In Mercer v. ViacomCBS/Paramount, 22 Civ. 6322 (LGS), 2024 WL 3553133 (S.D.N.Y. July 26, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claims of retaliation under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964, on the ground that she failed to exhaust her administrative remedies as to those claims.
The court explained:
Plaintiff has administratively exhausted her ADA claim for disability discrimination, but has not exhausted her claim for retaliation. Under the ADA, in order to pursue a claim in federal court, plaintiffs “must exhaust administrative remedies through the EEOC.” Soules v. Conn., Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018); accord Rosado v. Port Auth. of N.Y. & N.J., No. 22-587, 2024 WL 658776, at *2 (2d Cir. Feb. 16, 2024) (summary order) (“[P]laintiffs asserting claims under the ADA must first file a charge of discrimination with the EEOC.”). Administrative exhaustion in both “the Title VII and ADA context is not a jurisdictional prerequisite, but only a precondition to bringing suit that can be waived by the parties or the court.” Anderson v. City of New York, No. 22 Civ. 3990, 2024 WL 183103, at *6 n.6 (S.D.N.Y. Jan. 17, 2024). “However, the Court should grant a motion to dismiss if [non]exhaustion is clear from the face of the complaint (and incorporated documents).” Id.
“[C]laims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency.” Soules, 882 F.3d at 57. A claim “is reasonably related to conduct in an EEOC charge if … the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination.” Id.
Defendant argues that Plaintiff’s ADA claims were not included in her EEOC charge and are not reasonably related to the charge as the charge includes only a claim of genetic information discrimination and not claims of disability discrimination. Although Plaintiff focuses on genetic information as the source of the discrimination and states that she does not have a disability in her EEOC inquiry, it is reasonable to infer that a denied medical accommodation, which was the primary claim made, would implicate the ADA and that the EEOC would investigate possible disability discrimination on that basis. Defendant’s arguments to the contrary based on Shi v. Batgatelle International, Inc., No. 20 Civ. 8473, 2023 WL 4187557, at *7 (S.D.N.Y. June 26, 2023), are unpersuasive. In that case, the plaintiff’s primary complaints in the charge were race- and national origin-based discrimination, and she did not check the box for a disability claim. Id. Here, both Plaintiff’s EEOC inquiry and charge primarily reference a denied medical accommodation request. Plaintiff’s ADA claims based on disability discrimination are reasonably related to the claims Plaintiff exhausted through the EEOC.
Plaintiff has not exhausted her retaliation claims, either under the ADA or Title VII, as those claims are not reasonably related to the conduct in the charge. The charge does not reference any retaliation for seeking a vaccine exemption. The charge states that Plaintiff was “unfairly released from the company,” but does not suggest Plaintiff believed that this termination was the result of her seeking accommodations or the result of any activity protected by the ADA or Title VII. Rather, the charge suggests that Plaintiff’s claim is that she was wrongly denied a medical exemption, that she refused the vaccine despite her lack of exemption and that, as a result, she was terminated for failing to comply with company policy. Plaintiff also did not select the box for retaliation on the charge. The EEOC could not reasonably infer that Plaintiff sought to bring a claim that her termination was in retaliation for her seeking an accommodation. Plaintiff therefore has not administratively exhausted her ADA or Title VII claims of retaliation for seeking an exemption to the vaccine mandate.
This decision, as such, is instructive as to the pre-suit requirements imposed by federal antidiscrimination law.
It should also be noted that while the court held that plaintiff exhausted her remedies as to her disability discrimination claim under the ADA, it held that plaintiff did not state a sufficient ADA claim because plaintiff’s complaint did not allege that plaintiff had a “disability” within the meaning of the ADA.