In Cordaro v. Lloyd J. Austin III, 6:22-CV-06027 EAW, 2024 WL 4248965 (W.D.N.Y. Sept. 20, 2024), the court denied plaintiff’s motion for reconsideration of the court’s dismissal of plaintiff’s disability discrimination claims, on the ground that plaintiff failed to exhaust his administrative remedies.
From the decision:
Plaintiff argues that because more men than women have his particular disability, his assertion of a gender discrimination claim was reasonably related to his disability discrimination claim to put Defendant on notice that he was pursuing such claims. The Court disagrees. It is true that claims “reasonably related” to those filed with the EEO may be pursued in federal court. See Lee v. Saul, No. 19CIV6553(PGG)(SN), 2022 WL 873511, at *5 (S.D.N.Y. Mar. 23, 2022) (“In order for the court to consider a particular claim of alleged discrimination, it must have been either explicitly raised during the EEO process or be ‘reasonably related’ to claims that were.” (quoting Hodges v. Att’y Gen. of U.S., 976 F. Supp. 2d 480, 490 (S.D.N.Y. 2013))), appeal dismissed (Jan. 11, 2023); Henry v. McDonald, 531 F. Supp. 3d 573, 587 (E.D.N.Y. 2021) (“[C]laims in a civil lawsuit must either have been expressly asserted in the employees EEO complaint or else be ‘reasonably related’ to the allegations raised therein.” (quoting Elhanafy v. Shinseki, 2012 WL 2122178, at *12 (E.D.N.Y. June 12, 2012))). But for the Court to find Plaintiff’s disability claims “reasonably related,” the claims would have to “fall within the reasonably expected scope of an [EEO] investigation of the charges of discrimination.” Atencio v. U.S. Postal Serv., No. 1:14-CV-7929-GHW, 2015 WL 7308664, at *6 (S.D.N.Y. Nov. 19, 2015). The Second Circuit explained that “the focus of the inquiry should be on the factual allegations made in the EEO charge itself, describing the discriminatory conduct about which a plaintiff is grieving,” and “[i]t is the substance of the charge and not its label that controls.” Id. (quoting Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008)).
Here, Plaintiff did not check the box for disability discrimination in either his initial (Dkt. 8-2 at 7) or amended (id. at 30-31) EEO charge, nor are there any allegations relating to disability contained therein. Moreover, even when Plaintiff did seek to add disability claims in March 2020 (id. at 34-35), the disability he identified was amblyopia and challenges with depth perception, with no mention of Aspergers, which he now contends is more prevalent in men and is the basis for his argument that the claims were reasonably related to his gender discrimination claims. Because the balance of the factual allegations set forth in Plaintiff’s administrative charges relate to gender discrimination, there is no basis to disturb the Court’s conclusion that the disability claims were unexhausted. See Henry, 531 F. Supp. 3d at 587 (dismissing retaliation claim that was not asserted in EEO complaint filed with Veterans Affairs’ Office of Resolution Management and was “not reasonably related to the discrimination claims in his EEO [c]omplaint”); Malloy v. Pompeo, No. 18 CIV. 4756 (PGG), 2020 WL 5603793, at *12 (S.D.N.Y. Sept. 18, 2020) (disability claim not exhausted where EEO complaint alleged race discrimination but did not mention disability); Elhanafy v. Shinseki, No. 10-CV-3192 JG JMA, 2012 WL 2122178, at *13 (E.D.N.Y. June 12, 2012) (finding certain discrimination claims procedurally barred where “nothing in [plaintiff’s] EEO Complaint even plausibly suggested discrimination on the basis of religion, age, or disability and…‘could not reasonably be expected to have triggered an investigation into the allegations of [religion, age, and disability] discrimination [ ]he now raises.’ ” (quoting Culbertson v. Charosa Found. Corp., No. 03-CV-3742 (SJF)(LB), 2004 WL 2370686, at *3 (E.D.N.Y. Oct. 18, 2004))).
The court further held that plaintiff did not demonstrate that the failure to exhaust the claim was justified on grounds of equitable estoppel, or that “manifest injustice” will result from the denial of his motion for reconsideration.