In Dubie v. Buffalo Concrete Accessories, Inc., 21-CV-744-LJV, 2022 WL 17822125 (W.D.N.Y. Dec 20, 2022), the court dismissed plaintiff’s sexual harassment claim as not administratively exhausted at the U.S. Equal Employment Opportunity Commission (EEOC), which is a necessary first step in pursuing a claim under Title VII of the Civil Rights Act of 1964.
From the decision:
“Title VII requires a plaintiff to exhaust administrative remedies before filing suit in federal court.” Fowlkes v. Ironworkers Loc. 40, 790 F.3d 378, 384 (2d Cir. 2015) (citations omitted). Under a narrow exception to the exhaustion requirement, “claims not raised in an EEOC complaint may still be part of the complaint later filed in federal court if they are reasonably related to the claim filed with the agency.” Littlejohn v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (citation and internal quotation marks omitted). A claim is reasonably related “if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.” Id. (citation omitted).
Dubie’s EEOC charge focused solely on discrimination based on race and color, not sex: She checked boxes indicating that she was discriminated against based only on race and color, and she left the box labeled “sex” blank. See Docket Item 3 at 2. Likewise, the allegations in the EEOC charge addressed only race-based comments by Gaglio and others. Id. And while Dubie explicitly charged that she had been “discriminated against because of [her] race…and color,” she made no mention of discrimination based on sex. Id.
Moreover, the sexual harassment claims raised in this Court are not “reasonably related” to the claims raised in Dubie’s EEOC charge. Dubie alleges that Bob Young, a “tenant” of Buffalo Concrete, Docket Item 1 at ¶ 19, told her to “schmooze up to [Gaglio] a little” and “[j]ust kiss up to [Gaglio] a bit,” Docket Item 12 at 16.6 She says that this “advice” about how she might “keep [her] employment” had sexual connotations and that she found it “demean[ing].” Docket Item 1 at ¶ 19; Docket Item 12 at 16. But that allegation of sexual harassment has nothing to do with the race- and color-based discrimination Dubie alleged in her EEOC charge. It therefore does not “fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.” See Littlejohn, 795 F.3d at 322. In fact, Young was not involved in the alleged racial discrimination described in the EEOC charge. Cf. id. at 323 (sexual harassment claim was not “reasonably related” to EEOC racial discrimination claims where alleged perpetrator of sexual harassment was not involved in alleged racial discrimination). So Dubie’s allegations of sexual harassment and racial discrimination seem to be completely unrelated.
In her response to the first motion to dismiss, Dubie argued that she did exhaust her administrative remedies on her sexual harassment claims or, alternatively, that her failure to exhaust should be excused. Docket Item 13. But the Court found that these arguments had no merit, Docket Item 17 at 10-12, and Dubie has not asserted them again—or made any other arguments—in response to Buffalo Concrete’s second motion to dismiss. Nor has she included facts in her amended complaint addressing the exhaustion requirement.
[Cleaned up.]
The court concluded that plaintiff “did not exhaust administrative remedies for her sexual harassment claim and has not plausibly alleged an exception to the exhaustion requirement,” warranting dismissal on that basis.