In Chacko v. Office of the New York State Comptroller et al, No. 20-cv-10697, 2021 WL 5605063 (S.D.N.Y. Nov. 30, 2021), the court granted defendants’ partial motion to dismiss based on plaintiff’s failure to “administratively exhaust” her claims before the U.S. Equal Employment Opportunity Commission (EEOC).
From the decision:
In her EEOC Charge, Plaintiff alleged that she experienced discrimination on the basis of race, sex, religion, and national origin, as well as retaliation for filing an internal complaint about that discriminatory behavior. EEOC Charge at 4. Plaintiff levied her allegations against two co-workers, Kamal Elsayed and Beverly Jones.1 Id. at 4–5. In her federal complaint, however, Plaintiff predicates her Title VII claims on the actions of Elsayed and Jones2 as well as the actions of Teranmattie Mahtoo-Dhanraj and Erica Zawrotniak. Compl. ¶¶ 26–30, 34–49. Defendants argue that, by doing so, Plaintiff is attempting to “expand her hostile work environment claim to include new discriminatory acts beyond those involving Elsayed,” and “that Chacko’s failure to present these claims in her EEOC charge necessarily means that she has failed to exhaust these claims at the EEOC level.” Defs. Reply Mem. of Law, Dkt. 22 at 3. Plaintiff argues that, “insofar as allegations of discrimination as to Mahtoo-Dhanraj and Zawrotniak were included in Plaintiff’s Rebuttal Statement and Defendants’ Verified Position Statement they were properly raised before the EEOC.” Pl. Mem. of Law at 9.
The law is clear that “it is [the] substance of the charge … that controls.” Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y. 1998) (emphasis added); see also Deravin, 335 F.3d at 201 (“[T]he focus should be on the factual allegations made in the EEOC charge itself, describing the discriminatory conduct about which a plaintiff is grieving.”) (cleaned up) (emphasis added); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001) (“EEOC regulations do allow ‘written statements’ of fact to amend a charge, but only insofar as they ‘clarify and 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.’ ”) (quoting 29 C.F.R. § 1601.12(b)). Here, Plaintiff’s EEOC Charge did not mention Mahtoo-Dhanraj or Zawrotniak at all. Further, the incidents involving Mahtoo-Dhanraj and Zawrotniak that were mentioned in Defendants’ Verified Position Statement and Plaintiff’s Rebuttal Statement are distinct and separate from Plaintiff’s allegations against Elsayed and Jones and, thus, do not serve to clarify or amplify, nor grow out of, the latter.3
The court concluded, based on this, that “because Plaintiff’s federal allegations regarding Mahtoo-Dhanraj and Zawrotniak are outside the scope of the EEOC Charge, they can only survive Defendants’ motion to dismiss if they are reasonably related to Plaintiff’s EEOC Charge.”
It proceeded to explain that this conduct was not reasonably related to the allegations in plaintiff’s EEOC charge. Specifically, none of the three exceptions pursuant to which allegations outside the scope of an EEOC charge may be actionable in federal court – “(1) the allegations would fall within the scope of an EEOC investigation that arises from the charge; (2) the claims allege retaliation against a Plaintiff for filing an EEOC charge; and (3) the claims allege discrimination that was “carried out in precisely the same manner as alleged in the EEOC charge” – were met here.