Title VII “Failure to Promote” Claim Dismissed; Failure to Include in EEOC Charge Fatal

In Franklin v. New York City Transit Authority, 18-cv-6436, 2021 WL 4710762 (S.D.N.Y. Oct. 8, 2021), the court dismissed plaintiff’s failure-to-promote claim under Title VII of the Civil Rights Act of 1964, since that claim was not “administratively exhausted.”

From the decision:

The defendant in this case argues – correctly – that the plaintiff’s claims are barred because the plaintiff’s claims for failure to promote because of gender and retaliation were not included in her allegations filed with the EEOC, and they are not reasonably related to the allegations that were actually included in those charges. In particular, the plaintiff’s first claim for failure to promote was not included in the first EEOC charge because it postdated that filing. It was also not included in the second EEOC charge. First, the “denied me promotion/pay raise” box was not checked. “Although merely checking a box or failing to check a box does not necessarily control the scope of the charge … the absence of a checkmark weighs against concluding that the plaintiff has alleged discrimination on the basis of the claim designated by that box.” Guy v. MTA N.Y.C. Transit, 407 F. Supp. 3d 183, 192 (E.D.N.Y. 2016). Second, and crucially, there were no facts in the plaintiff’s description of her alleged discrimination that would indicate that she had been denied a promotion. Cf. Chidume v. Greenburgh-N. Castle Union Free Sch. Dist., No. 18-cv-01790, 2020 WL 2131771, at *3 (S.D.N.Y. May 4, 2020) (“The more critical analysis is whether there is any explanation or description supporting a particular claim.”). Indeed, there was nothing in the charge to “alert the EEOC to the discrimination that [the] plaintiff claims she [had suffered].” Butts, 990 F.2d at 1402.

Based on this, the court held that “plaintiff therefore failed to meet the precondition of filing her first non-promotion claim with the EEOC prior to bringing her Title VII claim in federal court.”

The court did, however, find that plaintiff’s claims were not barred by the statute of limitations, noting that defendant bore the burden on that issue, and merely “[h]ighlighting that the plaintiff has failed to plead the specific dates on which the alleged adverse employment actions took place – without more – is insufficient to meet this burden.”

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