In Caddick v. Personnel Co. I LLC, 16-cv-7326, 2018 WL 3222520 (S.D.N.Y. June 29, 2018), the court dismissed plaintiff’s Title VII claims of gender and national origin discrimination claims because they were not properly “exhausted” at the Equal Employment Opportunity Commission (EEOC).
The court explained:
In Plaintiff’s Second Amended Complaint, she has asserted that she was discriminated against on the basis of her gender and national origin and subject to a hostile work environment. SAC ¶¶ 137, 140-41. However, Plaintiff did not assert such claims in her EEOC charge. See Freedberg Decl., Ex. A. Rather, her charge is based exclusively upon having been retaliated against for opposing discrimination, a different charge than discrimination itself. Roff, 2004 WL 5544995, at *3. In regards to her retaliation claim, the charge then goes on to describe the two instances of her refusing to stay overnight and attend to Mr. Icahn, which she claims caused Ms. Icahn to speak to her in a demeaning manner with foul language. Freedberg Decl., Ex. A. Then, the charge summarizes the September 14, 2015 incident when Ms. Icahn mistakenly accused Plaintiff of being responsible for her missing jewelry, which she claims resulted in her “being terminated.” Id.
At no point, however, does Plaintiff describe the discriminatory conduct purportedly underlying the retaliation. Rather, the alleged retaliatory acts appear to arise predominantly from Plaintiff’s complaints regarding having to work overtime and the jewelry incident, not from any complaints she made regarding national origin or gender discrimination. However, even had plaintiff properly alleged retaliation for complaining of discrimination, she would also be required to separately exhaust a claim for the underlying discrimination (which she has not done). Roff, 2004 WL 5544995, at *3.
As such, even drawing all reasonable inferences in favor of Plaintiff as required at this stage, Defendants have amply demonstrated Plaintiff’s failure to exhaust her administrative remedies before the EEOC.