Posted: August 15, 2018

Judge Cogan Denies Motion To Dismiss Discrimination Action, Finding That Plaintiffs’ EEOC Complaint Satisfied Exhaustion Requirements Even Where Lawsuit Expanded On Allegations

Posted by Solomon N. Klein, Litigation Partner

District Judge Brian M. Cogan denied a motion to dismiss where defendant argued that plaintiff failed to exhaust his administrative remedies before filing his lawsuit. Anderson v. Alclear, LLC, 18-cv-1525 (E.D.N.Y. Aug. 10, 2018) (BMC) (RML). (Interestingly, the Court ruled directly on defendant’s pre-motion conference letter, deeming the pre-motion conference letter to constitute the motion to dismiss.)

Defendant argued that plaintiff’s EEOC complaint – an administrative process that plaintiff was required to exhaust prior to bringing the action – omitted a number of the alleged discriminatory acts that were subsequently alleged in the federal lawsuit at issue. The Court denied the motion, noting the “loose pleading” requirements for EEOC complaints “based on the recognition that ‘EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).’”

This is not a case in which a claimant administratively raised one basis for illegal discrimination and then sought to sue on another, e.g., race discrimination versus sex discrimination. Instead, plaintiff has pleaded three new facts demonstrating his claim of discrimination on the basis of national origin. Each one is reasonably related to the facts included in plaintiff’s EEOC charge.

First, defendant claims that the EEOC did not have adequate notice of a statement allegedly made by one of plaintiff’s supervisors that “Jamaicans are taking over.” The Court fails to see why. Plaintiff indicated in the EEOC charge that he was discriminated on the basis of his national origin, that he was Jamaican, and that he was verbally harassed “more than any other worker” during his time of employment. Plaintiff’s use of the word “worker” in this instance indicates that the individuals whom plaintiff believes verbally harassed him (and his coworkers) were his superiors. This Court is confident that the EEOC can put two and two together and would think to investigate whether members of management made inflammatory statements directed at plaintiff about his Jamaican national origin based on the details provided in plaintiff’s charge.

Second, defendant claims that the EEOC did not have adequate notice of plaintiff’s claim that defendant provided health insurance benefits to every other employee except him. Defendant’s argument for dismissal is strongest with respect to this fact, because the narrative portion of plaintiff’s charge does not state that defendant denied him health insurance. However, under the section of plaintiff’s charge entitled “Acts of alleged discrimination,” plaintiff checked a box indicating that the company denied him services. Given the “loose pleading” standard permitted in this analysis, the Court will equate “services” with “benefits” here. There is presumably a discrete number of benefits that defendant offers to all of its employees. Health insurance is one example, and this box should have signaled to the agency that plaintiff may have been denied certain benefits. All the agency had to do was look at the defendant’s limited universe of benefits and confirm whether plaintiff received them. In addition, plaintiff’s charge even describes a medical condition, which suggests that there may have been issues with his health. Here, plaintiff sufficiently directed the agency to the facts that he had medical issues and was denied services; as a result, an alleged denial of health care benefits can reasonably be expected to fall within the scope of the agency’s investigation into his claims.

Finally, defendant claims there was inadequate notice of plaintiff’s allegation that defendant did not discipline plaintiff’s Indian coworker for a policy violation. This is wrong. Plaintiff states in his charge that he was unfairly written up more than any other employee and that he knows that other employees were not disciplined for certain actions. The EEOC does not need to be told the nationality of other employees to successfully investigate whether plaintiff was subject to disparate treatment on the basis of his Jamaican heritage. The point of the administrative charge is to allow the agency to conduct a meaningful investigation; it is not for the plaintiff to conduct this investigation himself

Anderson v. Alclear, LLC, 18-cv-1525 (E.D.N.Y. Aug. 10, 2018) (BMC) (RML).

Posted by Solomon N. Klein, Litigation Partner

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