In Kennedy v. Bernhardt, 2020 WL 7399050 (W.D.N.Y. Dec. 16, 2020), the court, inter alia, declined to apply the “continuing violation doctrine,” and dismissed one of her claims on failure to exhaust and timeliness grounds.
After summarizing the law, the court applied it to the facts:
Here, the factual allegations in the Complaint do not support application of the continuing violation doctrine to include pre-April 2017 incidents in support of Kennedy’s disparate treatment claim. Kennedy chiefly complains she was “subjected to different terms and conditions of employment due to her sex” as a result of the sexual harassment and discrimination by Grube in the workplace, and Defendant’s failure to address this conduct or provide requested accommodations for Kennedy. See Dkt. 1, at 8-10 ¶¶ 44-59. Pursuant to Morgan, these alleged discriminatory acts are time-barred insofar as they constitute a series of discrete incidents—even if they are “related to acts alleged in timely filed charges,” they are “discrete acts of discrimination” that occurred outside the statutory time period. Bowen-Hooks, 13 F. Supp. 3d at 205 (citing Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247, 2013 WL 1232355, at *5 (E.D.N.Y. Mar. 26, 2013)); Morgan, 536 U.S. at 113. Without further detail as to the timing of these events, or an identifiable discriminatory policy or mechanism,6 claims of “ongoing and systematic” discrimination do not satisfy the continuing violation exception. Lynch v. Potter, No. 1:06-CV-71, 2006 WL 3813593, at *6 (D. Vt. Dec. 27, 2006) (declining to apply the continuing violation exception where plaintiff claimed female workers were treated favorably in several respects in a “series of discrete, yet arguably related, incidents”); see also Sloth v. Constellation Brands, Inc., 883 F. Supp. 2d 359, 370 (W.D.N.Y. 2012) (observing, on a motion to dismiss, that the caselaw “requires that a ‘specific discriminatory policy’ be shown which amounts to more than a string of allegedly discriminatory acts committed with one motive in mind.”).
Alternatively, to the extent Kennedy alleges a claim “composed of a series of separate acts that collectively constitute one ‘unlawful employment practice,’ ” this supports a hostile work environment claim. Taylor, 207 F. Supp. 3d at 309 (quoting Harris v. S. Huntington Sch. Dist., No. 06-CV-3879 (DGT), 2009 WL 875538, at *10 (E.D.N.Y. Mar. 30, 2009)); Morgan, 536 U.S. at 117. But Kennedy cannot assert a continuing violation based on a hostile workplace under her first cause of action that is separate and distinct from the hostile work environment claim that she has already asserted in her second cause of action.7 Kennedy has not alleged any continuing violation—that is, “specific and related instances of discrimination … permitted … to continue unremedied for so long that its inaction may reasonably be viewed as tantamount to a policy or practice of tolerating such discrimination”—that is sufficiently distinct from her separate hostile work environment claim and that makes the pre-April 2017 incidents timely as to the disparate treatment claim.8 Harris, 2009 WL 875538, at *10 (quoting Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001) in a discussion of the continuing violation theory and a hostile work environment claim); see E.E.O.C. v. Bloomberg L.P., 967 F. Supp. 2d 816, 866 (S.D.N.Y. 2013) (citing Morgan, 536 U.S. at 113) (“Indeed, simply alleging that prior acts are related to acts alleged in timely filed charges is insufficient to invoke the doctrine.”).
Based on its de novo review, this Court concludes that Kennedy may not rely on the continuing violation theory to satisfy her exhaustion requirement for the pre-April 2017 conduct of Grube and the agency’s failure to respond to such conduct. Insofar as Kennedy alleges she was treated differently than her male co-worker after complaining about Mr. Grube’s harassment, or otherwise suffered allegedly discriminatory actions based on her sex, she is limited to those discrete acts occurring on or after April 1, 2017.
[Internal citations omitted.]
Based on this, the court concluded that “since Kennedy failed to timely exhaust her administrative remedies and the continuing violation theory does not apply, Kennedy’s disparate treatment claims under Title VII are time-barred to the extent they depend on acts before April 1, 2017” and granted defendant’s partial motion to dismiss on failure to exhaust and timeliness grounds as to plaintiff’s first cause of action.