurisdiction. Its "back door" argument ignores the fact that Byrne's HRL claims arise from a separate and independent statutory basis for recovery. In sum, there is no reason that Byrne should be required to litigate her HRL disparate treatment, hostile work environment and retaliation claims in another forum where they share a common nucleus of operative fact with the remaining federal claims such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
That being said, this Court reiterates that the HRL claims are subject to a three-year statute of limitations. Byrne's suggestion that the continuing violation doctrine applies to extend the limitations period for her state law claims is rejected for the same reasons as were discussed with respect to her Title VII claims.
IV. CONCLUSION
For the foregoing reasons, Verizon's motion to dismiss the Title VII disparate treatment and hostile work environment claims (first and third causes of action) is granted; its motion to dismiss the Title VII retaliation claims that are based on conduct occurring prior to Plaintiff's March 2003 performance review is granted (fifth cause of action); its motion to dismiss the HRL claims is denied (second, fourth and sixth causes of action); and its motion to dismiss the Equal Pay Act claim is denied (seventh cause of action).
ORDERS
IT HEREBY IS ORDERED, that Defendants' Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) (Docket No. 18) is GRANTED in part, and DENIED in part.
FURTHER, that Defendants' Motion to Dismiss the original Complaint pursuant to Rule 12(b)(6) (Docket No. 3) is DENIED as moot.
SO ORDERED.