Opinion
O1-CV-0671
January 4, 2002
MEMORANDUM ORDER
Plaintiff Rose Crespo ("Crespo") brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq.; 42 U.S.C. § 1981; and the New York City Human Rights Law, N.Y. Exec. Law § 290E-1 et seq. Defendant New York City Transit Authority (the "NYCTA") now moves (i) to dismiss Counts I through IV of Crespo's First Amended Complaint, and (ii) to strike certain allegations in the First Amended Complaint. For the reasons that follow, the NYCTA's motion is granted in part and denied in part.
"The NYCTA also moves for summary judgment on Count V in the First Amended Complaint, a breach of contract claim. However, in her opposition papers, Crespo agreed to withdraw that claim. (See Pl. Mem. at 2.)
FACTUAL AND PROCEDURAL BACKGROUND
I. The underlying facts
Crespo, a Puerto Rican woman, was hired by the NYCTA on August 16, 1999, as a bus driver, working out of the Casey Stengel Bus Station in Flushing, Queens (the "Bus Station"). (See First Amended Complaint ("Compl.") ¶¶ 9, 52.) Crespo worked for the NYCTA for approximately three months, until December 2, 1999, when she was fired. (See id.) Crespo contends that, throughout the course of her employment with the NYCTA, she was repeatedly sexually and racially harassed, and discriminated against on the basis of her race and gender. With respect to sexual harassment, Crespo alleges, for example, that various male employees at the Bus Station "approached . . . Crespo from the rear and, without solicitation or warning, rubbed against her, leaned into her body, breathed hotly on the back of her neck, and attempted to embrace her from behind by stretching both arms around her" on a nearly daily basis. (Id. ¶ 22.) Regarding racial harassment, Crespo alleges that numerous employees at the Bus Station made disparaging remarks concerning Crespo's Puerto Rican heritage, "mocked . . . Crespo's Puerto Rican accent" and addressed her "in an exaggerated, pronounced Spanish accent." (Id. ¶ 54.) As a result of these actions, Crespo alleges that the Bus Station was a racially and sexually hostile work environment. (See id. ¶¶ 64, 68, 72.)
Crespo also contends that she was fired for discriminatory reasons. Crespo asserts that, on or about November 20, 1999, while on her bus route, she was stopped by two Caucasian male supervisors employed by the NYCTA. (See id. ¶ 35.) The supervisors told Crespo that a hit and-run complaint had just been lodged against the NYCTA, and that they were investigating the claim. (See id.) Crespo informed the supervisors that she had not been in any accidents; the supervisors then examined the bus, found no damage, and permitted Crespo to finish her route. (See id.) At the end of her route, however, Crespo was transported to the NYCTA's headquarters and administered a drug and alcohol test, which came back negative. (See id. ¶ 36.) Then, after returning to the Bus Station, Crespo was forced to sign an internal Accident Report concerning the purported hit-and-run, despite the fact that Crespo protested that no such accident had taken place. (See id. ¶ 37.) Approximately two weeks later, Crespo was summoned to her supervisor s office and asked to resign. (See id. ¶ 39.) When Crespo refused, she was fired for "poor performance." (See id.) Crespo claims that her termination was not based on any accident, but rather was due to her gender and race. She asserts that her "Caucasian male peers were accused of and actually committed far more serious offenses, yet remained employed with [the] NYCTA." (Id. ¶ 40.)
Finally, Crespo also alleges that the NYCTA retaliated against her for filing a charge of discrimination with the EEOC (as described below). Sometime in January 2000, shortly after Crespo filed her charge of discrimination, she once again applied to the NYCTA for a job as a bus operator. (See id. ¶ 48.) Crespo was informed that she was required to take an examination known as the Bus Operator Selection Survey, or BOSS examination. (See id. par; 49.) Crespo apparently had already taken and passed the BOSS examination prior to her earlier employment with the NYCTA. Crespo alleges that, after once again taking the BOSS examination, the NYCTA falsely informed her that she had failed the BOSS examination, and therefore was not qualified to work for the NYCTA. (See id. ¶ 51.) Crespo contends that she was forced to re-take the BOSS examination, and was falsely told she failed the examination, in direct retaliation for filing her charge of discrimination. (See id.)
II. The procedural history
Shortly after being fired, Crespo filed a complaint against the NYCTA with the New York City Commission on Human Rights (the "EEOC Charge"). (See id. ¶ 6; Def. Mem. Ex. 2.) Insofar as it is relevant for present purposes, the complaint alleged that:
Beginning on or about November 20, 1 999[,] and continuing until on or about December 2, 1999, [Crespo's supervisor] subjected complainant to disparate treatment, including but not limited to, citing complainant for unsubstantiated performance deficiencies and recommending the termination of her employment based upon unsubstantiated infractions. Upon information and belief, [Crespo's supervisor] did not treat similarly-situated, male employees in this manner.
On or about December 2, 1999, [the NYCTA] terminated complainant's employment.
Complainant charges that respondents have discriminated against her by denying her equal terms and conditions of employment because of her gender in violation of Section 8-107.1(a) of the Administrative Code of the City of New York and have damaged her thereby.
Complainant also charges that the respondents have violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., on the basis of her race, and hereby authorizes the New York City Commission on Human Rights to accept this verified complaint on behalf of the Equal Employment Opportunity Commission, subject to the statutory limitations contained in Title VII.
(Def. Mem. Ex. 2 ¶¶ 5-8.) After 180 days passed without any action by the EEOC, a "Right to Sue" letter was issued to Crespo on November 8, 2000. (See Compl. ¶ 6; Def. Mem. Ex. 3.)
Crespo commenced this action on February 6, 2001. After the NYCTA moved to dismiss the complaint, Crespo filed a First Amended Complaint on May 11, 2001. In her amended complaint, Crespo asserts claims for: sexual harassment, including a hostile work environment for women, sex discrimination, and retaliation, all in violation of Title VII and the New York State Human Rights Law (Counts I and II, respectively) (see Compl. ¶¶ 60, 64); racial harassment, including a hostile work environment for non-Caucasians, race discrimination, and retaliation, all in violation of Title VII and the New York State Human Rights Law (Counts III and IV, respectively) (see Compl. ¶¶ 68, 72); and breach of contract (see Compl. ¶¶ 77-81).
III. The present motion
On July 30, 2001, the NYCTA filed the present motion, in which the NYCTA seeks two forms of relief. First, the NYCTA seeks the dismissal of Counts I through IV of the First Amended Complaint, for a number of reasons. The NYCTA contends that, insofar as those claims allege harassment and a hostile work environment in violation of Title VII, they must be dismissed, because Crespo failed to include those allegations in her EEOC Charge. (See Def. Mem. at 4-11.) According to the NYCTA, the New York Human Rights Law claims alleging harassment and a hostile work environment must be dismissed for the same reason. (See id. at 10-11.) Finally, the NYCTA argues that Crespo's retaliation claim, to the extent it alleges retaliation prior to December 28, 1999, must be dismissed because there are no allegations in the First Amended Complaint that Crespo engaged in any protected activity prior to her termination. (See id. at 10.)
Although the NYCTA purports to seek dismissal of Counts I through IV in their entirety, it is clear that the NYCTA has not addressed those claims to the extent they allege gender or race-based discrimination i e to the extent those claims allege that Crespo was terminated, or was subject to different standards of conduct or different disciplinary measures, on the basis of her race and/or gender. Accordingly, the Court will treat the NYCTA's motion as a partial motion to dismiss.
Presumably, the NYCTA meant December 2, 1999, and not December 28, 1999, as Crespo's employment ended on the earlier date.
Second, the NYCTA seeks to strike certain allegations in the First Amended Complaint. The NYCTA avers that, once the Court dismisses Crespo's harassment and hostile work environment claims, all that remains are Crespo's race and gender-based discrimination and retaliation claims. The NYCTA contends that allegations regarding sexual harassment and hostile work environment are irrelevant to such claims, and, accordingly, that numerous paragraphs relating to the harassment and hostile work environment claims should be stricken from the First Amended Complaint, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. (See Def. Mem. at 13-14.)
DISCUSSION
I. The Motion to Dismiss
The NYCTA has moved to dismiss portions of Counts I through IV pursuant to Federal Rule of Civil Procedure 12(b)(6). Before addressing the merits of the NYCTA's motion, however, the Court must address two procedural issues which arise from the motion.
A. The 12(b)(1) vs. 12(b)(6) issue
Although the NYCTA has styled its motion as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court is not required to consider it as such if the motion actually seeks some other form of relief, since "the label attached to a motion does not control its substance." Prudential Real Estate Affiliates. Inc. v. PPR Realty. Inc., 204 F.3d 867, 880 (9th Cir. 2000); accord Snyder v. Smith, 736 F.2d 409, 419 (7th Cir. 1984) ("The fact that Smith did not label his defense as one of venue does not matter. The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril."); cf. Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 136 (2d Cir. 2000) ("Regardless of the label the movant places on her postjudgment motion, we have found it appropriate to examine the timing and substance of the motion in order to determine whether it should be deemed to extend the time for appeal."); McLearn v. Cowen Co., 660 F.2d 845, 849 (2d Cir. 1981) ("The failure of plaintiffs counsel to refer to the proper rule number does not prevent us from granting the relief that plaintiff in substance asked for, especially where defendants had notice of and argued against that relief."). In this case, it is unclear whether the NYCTA actually is alleging that Crespo fails to state a claim, or rather contends that the Court lacks subject matter jurisdiction, which is properly challenged under Rule 12(b)(1).
The distinction matters because, when deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court's consideration is limited to the factual allegations in the complaint; documents incorporated by reference into the complaint; matters of which judicial notice may be taken; and documents either in the plaintiffs possession or of which the plaintiff had knowledge and relied on in bringing suit. Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), however, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998) (citation omitted). In this case, both Crespo and the NYCTA have submitted evidence extraneous to the First Amended Complaint in support of, and in opposition to, the NYCTA's motion. Thus, the proper characterization of the NYCTA's motion is necessary in order to permit the Court to determine what evidence it should consider when resolving the motion, as well as the proper standard of review to be applied.
The fact that the NYCTA relies heavily on Butts v. City of New York. Department of Housing Preservation and Development, 990 F.2d 1397 (2d Cir. 1993), to support its motion seems to suggest that the NYCTA actually is moving under Rule 12(b)(1), and not Rule 12(b)(6). (See Def. Mem. at 4-10.) In Butts, the defendant moved to dismiss the complaint on grounds similar to those raised by the NYCTA in this case. There, however, the defendant moved under both Rules 12(b)(1) and 12(b)(6). The district court granted the motion, without specifying under which rule the motion was being granted. See Butts v. City of New York. Department of Housing Preservation and Development, No. 91 CIV 5325, 1992 WL 170681, at *5 (S.D.N Y July 7, 1992). The Second Circuit affirmed in part, and, in so doing, stated that "[a] district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge." 990 F.2d at 1401 (emphasis added) (citations omitted). The Second Circuit has reaffirmed the "jurisdictional" rationale of Butts on numerous occasions. See e.g., Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 613-14 (2d Cir. 1999) ("The federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charge."); Brown v. Coach Stores. Inc., 163 F.3d 706, 712 (2d Cir. 1998) (same); Wilson v. Fairchild Republic Co., 143 F.3d 733, 739 (2d Cir. 1998) (same).
Other Second Circuit courts have relied on this language, and dismissed claims for lack of subject matter jurisdiction where the plaintiff failed to raise his claims with the EEOC prior to filing his lawsuit. See, eg., Garris v. Dep't of Corr., 170 F. Supp.2d 182, 189 (D. Conn. 2001) (court "does not have jurisdiction" over claims not presented to EEOC);Patterson v. CBS. Inc., No. 94 CIV 2562, 2000 WL 666337, at *9 (S.D.N.Y. May 22, 2000) (court "could not entertain" discrimination claim not raised in EEOC charge); Findlay v. Reynolds Metals Co., 82 F. Supp.2d 27, 32-33 (N.D.N.Y. 2000) ("Because Plaintiffs disparate treatment charge was never presented to the EEOC, this Court is without jurisdiction to consider that claim."); James v. Newsweek, No. 96 CIV 0393, 1999 WL 796173, at *8 (S.D.N.Y. Sept. 30, 1999) (granting motion to dismiss for lack of subject matter jurisdiction on claims not presented to EEOC).
However, the Second Circuit recently retreated from the "jurisdictional" language in Shah, Brown, Wilson, and Butts. In Francis v. City of New York, the Second Circuit held that requiring a claim to be included within an EEOC charge in order to confer subject matter jurisdiction over that claim on a federal court is contrary to both Supreme Court precedent and the Congressional intent behind Title VII. 235 F.3d 763, 767-68 (2d Cir. 2000). Accordingly, the court held 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. . . ." Id. at 768 (alteration in original) (internal quotation marks and citation omitted); see also Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 393 (1982) ("the filing of 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"); Holtz v. Rockefeller Co., 258 F.3d 62, 82 n. 5 (2d Cir. 2001).
The Second Circuit, however, did not feel compelled to overturn Butts and its progeny, because the "jurisdictional" language in Butts allegedly "played no part in [the court's] holding" in that case. Francis, 235 F.3d at 768.
As a result, the NCYTA's motion is properly construed as a motion under Rule 12(b)(6). The EEOC exhaustion requirement is alive and well, and "stands as "an essential element of Title VII's statutory scheme.'"Francis, 235 F.3d at 768 (quoting Butts, 990 F.2d at 1401). Failure to comply with that requirement, however, will not divest a federal court of subject matter jurisdiction over the unexhausted claim. Rather, a defendant can insist on compliance with the exhaustion requirement by moving to dismiss the unexhausted claim pursuant to Rule 12(b)(6).
B. Conversion of the 12(b)(6) motion into a motion for summary judgment
Having determined that the NYCTA's motion is properly construed as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court next must decide whether to convert the motion into a motion for summary judgment. Rule 12(b) provides that "[i]f, on a motion [under Rule 12(b)(6)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Here, numerous items which appear to be "outside" the First Amended Complaint have been submitted by the parties. For example, Crespo has submitted an affidavit detailing her conversations with an investigator working on her EEOC Charge, as well as a number of letters purportedly sent to that investigator. Crespo also has submitted documents regarding her effort to obtain unemployment benefits after being fired by the NYCTA. (See Pl. Mem. Exs. A-E.) The NYCTA has submitted a copy of notes made by the investigator, as well as the Commission on Human Rights's "Intake Form," on which Crespo first detailed the allegedly discriminatory acts taken by the NYCTA. In addition, the NYCTA has submitted its Answer to Crespo's EEOC Charge, as well as interrogatories and requests for documents in that matter. (See Def. Reply Exs. 9, 11-15.)
While, on first glance, all of these items appear to be "outside the pleadings," it is clear that some of them nevertheless may be considered by the Court when deciding the NYCTA's motion. As noted above, the Second Circuit has held that certain matters, while technically "outside the pleadings," may properly be considered by a court when deciding a Rule 12(b)(6) motion, including: documents incorporated by reference into the complaint; matters of which judicial notice may be taken; and documents either in the plaintiffs possession or of which the plaintiff had knowledge and relied on in bringing suit. Brass, 987 F.2d at 150. In this case, with the exception of her affidavit, all of the items submitted by Crespo may be considered by the Court, because each of those items was within Crespo's possession, and she appears to have relied on them in bringing suit. See id. Furthermore, the "Intake Forms" submitted by the NYCTA may be considered, because Crespo had knowledge of, and presumably relied on, those forms when instituting this action.
However, the remaining items — Crespo's affidavit, the investigator's notes, and the Answer and discovery requests in the Commission on Human Rights matter — do not fall "within" the First Amended Complaint. The Court therefore faces a choice: it can either exclude these materials and decide the motion solely on the First Amended Complaint and those documents submitted by the parties which are not "outside" of that pleading, or it can convert the motion into a motion for summary judgment, consider all the materials submitted, and give the parties an opportunity to provide other supporting material. See Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988);D'Jamoos v. Griffith, No. 00 CV 1361, 2001 WL 1328592, at *4 (E.D.N.Y. Aug. 1, 2001) (citation omitted). Because these proceedings are at an early stage (with no discovery having yet been completed), and because the NYCTA's motion is directed at only a portion of Crespo's claims, the Court chooses the former option, and will not consider the materials deemed "outside" the First Amended Complaint. See Fine Foods Int'l (New York) v. N. Am. Fine Foods. Inc., No. 99 CV 1062, 1999 WL 1288681, at *1 n. 1 (E.D.N.Y. Nov. 12, 1999); AFSCME v. Nassau County, 609 F. Supp. 695, 700 (E.D.N.Y. 1985).
With these preliminary procedural issues resolved, the Court turns to the substance of the NYCTA's motion.
C. The motion to dismiss standard
On a Rule 12(b)(6) motion, the Court must accept as true the factual allegations in the complaint and view the complaint in the light most favorable to the non-moving party. Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995). Dismissal under Rule 12(b)(6) may only be granted if "it appears beyond doubt that the Plaintiff can prove no set of facts in support of her claim which entitle her to relief." Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (internal quotations omitted).
D. Crespo's Title VII claims alleging harassment and a hostile work environment must be dismissed
The NYCTA argues that Crespo has failed to state either a harassment or a hostile work environment claim under Title VII, based on either race or gender, because Crespo failed to include those claims in her EEOC Charge. (See Def. Mem. at 4-10.) In response, Crespo asserts that her harassment and hostile work environment claims would reasonably flow from any investigation concerning her race and gender-based discrimination claims, which were included in her EEOC Charge. Accordingly, Crespo asserts that those claims have been exhausted. (See Pl. Mem. at 13-20.) Crespo also argues that the letters she sent to the investigator working on her EEOC Charge should be considered when evaluating the scope of the investigation flowing from the claims in that charge. Because Crespo allegedly raised the gender-and race-based harassment and hostile work environment claims in those letters, she asserts that those claims have been exhausted. (See id.) Neither of Crespo's arguments has merit.
1. The harassment and hostile work environment claims are not "reasonably related" to the claims in the EEOC Charge
As discussed above, exhaustion of remedies is a precondition to raising a Title VII claim in federal court See e.g., Holtz, 258 F.3d at 83. This exhaustion requirement is "designed to give the administrative agency the opportunity to investigate, mediate, and take remedial action. . . ."Shah, 168 F.3d at 614 (internal quotation marks and citation omitted). Nonetheless, "claims 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." Id; accord Holtz, 258 F.3d at 83.
The Second Circuit has recognized three types of situations in which claims not alleged in an EEOC charge are "reasonably related" to the allegations in the charge such that it would "be unfair to civil rights plaintiffs to bar such claims in a civil action." Butts, 990 F.2d at 1402. The first situation is 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." Id. Essentially, this situation is an allowance of "loose pleadings," and is recognized because "EEOC charges frequently are filled out by employees without the benefit of counsel." Id. The second situation is where a claim alleges retaliation against the employee for filing an EEOC charge. Id. The third and final situation is where a claim alleges "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id.
It does not appear that either the second or third Butts situations are relevant with respect to the harassment and hostile work environment claims in this case, and Crespo does not argue otherwise. Rather, Crespo argues that her harassment and hostile work environment claims should be expected to fall within the scope of an investigation into the claims alleged in Crespo's EEOC Charge. This argument is meritless. Crespo's EEOC Charge merely alleged that she had been "subjected . . . to disparate treatment" by (i) being cited for "unsubstantiated performance deficiencies" and (ii) being "recommend[ed] for termination . . . based upon unsubstantiated infractions," and that the NYCTA "did not treat similarly-situated, male employees in this manner." (Pl. Mem. Ex. B.) These allegations do not even remotely suggest harassment by NYCTA employees, or a hostile work environment, based on either race or gender. Simply put, there is no reason to conclude that an investigation into charges of allegedly fabricated "performance deficiencies" and "infractions" would lead an investigator to inquire about instances of harassment, or about a hostile work environment.
Numerous courts have rejected arguments similar to Crespo's. For example, in Eaton v. American Media Operations, Inc., the plaintiff alleged discrimination in pay and promotion on the basis of gender and national origin in her EEOC charge. No. 96 CIV 6158, 1997 WL 7670, at *2 (S.D.N.Y. Jan. 9, 1997). In her federal lawsuit, however, she brought a sexual harassment claim. In rejecting that claim as unexhausted, the court stated "a claim of sexual harassment is not itself reasonably related to [a] claim of sex . . ., discrimination such that plaintiff should be entitled to pursue it." Id. Similarly, in Szarka v. Reynolds Metals Co., the plaintiffs EEOC charge stated that "I believe that [the defendant union] is failing to represent me because of my sex and my age (46) in willful violation of Title VII." 17 F. Supp.2d 115, 124 (N.D.N.Y. 1998). The court dismissed the plaintiffs harassment and hostile work environment claims, stating:
The above-quoted allegation in the EEOC complaint states a claim of sex and age discrimination against the Union arising out of the Union's alleged failure to represent her in her grievance proceedings. There is no mention of any hostile work environment or harassment. The investigation into plaintiffs grievance, the Union's handling of the grievance, and even the underlying reasons for the grievance, would not fall within the scope of and could not reasonably be expected to grow into an investigation of a hostile work environment.Id.; see also Ghose v. Century 21. Inc., 108 F. Supp.2d 373, 376 (S.D.N.Y. 2000) (hostile work environment and retaliation claims not reasonably related to claims of racial and national origin discrimination); Findlay v. Reynolds Metals Co., 82 F. Supp.2d 27, 33-34 (N.D.N.Y. 2000) (disparate treatment claim not reasonably related to hostile work environment and retaliation claims); Koster v. Chase Manhattan Bank, 554 F. Supp. 285, 287 n. 5 (S.D.N.Y. 1983) ("an EEOC investigation into charges of sex discrimination in areas such as pay, promotion, and conditions of employment could not reasonably be expected to uncover incidents of sexual harassment"); cf. Burnham v. Bd. of Educ. of City of N.Y., No. 96 Civ. 7912, 1997 WL 317389, at *3 (S.D.N.Y. June 11, 1997) (age-based discrimination claim not reasonably related to disability-based claim). Therefore, because Crespo's harassment and hostile work environment claims "rely on different facts and embody different legal theories" than the discrimination claims raised in the EEOC Charge, the EEOC Charge "would not prompt an investigation into the facts that underlie" her claims. Porter v. Texaco. Inc., 985 F. Supp. 380, 384 (S.D.N.Y. 1997).
2. The letters sent to the investigator cannot expand the scope of Crespo's EEOC Charge
Crespo next argues that a number of letters she sent to the investigator working on her EEOC Charge "supplemented" her charge to include the harassment and hostile work environment claims she asserts here. (See Pl. Mem. at 14-18.) Crespo's argument fails for two reasons.
First, two of the three letters Crespo refers to make no reference to incidents of harassment or a hostile work environment. Crespo's April 9, 2000 letter merely alleged that she was "being denied . . . equal terms and conditions," and that she "was treated differently . . . due to [her] gender and race." (April 9, 2000 letter, annexed to Pl. Mem. Ex. B.) Her September 7, 2000 letter essentially makes the same allegations, and nowhere refers to harassment or a hostile work environment. (See September 9, 2000 letter, annexed to Pl. Mem. Ex. B.)
Only Crespo's October 31, 2000 letter makes any reference to a hostile work environment, and that letter simply states that "[a]t [the Bus Station] they made my life difficult in the way they treated me. They where [ sic] very uncooperative and subjected me to a hostile environment as a women [ sic], and more, as a Hispanic woman." These vague allegations, however, are insufficient to expand the scope of Crespo's EEOC Charge to include a claim of harassment or a hostile work environment. While "loose pleading" in a charge of discrimination is allowed, "the loose pleading allowance is not satisfied by vague, generalized statements. Specific factual allegations must be made in order for the EEOC to be able to investigate them reasonably. "Were we to permit . . . 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.'" Cooper v. Xerox Corp., 994 F. Supp. 429, 432 (W.D.N.Y. 1998) (quoting Butts, 990 F.2d at 1403); accord Oshinsky v. N YC. Hous. Auth., No. 98 CIV 5467, 2000 WL 218395, at *6 (S.D.N.Y. Feb. 23, 2000) (statement in letter to EEOC that "I am still being sexually harassed by my male co-workers and my various supervisors have still refused to remedy the situation" insufficient to expand scope of EEOC charge). The lone, unspecified and unsupported allegation of a "hostile work environment" in Crespo's October 31, 2000 letter therefore is insufficient to sweep her harassment and hostile work environment claims within the ambit of her EEOC Charge.
Notably, this letter was submitted nearly a year after Crespo filed her EEOC Charge, and only eight days before the EEOC issued its "Right to Sue" letter.
Second, and more importantly, even if Crespo's letters to the investigator had adequately detailed the alleged harassment and hostile work environment, those letters could not have expanded the scope of that charge as a matter of law. Crespo is correct that certain courts have considered allegations outside the text of an EEOC charge when determining the scope of the claims raised in that charge. See, e.g., Commer v. City of N.Y., No. 93 CIV 7408, 1996 WL 374149, at *2 (S.D.N.Y. July 3, 1996) ("in determining the scope of the investigation that can reasonably be expected [to flow from an EEOC charge], the court must consider any attachments that a complainant has submitted with his EEOC complaint"); Eaton, 1997 WL 7670, at *3; Minetos v. City Univ. of N.Y., 875 F. Supp. 1046, 1052 (S.D.N.Y. 1995). The reasoning in these cases comports with 29 C.F.R. § 1601.12(b), which permits an EEOC charge to be amended after it has been filed. The Second Circuit recently held, however, that allegations outside the text of an EEOC charge cannot "enlarge the scope of the charge to encompass new unlawful employment practices or bases for discrimination." Holtz, 258 F.3d at 83. This is because written statements submitted subsequent to the filing of an EEOC charge may only "clarify or amplify allegations made" in the original charge or "alleg[e] additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge." Id. (quoting 29 C.F.R. § 1601.12(b)). Accordingly, Crespo's letters to the EEOC investigator cannot expand the scope of the EEOC Charge to include either the harassment or hostile work environment claim, as those claims "encompass new unlawful employment practices" not specified in the text of the EEOC Charge. Id.
Surprisingly, neither the NYCTA nor Crespo cites Holtz, a recent Second Circuit case, despite the fact that it discusses a number of the issues raised in the NYCTA's motion.
For the foregoing reasons, Crespo's Title VII claims, insofar as they allege harassment or a hostile work environment on the basis of gender and race, must be dismissed.
E. Crespo's HRL claims alleging harassment and a hostile work environment must be dismissed
Much like her Title VII claims, Crespo also has asserted claims of discrimination, harassment, hostile work environment and retaliation, based on race and gender, against the NYCTA under the New York Human Rights Law ("HRL"), New York Executive Law Section 290 et seq. (See Compl. ¶¶ 63-66, 71-74.) And, like its motion to dismiss Crespo's Title VII claims, the NYCTA moves to dismiss the HRL claims, insofar as they allege harassment and a hostile work environment.
In support of its motion to dismiss these claims, the NYCTA first argues that, "[b]ecause claims brought under the HRL are analytically identical to claims brought under Title VII, Plaintiffs HRL retaliation claims prior to December 28, 1999 fail for the same reasons that Plaintiffs Title VII retaliation claims fail." (Def. Mem. at 10.) This argument misses the mark. While the analytical framework for thesubstance of a claim under Title VII may be the same as an HRL claim see Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001), the procedural requirements are not parallel. Here, Crespo's Title VII claims, to the extent they are based on harassment or a hostile work environment, fail only because Crespo did not properly exhaust her administrative remedies vis-a-vis those claims. There is no analogous exhaustion requirement for claims under the Human Rights Law, however.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. . . ."); Branker v. Pfizer, Inc., 981 F. Supp. 862, 865 (S.D.N.Y. 1997) ("Branker's claim under the NYSHRL is not administratively barred, because that statute contains no requirement of exhaustion of administrative remedies.");Hernandez v. N.Y.C. Law Dep't Corp. Counsel, No. 94 Civ. 9042, 1997 WL 27047, at *10 (S.D.N.Y. Jan. 23, 1997) ("Unlike Title VII, the NYSHRL . . . do[es] not require exhaustion of administrative remedies.")
New York Executive Law Section 297(9) also contains an election of remedies provision that strips an individual of a private right of action if she has "filed a complaint . . . with any local commission on human rights." Here, Crespo filed a complaint with the New York City Human Rights Commission. However, Crespo's HRL claims are not barred under Section 297(9), because that section also provides that a complainant may ask the Commission to dismiss her complaint in order to pursue her claims in court. Here, it appears that Crespo did exactly that. (See Def. Mem. Ex. 4.)
The NYCTA's second argument is more persuasive. The NYCTA argues that, because Crespo fails to state a Title VII claim either for harassment or a hostile work environment, then Crespo's "tag along" HRL harassment and hostile work environment claims should be dismissed, because allowing "the state law claims to continue in federal court [once related federal claims have been dismissed] would enable plaintiff to circumvent the statutory administrative exhaustion requirements." (Def. Mem. at 11 (quoting Spurlock v. NYNEX, 949 F. Supp. 1022, 1035 (W.D.N.Y. 1996)).) Thus, the NYCTA contends that the only claims which should survive "are those which correspond to the surviving federal claims." (Id.) The Court agrees. Because the analysis of Crespo's harassment and hostile work environment claims under the HRL would be the same as the analysis of those claims under Title VII, permitting Crespo to assert those claims after the Court has dismissed the corresponding claims under Title VII would essentially allow Crespo to get the claims into this Court through the courthouse's back door. In such a situation, it is more appropriate for the Court to decline to exercise supplemental jurisdiction over the state law claims. See, e.g., Cable v. N.Y.S. Thruway Auth., 4 F. Supp.2d 120, 127 (N.D.N.Y. 1998); McNight v. Dormitory Auth. of State of N.Y., 995 F. Supp. 70, 81 (N.D.N Y 1998); Spurlock, 949 F. Supp. at 1035.
F. To the extent they are based on post-termination acts. Crespo's retaliation claims survive
The NYCTA also moves to dismiss Crespo's Title VII retaliation claims, insofar as those claims allege retaliation which occurred prior to the date Crespo was fired by the NYCTA. (See Def. Mem. at 9-10; Def. Reply at 1-2.) The NYCTA argues that Crespo has failed to allege that she engaged in any protected activity prior to the termination of her employment by the NYCTA, and therefore Crespo has failed to state a claim for retaliation. (See id.)
The NYCTA has achieved a pyrrhic victory. While it is true that the First Amended Complaint alleges that the NYCTA retaliated against Crespo "while [she] was an employee of Defendant NYCTA" (Compl. ¶¶ 61, 65, 69, 73), it is clear that Crespo's retaliation claim is based on conduct which occurred after she was fired. (See id. ¶¶ 48-51; see also Pl. Mem. at 24-26.) There are no allegations in the First Amended Complaint that Crespo was retaliated against for asserting her rights while she was employed. Accordingly, there is no real dispute between the parties: Crespo has not alleged that the NYCTA retaliated against her for conduct occurring during her employment (notwithstanding the poor wording in the complaint), and the NYCTA does not argue that Crespo fails to state a retaliation claim for conduct occurring after the termination of Crespo's employment. Thus, this portion of the NYCTA's motion is granted, though doing so apparently will have no impact on this case.
II. The Motion to Strike
Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court may strike from "any pleading any . . . redundant, immaterial, impertinent, or scandalous matter." Resolution of a Rule 12(f) motion is left to the Court's discretion. Fiore v. McDonald's Corp., Nos. CV-95-2708, 96-CV-0376, 1996 WL 331090, at *12 (E.D.N.Y. June 12, 1996). However, motions to strike "are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation." Lennon v. Seaman, 63 F. Supp.2d 428, 446 (S.D.N.Y. 1999) (citation omitted); accord Eaton, 1997 WL 7670, at *5; Fiore, 1996 WL 331090, at *12. As the Second Circuit has noted, "courts should not tamper with the pleadings unless there is a strong reason for so doing." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976).
In this case, the NYCTA moves to strike a number of paragraphs in Crespo's First Amended Complaint, on the ground that those paragraphs are immaterial and impertinent to the claims in the complaint. (See Def. Mem. at 11-14.) Specifically, the NYCTA argues that paragraphs 15, 23-25, 27, 29, 33-34, 46-47, and 52 of the First Amended Complaint should be stricken, because those paragraphs allegedly relate only to Crespo's now-dismissed harassment and hostile work environment claims, and not her discrimination and retaliation claims. (See id. at 13-14.)
In response, Crespo argues that, even if the harassment and hostile work environment claims are dismissed, the paragraphs supporting those claims should not be stricken because they are relevant to prove the NYCTA's discriminatory intent, a necessary component of Crespo's discrimination claims. (Pl. Mem. at 22-24.) Crespo's argument has merit. In fact, this very same argument led Southern District Judge Mukasey not to strike similar allegations concerning sexual harassment in Eaton. There, after the court dismissed the plaintiffs sexual harassment claim, the defendant moved to strike all of the allegations in the plaintiffs complaint related to that claim. Judge Mukasey denied that motion, holding:
[I]t is not clear that the allegations are not admissible or may not be relevant to the issue in dispute. Plaintiffs remaining claims are for sex and national origin discrimination. The incidents she alleges underlying her sexual harassment claim may be admissible to demonstrate defendants' discriminatory intent to support her sex discrimination claim.
1997 WL 7670, at *5; see also Kounitz v. Slaatten, 901 F. Supp. 650, 658 (S.D.N.Y. 1995) (denying motion to strike allegation that the defendant had "a deep-seated hatred of heterosexual, fertile, female attorneys" because the allegation may have had some bearing on the motivation for the defendant's alleged discrimination). In light of the fact that discriminatory intent "may be proven through circumstantial evidence . . . such as evidence of past conduct or incidents," Eaton, 1997 WL 7670, at *5 (quoting Krieger v. Gold Bond Bldg. Prods., 863 F.2d 1091, 1096-97 (2d Cir. 1988)), the allegations concerning the purported harassment and hostile work environment in the First Amended Complaint cannot be said to "have no possible bearing" on Crespo's discrimination claims. Accordingly, the NYCTA's motion to strike must be denied.
CONCLUSION
For the foregoing reasons, the NYCTA's motion to dismiss Crespo's Title VII and New York Human Rights Law claims alleging harassment and a hostile work environment, based on both gender and race, is granted. The NYCTA's motion to dismiss Crespo's retaliation claims, to the extent those claims are based on conduct occurring prior to her termination, also is granted. The NYCTA's motion to strike is denied.
For the sake of clarity, the result of the foregoing is as follows: Counts I through IV of the First Amended Complaint survive the NYCTA's motion to dismiss only to the extent they allege gender- and race-baseddiscrimination, not harassment or a hostile work environment. In other words, those claims survive only insofar as they allege that Crespo's employment was terminated, or that Crespo was subject to different standards of conduct or different disciplinary measures, on the basis of her race or gender. Similarly, those portions of Counts I through IV of the First Amended Complaint alleging retaliation survive only to the extent they concern retaliation occurring after Crespo's employment with the NYCTA terminated.
SO ORDERED.