In Golubovych v. Saks 5th Avenue, Inc., 1:22-cv-9923-MKV, 2024 WL 4135251 (S.D.N.Y. Sept. 10, 2024), the court, inter alia, dismissed plaintiff’s claim asserted under Title VII of the Civil Rights Act of 1964, on the ground that plaintiff failed to exhaust administrative remedies at the U.S. Equal Employment Opportunity Commission.
From the decision:
Saks next argues that Plaintiff’s Title VII Claim must be dismissed for failure to exhaust administrative remedies. Def. Mem. at 16. As a threshold matter, the Court notes that while Plaintiff marked “Title VII” under “Federal Claims” in her Complaint, Plaintiff failed to check any protected class under Title VII that purportedly served as the basis for her employer’s discrimination. Compl. at 20. It appears quite clear to the Court that the crux of Plaintiff’s claims center around age discrimination. However, Title VII does not encompass claims for employment discrimination on the basis of age. See 42 U.S.C. § 2000e–2; see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586–87 (2004) (“Congress chose not to include age within discrimination forbidden by Title VII ….”); Pierre v. Napolitano, 958 F. Supp. 2d 461 (S.D.N.Y. 2013) (“Title VII does not protect against discrimination on the basis of age[.]”).
Within the twenty-seven-page Complaint, Plaintiff fleetingly alleges that in November 2018, eight male Saks employees filed a race and age discrimination lawsuit against Saks, in which a settlement was reached. Compl. at 9. Plaintiff thereafter states that “when, in one case with eight male employees, [Saks] disregards the signed Separation Agreements and reaches the settlement, and, in another identical case with two female employees, tries to dismiss it, [Saks] acts illegally and discriminatory.” Compl. at 9. To the extent that, construing Plaintiff’s Complaint liberally as the Court must, Costabile, 951 F.3d at 80, this sole sex-related allegation suffices to allege a sex discrimination claim under Title VII, the claim is barred for failure to exhaust administrative remedies.
As a precondition to filing a Title VII claim in federal court, a plaintiff must first file a timely charge of discrimination with the EEOC or equivalent state or local agency. See Staten v. Patrolmen’s Benevolent Ass’n of City of New York, Inc., 736 F. App’x 17, 18 (2d Cir. 2018); Holtz v. Rockefeller & Co., 258 F. 3d 62, 82–83 (2d Cir. 2001). In order to satisfy this exhaustion requirement, however, it is not enough for a plaintiff to simply file a charge of discrimination or retaliation with the EEOC. Instead, a plaintiff may “typically may raise in a district court complaint only those claims that either were included in or are reasonably related to the allegations contained in her EEOC charge.” Staten, 736 F. App’x at 18 (emphasis added); see also Littlejohn v. City of New York, 795 F.3d 297, 323 (2d Cir. 2015). Courts consider three categories of claims to be reasonably related: (i) claims based on conduct that “would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made”; (ii) claims alleging retaliation arising from the filing of an EEOC charge; and (iii) claims alleging “further incidents of discrimination carried out in precisely the same manner as alleged in the EEOC charge.” Williams v. New York City Hous. Auth., 458 F.3d 67, 70 and n.1 (2d Cir. 2006). To determine whether claims properly “fall within the scope” of the EEOC investigation, “the focus should be on the factual allegations made in the [EEOC] charge itself,” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal quotation marks and citation omitted), and “whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination on both bases.” Williams, 458 at 70 (internal quotation marks and citation omitted).
Here, to the extent Plaintiff attempts to bring a sex discrimination claim under Title VII in this action, that claim fails because she failed to assert any sex discrimination claim (or sex-discrimination allegations) in her EEOC Charge. See Compl. at 27. Specifically, in the “Discrimination Based On” section of her EEOC Charge, Plaintiff only checked off the boxes for age discrimination and retaliation. See Compl. at 27. Moreover, she failed to assert a single allegation pertaining to her sex or any other category protected under Title VII in the EEOC Charge. See Compl. at 27. All allegations in the EEOC Charge relate exclusively to age. Accordingly, any Title VII sex-based discrimination claim that Plaintiff may attempt to assert in this lawsuit is not “included in or reasonably related to the allegations contained in her EEOC charge,” and therefore Plaintiff has failed to exhaust her administrative remedies with respect to any Title VII claims, to the extent one could be construed to be plead in the Complaint. Staten, 736 F. App’x at 18; see e.g., Acheampong v. N.Y. City Health & Hosps. Corp., No. 11-9205 (LTS), 2015 WL 1333242, *10 (S.D.N.Y. Mar. 25, 2015) (dismissing plaintiff’s race, color, national origin and age discrimination claims for failure to exhaust administrative remedies because they were not reasonably related to the disability claims asserted in his EEOC charge); Pollard v. New York City Health & Hosps. Corp., No. 13-cv-4759 (ER), 2016 WL 5108127, at *5 (S.D.N.Y. Sept. 20, 2016) (dismissing plaintiff’s race, color, and national origin discrimination claims for failure to exhaust administrative remedies because they were not reasonably related to the gender claims asserted in her EEOC charge); Peterson v. Ins. Co. of N. Am., 884 F. Supp. 107, 109 (S.D.N.Y. 1995) (“[C]laims based on a wholly different type of discrimination” are barred from review.).
The court thus concluded that because plaintiff failed to exhaust her administrative remedies with respect to her unspecified Title VII claim, this claim is dismissed.