Opinion
03-CV-6476L.
February 15, 2005
DECISION AND ORDER
INTRODUCTION
Plaintiff, Nancy McCahill ("plaintiff"), commenced this action pro se against her former employer, defendant Schottenstein Corp. d/b/a Value City Furniture ("Value City"), alleging discrimination, harassment, and retaliation, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA").
Value City has moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6) on the basis that plaintiff failed to exhaust her administrative remedies. As set forth below, Value City's motion is granted, and the complaint is dismissed.
DISCUSSION
In assessing a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the Court must accept as true the allegations contained in plaintiff's complaint, drawing all reasonable inferences in favor of her. "[T]he complaint may not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Doe v. City of New York, 15 F.3d 264, 266 (2d Cir. 1994) (internal quotations and citations omitted).
A plaintiff may bring an employment discrimination action in federal court under the ADEA, Title VII, and/or the ADA only after filing a timely administrative charge of discrimination with the EEOC or state or local administrative agency. See 29 U.S.C. §§ 626(d), 633(b) (ADEA); 42 U.S.C. § 2000e-5(e) (Title VII); 42 U.S.C. § 12117(a) (ADA); Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001); Holtz v. Rockefeller Co., 258 F.3d 62, 82-83 (2d Cir. 2001). The purpose of the exhaustion requirement is to give the administrative agency "the opportunity to investigate, mediate, and take remedial action. . . ." Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985).
In New York, an administrative charge under the discrimination statutes is timely only if it is filed within three hundred days of the alleged discriminatory conduct. The filing provision acts as a statute of limitations and bars claims based on acts that occurred more than three hundred days before the charge is filed. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) ("A party, therefore, must file a charge within . . . 300 days of the date of the act or lose the ability to recover for it.").
It is undisputed that the last possible date that plaintiff's discrimination claims accrued was September 27, 2002, the date that Value City terminated her for alleged misconduct. Therefore, in order to be timely, plaintiff needed to file a charge of discrimination on or before July 24, 2003. However, plaintiff did not file her charge of discrimination with the EEOC until July 30, 2003. ( See Dkt. #12, Ex. A). On August 6, 2003, the EEOC dismissed plaintiff's charge as untimely, as she had missed the filing deadline by six days. ( See Notice of Right to Sue, attached to Dkt. #1).
On a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are incorporated into the complaint by reference, attached to it as exhibits, or whose terms and effect are relied upon by the plaintiff in drafting. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-54 (2d Cir. 2002).
Likewise, this Court must dismiss plaintiff's complaint because she did not file a timely charge of discrimination with the EEOC before bringing this action. The Supreme Court has unequivocally held that filing an administrative charge within the three hundred day time period is "mandatory." Morgan, 536 U.S. at 110; see also Legnani, 274 F.3d at 686 ("Exhaustion of administrative remedies through the EEOC is `an essential element' of the Title VII . . . statutory scheme and, as such, a precondition to bringing such claims in federal court."). Therefore, although the Court may be sympathetic to the fact that plaintiff missed the filing deadline by only six days, it cannot ignore the statutory deadline imposed by Congress. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants").
Moreover, the charge plaintiff filed asserted claims based on age discrimination and retaliation. However, plaintiff's pro se complaint filed in federal court alleges discrimination based on disability, religion, gender, and sexual harassment, as well as age discrimination and retaliation. (Dkt. #1, ¶ 14). Plaintiff made no mention of disability, religion, gender, or sexual harassment as a basis of discrimination in her administrative charge. Nor can it be said that any of these claims are reasonably related to the claims that were raised in the charge. Therefore, plaintiff's discrimination claims based on sexual harassment, disability, religion, and gender are dismissed for the additional reason that plaintiff failed to file any charge of discrimination with the EEOC. See Holtz, 258 F.3d at 84 (dismissing religious discrimination claim for failing to exhaust administrative remedies); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999) (dismissing ADA claim); Jackson v. Nor Loch Manor Healthcare Facility, 297 F.Supp.2d 633, 635 (W.D.N.Y. 2004) (dismissing Title VII claim).
Finally, although administrative exhaustion is subject to equitable tolling, estoppel, and waiver, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), plaintiff has failed to request or articulate any factual basis for equitable relief. In fact, after granting repeated motions for extensions of time to respond to defendant's motion or to obtain legal counsel ( see Dkts. ##19, 20, 21, and 22), plaintiff never addressed the merits of defendant's motion or the issue of exhaustion of administrative remedies.
CONCLUSION
Value City's motion to dismiss (Dkt. #11) is granted and plaintiff's complaint is dismissed in its entirety with prejudice.
IT IS SO ORDERED.