Opinion
03-CV-6547.
July 2, 2004
Mary L. Budde, pro se, Cadiz R.D. Franklinville, New York, for plaintiff.
R. Scott DeLuca, Esq., Damon Morey LLP, Buffalo, New York, for defendants.
DECISION AND ORDER
INTRODUCTION
This employment discrimination case is before the Court on the defendant's motion to dismiss [#4], pursuant to Federal Rule of Civil Procedure 12(b)(6), filed on March 18, 2003. For the reasons stated below, the application is granted.
BACKGROUND
Defendant United Refining Company of Pennsylvania hired plaintiff Mary L. Budde on February 4, 2002, as a gas attendant at one of its Kwik Fill gas stations. On July 9, 2003, plaintiff was accused of stealing money and cigarettes from the station. Compl. [#1] at 4. She was placed on probation on July 11, 2003, and was allowed on the Kwik Fill property only during her work hours. Id. Plaintiff was asked to sign "high shortage papers" but refused. Pl.'s submission dated June 2, 2004, at 3. On July 29, 2003, defendant terminated plaintiff's employment.
Though the record does not indicate what "high shortage papers" are, the Court presumes they constitute an acknowledgment on the employee's part that, during her shift, there has been a significant discrepancy between actual and expected inventory.
Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on October 6, 2003, citing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq ("Title VII"). Plaintiff checked only the box marked "other" when indicating the circumstances of the alleged discrimination. She did not allege discrimination based on race, color, sex, religion, national origin, age, disability or retaliation. Aff. of R. Scott DeLuca, Esq. in Supp. of Def.'s Mot. to Dismiss [#5], Ex. B. In explaining these "other" circumstances, she alleged:
I began working for the above named Respondent at the Kwik Fill gas station as a gas attendant.
On numerous occasions during the course of my employment, I was subjected to unfair treatment. I was accused of cash shortages and my employer favored other employees over me.
I believe the Respondent discriminated against me because they do not like me.Id. The EEOC dismissed plaintiff's charge for failure "to state a claim under any of the statutes enforced by the EEOC." EEOC Dismissal and Notice of Rights, Attach. to Pl.'s Compl. [#1].
Plaintiff filed the instant complaint on November 3, 2003, alleging violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq ("ADA"). She did not, however, fill in the section of the form complaint specifically relating to claims under ADA, nor did she give any indication of what disability she might have.
ANALYSIS
The defendant's first grounds for dismissal is plaintiff's failure to exhaust her administrative remedies. Exhaustion through the EEOC is a precondition to bringing suit in federal court for employment discrimination. See 42 U.S.C. § 2000e-5(e) and (f); 42 U.S.C. § 12117(a). Claims not asserted before the EEOC may be pursued in federal court only "if they are `reasonably related' to those that were filed with the agency." Shah v. New York State Dep't of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999).
Plaintiff was well-apprised of the administrative exhaustion requirement. Previously, in Mary L. Budde v. H K Distributing Co., No. 98-CV-6334 (W.D.N.Y. Sept. 7, 1999), this Court dismissed a discrimination claim by plaintiff for failure to exhaust. In that case, plaintiff made two employment claims: one for a hostile working environment and one for gender discrimination. Id. at 4. In her complaint before the EEOC, however, plaintiff had alleged only gender discrimination. Id. at 5-6. The hostile work environment claim, therefore, was properly subject to dismissal because it was neither included in the EEOC complaint nor reasonably related to the claim that was. Id. at 6. On appeal, the Second Circuit affirmed this holding. Budde v. H K Distrib. Co., 2000 U.S. App. LEXIS 15811, No. 99-9449, 2000 WL 900204, *2 (2d Cir. June 29, 2000).
Notwithstanding her previous experience, plaintiff has again asserted in federal court a cause of action not included in her EEOC complaint. Indeed, in the instant case she has not merely supplemented but replaced the cause of action asserted before the EEOC. Whereas her administrative complaint alleged discrimination under Title VII, her federal complaint falls under the ADA. To allow plaintiff to proceed with a claim she has not presented to the EEOC would frustrate the purpose of the exhaustion requirement, which is "to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. U.S. Immigration Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985). See also Miller v. Intern'l Tel. and Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985) (finding that "[t]he purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC"). The EEOC had no notice of any claim based upon disability, and so had no opportunity to remedy the situation. Consequently, plaintiff's complaint under the ADA is subject to dismissal for failure to exhaust her administrative remedies.
Even if the right-to-sue letter plaintiff obtained from the EEOC for her Title VII claim satisfied the exhaustion requirement as to the ADA, defendant would still be entitled to dismissal for failure to state a claim. To state a claim of employment discrimination, plaintiff need not establish all the elements of a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Nevertheless, plaintiff must still give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff has failed to meet this minimal burden.
The Memorandum of Law in Support of Defendant United Refining Company of Pennsylvania's Motion to Dismiss Plaintiff's Complaint [#6] cites several cases, including this court's decision in Demars v. O'Flynn, 287 F.Supp. 2d 230 (W.D.N.Y. 2003), for the proposition that a claim for discrimination must establish a prim a facie case. Defendant, however, has confused the standard for defeating a summary judgment motion, as in Demars, with the standard for stating a claim sufficient to withstand a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.
If she is indeed making an employment discrimination claim under the ADA, plaintiff gives no inkling of what her disability might be. On the form discrimination complaint, plaintiff did not check "Disability" as a basis of defendant's discrimination. She also chose simply to ignore the four questions relating specifically to the ADA. It would be impossible to say that plaintiff has given defendant sufficient notice of the grounds of any claim of employment discrimination under the ADA.
Because plaintiff is proceeding pro se, the court must read her papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d. Cir 1994). Since the plaintiff mentions neither the ADA nor any disability anywhere other than on the first page of the form complaint, it might be possible to suppose that she mistakenly checked the ADA line on the complaint and in fact intended to proceed under Title VII in federal court as she had in her EEOC complaint.
Even supposing this to be a permissible error, however, the complaint still fails to state a claim upon which relief may be granted. Indeed, this is why her EEOC complaint was dismissed, and she has done nothing to rectify the deficiency in her federal claim. Plaintiff nowhere in her papers indicates that she is a member of a protected class. Rather than check any of the protected classes listed in question 14 of the form complaint, plaintiff states that her description of the facts of her case "relate[s] to question 14." Compl. [#1] at 4. That description reads: "On July 9th 2003, I was be [sic] accused of stealing money and cigarettes. On July 11th, 2003, I was placed on probation. On July 11th, 2003 I was bared [sic] against the place. I was to come in my [sic] on shift only. That is how I was discriminated." Id. There is simply no allegation here that implicates any of the categories protected under Title VII. Plaintiff's conclusory statement that she was discriminated against is insufficient to defeat defendant's motion to dismiss.
While plaintiff may genuinely believe that defendant mistreated her, she nonetheless needs to understand that under law this does not entitle her to pursue an action in federal court.
CONCLUSION
Accordingly, the Court grants the defendant's 12(b)(6) motion [#4]. The complaint is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Decision and Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.