Title VII, ADA, GINA Claims Survive Dismissal on Administrative Exhaustion Grounds

In Wimberly v. automotiveMastermind, Inc., No. 20-2880, 2021 WL 2043623 (SDNY May 21, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s employment discrimination claims asserted under the Americans with Disabilities Act, 42 U.S.C. §§ 12203 & 12112 (ADA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. (GINA).[1]The court, however, dismissed plaintiff’s claim asserting a racially hostile work environment under 42 U.S.C. § 1981.

Specifically, defendant argued that the court should dismiss these claims because they were filed more than 90 days after the EEOC issued the “right-to-sue letter” to plaintiff.

The court summarized the law:

Actions alleging employer violations of Title VII, the ADA, and GINA are subject to the same administrative procedure requirements. See 42 U.S.C. §§ 2000e–5(e)(1); Id. § 12117(a) (adopting the administrative procedures of Title VII to the ADA); Id. § 2000ff–6(a)(1) (adopting the administrative procedures of Title VII to GINA). Pursuant to these requirements, a plaintiff must first file a charge with the EEOC. Then, after the EEOC issues a right-to-sue letter, a claim must be filed in a federal district court within 90 days of the claimant’s receipt of the letter. In determining when the right-to-sue letter was received, courts rely on a presumption that a notice provided by a government agency was received three days after its mailing. [Citations omitted.]

Applying the law, the court explained:

In this case, the plaintiff states that he filed a charge with the EEOC on June 11, 2019 and the EEOC staff told him that they would issue him a right to sue letter, but the complaint is silent on whether the plaintiff received a right-to-sue letter from the EEOC or when he received it. Instead of information in or documents attached to the complaint, the defendant relies on a copy of the notice of right to sue that the defendant included as an exhibit with the motion to dismiss and which states that the notice was mailed on December 19, 2019. Based on that date, together with the three-day delivery presumption, the defendant calculates that the action was commenced 15 days past the 90-day deadline. On this basis, the defendant argues that the claims brought pursuant to Title VII, ADA, and GINA must be dismissed as untimely.

As an initial matter, on a motion to dismiss, with a few exceptions that do not apply here, the Court cannot consider materials outside the plaintiff’s complaint without converting the motion to a motion for summary judgment under Federal Rule of Civil Procedure 56. See Chambers, 282 F.3d at 152–53. Therefore, the Court cannot consider the defendant’s exhibit in ruling on the motion to dismiss.

Furthermore, the Second Circuit Court of Appeals has held that “the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense.” Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 491 (2d Cir. 2018). And because the exhaustion rules under the ADA and GINA incorporate the Title VII rules by reference, the same reasoning applies to those claims. Accordingly, the plaintiff does not need to plead facts in the complaint demonstrating that he followed the requisite administrative procedures. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007) (“The pleading requirements in the Federal Rules of Civil Procedure … do not compel a litigant to anticipate potential affirmative defenses … and to affirmatively plead facts in avoidance of such defenses.”). As the Court of Appeals made clear in the analogous context of an affirmative defense based on the statute of limitations, “dismissal is appropriate only if a complaint clearly shows the claim is out of time.” Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999); see also Hardaway, 879 F.3d at 491 (reasoning that EEOC administrative filing requirements operate like a statute of limitations). Because the complaint in this case does not conclusively establish that the plaintiff failed to follow the administrative procedures, including the 90-day filing rule, the claims cannot be dismissed for failure to comply with the procedures.

Accordingly, the motion to dismiss the Title VII, ADA, and GINA claims is denied.

[Emphasis added.]

Since the court denied defendant’s motion to dismiss plaintiff’s Title VII, ADA, and GINA claims, it continued to have subject matter jurisdiction over the case, and therefore deemed moot defendant’s argument that it should decline to exercise supplemental jurisdiction over the plaintiff’s New York State and City Human Rights Law claims.

Share This: