Case 1:03-cv-06087-NGG-KAM Document 9 Filed 03/19/2004 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION,

:

:

Plaintiff,

:

:

:

:

:

-against-

:

:

MAGGIE’S PARA TRANSIT CORP.

:

:

:

Defendant.

:

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Civil Action No. 03 6087 Judge Garaufis Magistrate Judge Gold
AMENDED COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. (“Title VII”), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to correct unlawful

employment practices on the basis of sex and retaliation and to provide appropriate relief to Mia Maddox

(“Maddox”), Wendy Mercado (“Mercado”), former employees of Maggie’s Para Transit Corp.

(“Maggie’s” or “Defendant”) and a class of similarly situated women who were adversely affected by

such practices. Plaintiff, the U.S. Equal Employment Opportunity Commission (the “Commission”),

contends that Defendant discriminated against Maddox, Mercado, and a class of similarly situated

women because of their sex by subjecting them to a pattern or practice of sexual harassment in violation

of Title VII. Furthermore, the Commission contends that Defendant retaliated against Maddox and

Mercado for asserting their rights in violation of Title VII.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and

1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) and Section 707(e) of

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Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and §2000e6(e), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Eastern District of New York.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) and Section 707(e) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3) and § 2000e-6(e). 4. At all relevant times, Defendant has continuously been a New York corporation doing business in the State of New York and the County of Kings and has continuously had at least fifteen (15) employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Mia Maddox and Wendy Mercado filed charges with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least 2001, Defendant has engaged in unlawful employment practices in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). These practices include, but are not limited to, engaging in intentional discrimination against Maddox, Mercado, and a class of similarly situated women by subjecting them to physical and verbal sexual harassment. Defendant subjected Maddox, Mercado, and a class of similarly situated women to physical sexual harassment, including but
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not limited to, rape, unwanted kissing, and unwanted touching of their buttocks. Defendant subjected Maddox, Mercado, and a class of similarly situated women to verbal sexual harassment, including but not limited to, repeated inappropriate comments about their breasts and buttocks, sexually explicit discussions, and propositions for sex by male supervisors.
8. Defendant has engaged in unlawful employment practices in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) by retaliating against Maddox and Mercado for engaging in protected activity, including but not limited to, opposing the harassment described in paragraph seven (7) above. The retaliation endured by Maddox and Mercado includes, but is not limited to, Defendant terminating Maddox and unfairly disciplining Mercado.
9. All of the practices described in paragraphs seven (7) and eight (8) above are in continuing violation of Sections 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a) and 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
10. From at least 2001, Defendant has engaged in a pattern or practice of failing to correct the sexual harassment referenced in paragraphs seven (7) and nine (9) above.
11. The effect of the practices complained of in paragraphs seven (7), eight (8), nine (9), and ten (10) above has been to deprive Maddox, Mercado, and a class of similarly situated women of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
12. The unlawful employment practices complained of in paragraphs seven (7), eight (8), nine (9), and ten (10) above were and are intentional.
13. The unlawful employment practices complained of in paragraphs seven (7), eight (8), nine (9), and ten (10) above were and are done with malice or with reckless indifference to the federally protected rights of Maddox, Mercado, and a class of similarly situated women.
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PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex; B. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from retaliating against any employee for participating in protected activity; C. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices; D. Order Defendant to make whole Maddox and Mercado by providing appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices; E. Order Defendant to make whole Maddox and Mercado by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, including, but not limited to, job search expenses; F. Order Defendant to make whole Maddox, Mercado, and a class of similarly situated women by providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation; G. Order Defendant to pay Maddox, Mercado, and a class of similarly situated women punitive damages for its malicious and/or reckless conduct described, in amounts to be determined at trial; H. Order Defendant and its successors to provide training to its officers, managers and
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employees regarding sexual harassment and retaliation in the workplace;

I.

Grant such further relief as the Court deems necessary and proper in the public interest;

and

J. Award the Commission its costs in this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its Complaint.

Respectfully submitted,

Eric S. Dreiband General Counsel
James L. Lee Deputy General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Katherine E. Bissell (KB 1831) Regional Attorney

Elizabeth Grossman (EG 2478) Supervisory Trial Attorney

Lauren G. Dreilinger (LD 6005) Trial Attorney
New York District Office 33 Whitehall Street, 5th Floor New York, New York 10004 (212) 363-3678

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 Case 1:03-cv-06087-NGG-KAM Document 28 Filed 11/30/2004 Page 1 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

FILED

* *' us. ;~'J

CLERWS OFFI"'!: . - ~'" '~T. E;OM.Y.

NOV 3 0 2004

BHCOKLYN OFFICE

Plaintiff, v.

MEMORANDUM AND ORDER 03-CV-6087 (NGG)(KAM)

MAGGIES PARATRANSIT CORP.,

Defendant.

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GARAUFIS, United States District Judge.

This action was brought by the Equal Employment Opportunity Commission ("EEOC")

alleging that defendant Maggies Paratransit Corp. ("Maggies") engaged in discrimination on the

basis of sex and retaliation in violation of Section 706(f)(1), (3) and Section 707(3) of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e 5(f)(I), (3) and § 2000e-6(e)

("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The original

complaint was filed on December 3, 2003. The EEOC filed an amended complaint on March 19,

2004.

On June 4,2004, Maggies brought this motion, pursuant to Fed. R. Civ. Proc. 12(b)(I)

and (6), to dismiss all pattern or practice claims and to dismiss the claim for retaliation against

Mia Maddox.

For the following reasons, the motion is denied in part and granted in part.

I. LEGAL STANDARD

In reviewing a motion to dismiss for failure to state a claim brought pursuant to Fed R.

Civ. P. 12(b)(6), the court must accept all factual allegations in the complaint as true and draw

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all reasonable inferences from those allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 5\0 U.S. 266, 268 (1994); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). In deciding such a motion, the court may take into account documents referenced in the complaint, as well as documents that are in the plaintiffs possession or that the plaintiff knew of and relied on in filing the suit. See Brass v. Am. Film Technologies. Inc., 987 F.2d 142, ISO (2d Cir. 1993). The complaint may be dismissed only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hoover v. Ronwin, 466 U.S. 558,587 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957». In deciding such a motion, the "issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations omitted). This standard is applied with "particular force" when the plaintiff alleges civil rights violations. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Similar to a motion for failure to state a claim, when a court reviews a motion for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1), it accepts as true all material factual allegations in the complaint. Atlantic Mut. Ins. Co. v. Balfour Maclaine Intern. Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (internal citations omitted). However, unlike a motion for failure to state a claim, the court must refrain from drawing "argumentative inferences" in favor of the party asserting jurisdiction. See id. (internal citations omitted). II. BACKGROUND
The EEOC's lawsuit stems from charges filed by two former employees of Maggies, Mia Maddox ("Maddox") on June 1,2002 and Wendy Mercado ("Mercado") on March 13, 2003,
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alleging violations of Title VII by Maggies.! (PI. Am. Compl. at ~ 6). Maddox alleged that she was subjected to sexual harassment by supervisors and managers Kenny Genao ("Genao"), Ray Perez ("Perez") and Angle (last name unknown; "Angle"). (See Charge of Discrimination dated June I, 2002, attached as Ex. I to May 21, 2004 Affidavit of Lauren Dreilinger ("Dreilinger Aff.")). Similarly, Mercado alleged that her supervisors Louis Plumitallo ("Plumitallo") and Genao sexually harassed her. (See Complaint dated March 3, 2003, attached as Ex. 2 to Dreilinger Aff.).
On September 10, 2003 the EEOC sent Maggies a Determination letter regarding the two charges, which indicated that based on its investigation there was reasonable cause to believe that Mercado and Maddox had been sexually discriminated against. (See Determination dated September 10, 2003, attached as Ex. 5 to Dreilinger Af(). The Determination also indicated that there was reasonable cause to believe that a class of similarly-situated employees were subjected to a sexually hostile work environment. (Id.). The EEOC, following its Procedural Regulations, then invited Maggies to address the issues through proposed "conciliation terms." (Id.).
Maggies accepted a number of the EEOC's proposed conciliation terms, but ultimately the two sides could not reach an agreement. (See September 18, 2003 Letter from Maggies, attached as Ex. 8 to Dreilinger Aff.; September 24, 2003 Email from Maggies, attached as Ex. 9 to Dreilinger Aff.). As a result, the EEOC informed Maggies on October I, 2003 that no further conciliation efforts would take place. (See EEOC Letter, attached as Ex. 10 to Dreilinger Aff.).
! Mercado's charge was originally made to the New York State Division of Human Rights, but under a Worksharing Agreement with the EEOC it was jointly investigated by the two agencies. The EEOC initially interviewed Mercado on May 13, 2003. (See EEOC Memorandum of Law at 2 n. 2).
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Shortly thereafter, the EEOC filed its complaint initiating the present litigation. In its complaint, the EEOC alleges that Maggies engaged in unlawful employment
practices, including intentional discrimination against Maddox and Mercado "and a class of similarly situated women by subjecting them to physical and verbal sexual harassment." (PI. Am. Compl. at '\17). The EEOC also alleges that Maggies retaliated against Maddox and Mercado for engaging in the protected activity of opposing the harassment to which they were allegedly subjected by terminating Maddox and unfairly disciplining Mercado. (Id. at '\18). Further, the EEOC alleges that Maggies engaged in a "pattern or practice" of failing to correct this sexual harassment. (Id. at '\110). Further, it is contended that the net effect ofMaggies' actions has been to "deprive Maddox, Mercado, and a class of similarly situated women of equal employment opportunities and otherwise adversely affect their status as employees because of their sex." (Id. at '\111). Finally, the EEOC alleges that Maggies' conduct was both intentional and was done with "malice or reckless indifference" to the federally protected rights of Maddox, Mercado and a class of similarly situated women. (Id. at '\1'\112-13). III. DISCUSSION
In its motion to dismiss, Maggies raises three contentions: (1) the pattern or practice claims by the EEOC are not reasonably related to the individual charges brought by Maddox and Mercado; (2) the EEOC failed to file a Commissioner's charge, which it argues was a prerequisite to filing the suit given Maggies' first contention, above; and (3) Maddox's EEOC charge did not include an allegation of retaliation so this court lacks jurisdiction over such a claim. These claims are considered in turn.
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A. Pattern or Practice Claims Not Reasonably Related Maggies contends that the court lacks jurisdiction to hear the EEOC's pattern or practice claims because they were not reasonably related to the charges filed by Maddox and Mercado. It argues that the EEOC's claims of a pattern or practice of harassment cannot be reasonably related to Maddox and Mercado's charges because it characterizes them as only involving claims of individual sexual harassment. Generally, a plaintiff filing a Title VII claim in federal court must have first filed a complaint with the EEOC and exhausted her administrative remedies. The purpose of this administrative exhaustion requirement is to ensure that employers are given notice ofthe actual substance of the claims they may face in court and an opportunity to settle those issues without the need for litigation. See Mitchell v. Fab Indus. Inc., No. 96 Civ. 0095, 1996 WL 417522, at *2 (S.D.N.Y. July 25, 1996). However, an exception to this requirement exists if the claim asserted is "reasonably related" to the conduct alleged in the EEOC charge, but was not actually made in the charge. Butts v. City of New York DeD't ofHous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citations omitted), superseded by statute on other grounds as recognized in Hawkins v. 1115 Legal Servo Care, 163 F.3d 684 (2d Cir. 1998). The Court of Appeals for the Second Circuit has defined three types of claims that may be "reasonably related" to the conduct alleged in an EEOC charge. Id. at 1401-03. Included among these is a claim in which "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." Fitzgerald V. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001), cert. denied, 536 U.S. 922 (2002) (internal quotation marks and citations omitted). "This exception to the exhaustion requirement 'is essentially an allowance of
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loose pleading' and is based on the recognition that 'EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering.'" Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Butts, 990 F.2d at 1402).
With these standards and concerns in mind, it is clear that the EEOC's pattern or practice claim is one that involves conduct which falls within the reasonable scope of its investigation of Maggies as precipitated by Maddox and Mercado's charges. See. e.g., Sidor v. Reno, No. 95 Civ. 9588, 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997) (holding plaintiffs allegation of discrimination against other employees during course of investigation, but not contained in initial charge, sufficient to support a pattern or practice claim).
Although the charges filed with the EEOC by Maddox and Mercado do not allege a pattern or practice of sexual harassment, the EEOC's subsequent administrative investigation raised these issues. In an interview following her charge, Mercado detailed conduct by Maggies' employees that was broader than individual harassment she alone had suffered. For instance, in describing Genao, she indicated that he "does sexual jokes with everyone, he made comments about every girl." (August 19 Notes of Mercado Interview, attached as Ex. 4 to Dreilinger Aff.). Mercado also described the conduct that generally occurred in the dispatch room: "They all talked about women's boobs, butts, had magazines, sex with their wives, sexual positions." (Id.). Further, Mercado explained her reluctance to complain about her treatment based on her view that "[t]hey make up stories and fire people." (Id.). These comments suggest that the sexual harassment alleged in Mercado and Maddox's charges went beyond just being individual treatment that these employees experienced and may have extended to include a pattern or
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practice of discrimination. Thus the claim of a pattern or practice of sexual discrimination is reasonably related to the EEOC's investigation.
Furthermore, the fact that Maddox and then Mercado filed charges alleging similar patterns of sexual harassment by an overlapping group of supervisors and managers provided the EEOC with a reasonable basis to investigate whether these individual claims were symptomatic of a more wide-reaching problem. "In the absence of any indication of delinquency on the part of the investigating agency, the scope of the actual investigation conducted is strongly suggestive of what could reasonably be expected to grow out of the administrative charge." Sidor v. Reno, No. 95 Civ. 9588, 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997).
Maggies was also given notice of the substance of this claim by the EEOC, so its inclusion in the present lawsuit did not catch Maggies by surprise and deny it the opportunity to have addressed the issue through Title VII's administrative procedures. In its Determination, the EEOC informed Maggies that it had "determined that there is reasonable cause to believe that a class of similarly-situated employees was subjected to a sexually hostile work environment." (Dreilinger Aff., Ex. 5).
In contending that the court lacks jurisdiction over this claim, Maggies relies primarily on a case from the Southern District of New York, EEOC v. Golden Lender Financial Group, No. 99 Civ. 8591,2000 WL 381426 (S.D.N.Y. Apr. 13,2000). This reliance, however, is misplaced. Contrary to Maggies' assertion, Golden Lender, while persuasive authority, does not require dismissal of this pattern or practice claim. The facts in Golden Lender, in which the court dismissed a race and national origin pattern or practice claim, are materially different from those at issue in this case. Notably, the Golden Lender court made no mention of the scope of
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the EEOC investigation resulting from the individual complaints of race and national origin discrimination. Thus the court's determination turned solely on the contents of the charges. However, the Golden Lender court did allow a sexual discrimination pattern or practice claim to proceed. In doing so, the court considered the "scope of the investigation conducted by the EEOC" and found that it "support[ed] the conclusion that the claim is reasonably related to the charges filed in this case." Golden Lender, 2000 WL 381426, at *4. For these reasons, Maggies' position is not supported by this case.
The motion to dismiss the EEOC's pattern or practice claims on the ground that they are not reasonably related to the initial charges is denied.
B. Failure to File a Commissioner's Charge Maggies also contends that the pattern or practice claims should be dismissed because the EEOC failed to file a Commissioner's charge regarding these claims. Maggies argues that since the charges by Mercado and Maddox did not involve allegations of a pattern or practice of sexual harassment, the EEOC was obligated to file a Commissioner's charge so that Maggies would be provided with sufficient notice of the nature of this claim. The EEOC counters that a Commissioner's charge was unnecessary as it put Maggies on notice of the claim through its investigation, the filing of its Determination and the conciliation process. Maggies' argument essentially involves the same issue as Maggies' first basis for dismissal. As Maggies itself concedes, the EEOC is not obligated under 42 U.S.C. § 20003-6(e) to always file its own charge before instituting a pattern or practice claim. Since the court found that the EEOC's pattern or practice claim reasonably grew out of the EEOC investigation, the question becomes whether Maggies received adequate notice of the claim without the benefit of
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having it laid out in a separate Commissioner's charge. The court finds that Maggies did receive such adequate notice.
In advancing its argument, Maggies relies principally on EEOC v. Shell Oil Company, 466 U.S. 54 (1984), in which the Supreme Court enunciated standards for the contents of an EEOC charge of a pattern or practice of discrimination. In construing the EEOC's regulation regarding the required contents of a charge, see 29 CFR § 1601.12(a)(3), the Court elaborated the following standard:
Insofar as he is able, the Commissioner should identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which he suspects the discrimination to have been practiced. 466 U.S. 54, 73. Significantly, in quoting this text, Maggies omits the sentence's opening phrase that this information should be provided by the Commissioner "[i]nsofar as he is able." By omitting this phrase, Maggies apparently seeks to tum the Court's instruction into an absolute requirement. This transformation is unwarranted and imposes a level of formality that does not reflect the Court's more general guiding concern to ensure that employers receive "fair notice of the existence of and nature of the charges against them." Shell, 466 U.S. at 77. During the course ofthe EEOC's administrative procedures, Maggies was provided with fair notice of the pattern or practice claim it now faces in this lawsuit. In its Determination, the EEOC specifically indicated that "[b]oth [Mercado and Maddox] allege that the sexually hostile work environment permeated (and continues to permeate) the Maggie's office, thus affecting other employees' work conditions as well." (Dreilinger Aff., Ex. 5). The EEOC went on to inform Maggies that it "has also determined that there is reasonable cause to believe that a class
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of similarly-situated employees was subjected to a sexually hostile work environment." (Id.). Thus even though the charges filed against Maggies did not provide it with notice of the pattern or practice claims, the subsequent EEOC administrative process did. By making these additional allegations in the context of Mercado and Maddox's charges, the EEOC sufficiently notified Maggies that it believed that other women employees had suffered harassment similar to that suffered by Maddox and Mercado. Although greater specificity from the EEOC regarding the temporal aspects of the pattern or practice of discrimination might have been desirable, the EEOC did indicate the likelihood that the conduct "continues to permeate" the office.
The terms of the conciliation offered by the EEOC to Maddox also served to give Maggies notice that the EEOC conceived of the harassment at issue as being broader in scope than just isolated incidents affecting two employees. For instance, in addition to specifying that Maddox and Mercado would each receive monetary awards of $100,000, the EEOC provided that Maggies "will pay each individual, other than Charging Parties, affected by sexual harassment a monetary award ... up to $100,000 in compensatory damages." (Dreilinger Aff., Ex. 6). Inclusion of this term was a clear signal to Maggies that the EEOC believed that other employees had suffered treatment consistent with that described by Maddox and Mercado.
Maggies' motion for dismissal on the basis that the EEOC did not file a Commissioner's charge is denied.
C. Maddox's EEOC Charge Did Not Include an Allegation of Retaliation Maggies asserts that the claim that it retaliated against Maddox must be dismissed because her charge fails to allege a sufficient factual basis to support it. Specifically, Maggies points out that the retaliation claim is duplicative because it relies on the exact same facts as are
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used to support her sexual harassment claim and so fails to point to any retaliatory action that was suffered by Maddox that is not already covered by the sexual harassment claim. The EEOC counters that Maddox's termination was retaliatory because it followed her rejection of sexual advances and her opposition to the harassment.
Maggies has the better of this argument because Maddox did not engage in conduct that would have provided a basis on which Maggies could have retaliated. Absent such a showing, there is no possibility that the EEOC can sustain a case of retaliation. In order to establish a prima facie case for retaliation under Title VII, a plaintiff must show that "(1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence & Co.. Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (citations omitted). There has been no showing that Maddox met the first requirement.
Maddox's charge contains no indication that she engaged in any sort of protected activity in response to the harassment to which she alleges she was subjected. Her charge contains no indication that she complained to anyone at Maggies, only that she resisted and avoided the employees who harassed her. Thus the only potential basis on which Maggies could be said to have retaliated against her would be based on her rejection of other employees' sexual advances. While some courts in this circuit have recognized rejection of a sexual advance as a basis for retaliation, see, e.g., Burrell v. City Univ. of New York, 894 F.Supp. 750, 761 (S.D.N.Y. 1995) (refusing to accede to sexual advance constitutes activity protected under Title VII), the more common and preferred view is that retaliation cannot occur without some affirmative opposition
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from the employee, however slight. See. e.g., Soliman v. Deutsche Bank AG, No. 03 Civ. 104, 2004 WL 1124689, at *12 (S.D.N.Y. May 20, 2004) ("at the very least, there must be some form of professional indicia of a complaint made against an unlawful activity") (internal quotations and citations omitted); Rashid v. Beth Israel Med. Ctf., No. 96 Civ. 1833, 1998 WL 689931, at *2 (S.D.N.Y. Oct. 2, 1998) ("Plaintiffs c1aim--that she suffered an adverse employment action as a result of refusing sexual favors--presents a textbook example of quid pro quo sex discrimination. A retaliation claim, under these circumstances, is duplicative and unnecessary, and runs the risk of confusing ajury."); Del Castillo v. Pathmark Stores. Inc., 941 F.Supp. 437, 438-39 (S.D.N.Y. 1996) ("Protected activity" cannot consist simply of declining sexual advances, or "every harassment claim would automatically state a retaliation claim as well."). For instance, in addition to filing a formal complaint, an employee can engage in "informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Galarza v. Am. Home Assur. Co., 99 F.Supp.2d 251,257 (E.D.N.Y. 2000) (finding even a "vague and unspecific" complaint to management to be "protected activity").
Because there has been no showing that Maddox engaged in any protected activity under Title VII, the EEOC cannot state a claim for retaliation. Accordingly, the Maddox retaliation claim is dismissed.
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III. CONCLUSION For the reasons stated above, the defendant's motion to dismiss the pattern or practice
claims is DENIED, while the motion to dismiss the Maddox retaliation claim is GRANTED. SO ORDERED.

Dated: November J.~ ,2004
Brooklyn, N.Y.

/s/

·X

1-

( r

Nicholas G. Garaufis

United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------····----······-············-·x
EQUAL EMPLOYMENT OPPORTUNITY: COMMISSION.
Plaintiff;

FILED
IN CLERK'S OfFICE
U.S. DI('''T,n 1,rr r n1 VH. E,OlN.Y.
* * MAY 2 6 2005
BROOKLYN OFFICE
Civil Action. No. 03·CV-6087 (NOGl (KAM)

v.

MAOGIES PARATRANSIT CORP,

CONSENT DECREE

Defendant. ---····--·············-··..·········---···---------x

This action was initiated on December 3. 2003 by the Plaintiff. the Equal Employment

Opportunity Commission (hereinafter the "EEOC"). an agency of the United States Government.

alleging that Maggies Paratransit Corp, (hereinafter "Defendant") discriminated against claimants

Mia Maddox. Wendy Mercado, and other similarly situated individuals who are all fonner

employees of Defendant, in violation of Section 703(a~ of Title VII of the Civil Rights Act of

1964. as amended, 42 U.S.C. 2000e·2(a), by engaging in a pattern of sexual harassment and the

creation of a hostile environment. retaliation against those opposing unlawful activity, and by

discharging claimants on the basis of their sex.

The EEOC and Maggies (hereinafter "the parties") desire to settle this action, and

therefore do hereby stipulate and consent to the entry of this Decree as final and binding between

Maggies and the EEOC, whom are the signatories hereto, and their successors or assigns. The

parties have agreed that this Decree may be entered into without Findings of Fact and Conclusions

of Law having been made and entered by the Court.

In consideration of the mutual promises of each party to this Decree, the sufficiency of

Case 1:03-cv-06087-NGG-KAM Document 41 Filed 05/26/2005 Page 2 of 12
which is hereby acknowledged, the EEOC and Maggies agree as follows, the Court finds appropriate, and it is therefore ORDERED, ADJUDGED AND DECREED that:
1. This Decree resolves all issues raised in EEOC Charge Numbers 160-A2-01947, 16G-2003-11379, 160-2003-03338, and all issues that were raised in the EEOC'stomplaint in this case. Aside from the matters identified in the previous sentence, this Decree in no way affects EEOC's right to process any pending or future charges that may be filed against defendant and to commence civil actions on any such charges.
2. The parties agree and the Court finds that this Court has jurisdiction of the subject matter of this action and of the parties, that venue is proper, and that all administrative prerequisites have been met No party shall contest the validity of this Decree, or the jurisdiction of the federal district court to enforce this Decree and its terms.
3. This Decree is being issued with the consent of the parties and does not constitute an adjudication or finding by this Court on the merits of the allegations of the Complaint Nothing contained in this Decree shall be construed as an admission of liability on the part of Maggies, which has denied and continues to deny the allegations of the Complaint asserting sexual harassment, the creation of a hostile environment, retaliation, and lmlawful discharges under Title VII.
4. Maggies, its managers, officers, agents, successors, and assigns, will not discriminate against any individual because of that individual's sex, engage in sexual harassment toward any employee, or engage in retaliation of any individual for assl.,rting her or his rights under Title VII. Maggies and its agents further agree not to retaliate against any individual, who has participated in this matter in some way or given testimony in this matter or asserted her or his
2

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rights under Title VII, including, but not limited to, Mia Maddox, Wendy Mercado, Luisa Sabat,

Regina John, Wendy Green, and Tamara Wilson.

A. PAYMENT

5. In settlement of this dispute, Maggies agrees to pay damages in the amount of

$110,000 (one hundred and ten thousand doll8l'll) to harmed individuals ("claimants") pursuant to

a separate Schedule attsched to the Consent Decree as Exhibit A. It agrees to pay half of the

amount designated for each claimant in Exhibit A within ten (10) business days after the Court

"So Orders" this Decree. Maggies agrees to pay the other half sixty (60) days thereafter. Maggies

will send checks to claimants by certified mail, return receipt requested, within the above time.

6. a) Except as specified below in paragraph b, damages paid in this matter shall be

deemed compensatory damages. Defendant shall issue to each Claimant an IRS Form 1099.

Each claimant shall be responsible for any taxes owed with respect to these payments. Maggies

will send copies of each check and return receipt to Michael Ranis, New York District Office of

the EEOC, after Maggies receives the return receipt from each of the six claimants and agrees to

forward to the EEOC copies of the endorsed checks within ten (10) business days of receipt of the

endorsed checks. Maggies will also send copies of the 1099 forms to each Claimant by January

31,2006.

B) Ninety percent of the total monetary amount designated for claimant Luisa

Sabat is compensation for physical injuries. A 1099 Form will be issued only for the 10% portion

of damages representing compensatory damages for non-physical harm.

B. NOTICE AND POSTING

7.

Maggies shall ensure that EEOposters pertaining to laws prohibiting

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Case 1:03-cv-06087-NGG-KAM Document 41 Filed 05/26/2005 Page 4 of 12
discrimination and sexual harassment are posted in a conspicuous place in all of its locations in accordance with 29 C.F.R. §1601.30.
8. Within ten (10) days following the date the Court "So Orders" the Consent Decree, Maggies agrees to post the remedial Notice attached as Exhibit B in a conspicuous place in all of its locations specifYing the terms and conditions of the settlement of this case. The notice shall remain posted through the duration of this Consent Decree. C. TRAINING
9. At some date after June 30, 2005 and before December 31. 2005, Maggies agrees to provide no fewer than two (2) hours of training concerning sexual harassment for all Defendant's employees other than its drivers, to be conducted by Rossein Associates or another outside agency or trainer to be reviewed and approved by the EEOC. The training shall include discussion of Maggies Sexual Harassment Policy, the complaint procedure, and Maggies' policy prohibiting retaliation for the making of any such complaints. The same training will be conducted again at some date after June 30, 2006 and before December 31, 2006.
10. Within 180 days of the effective date of this Decree, Maggies agrees to provide no fewer than four (4) hours of additional training concerning sexual harassment for all Defendant's management/supervisory employees and human resources personnel who are responsible for investigating sexual harassment complaints, to be conducted by Rossein Associates or another outside agency or trainer to be reviewed and approved by the EEOC. Such will include, but is not limited to, training for Ray Perez, Augie Vona, the dispatch managers, driver supervisors, and human resources personnel. Such training will focus on identifYing sexual harsssment, the complaint procedure, assuring that individuals are not retaliated against for making a complaint,
4

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and proper investigation of such complaints. The same training will be conducted again at some date after June 30, 2006 and before December 31, 2006.
I!. Within 14 days of the date the Court "So Orders" this Decree, Maggies will distribute to all of its employees a copy of defendant's Sexual Harasament policy, and complaint procedure attached as Exhibit C. Maggies also agrees that all new employees will be provided a copy of defendant's Sexual Harassment policy, which includes a provision prohibiting retaliation for making a complaint, and defendant's complaint procedure regarding harassment and as attached as Exhibit C. D. MONlTORINQ
12. Within thirty (30) days of the completion of each of the four trainings described in the preceding two paragraphs, Maggies shall provide Michael Ranis of the EEOC's New York District Office with a listing and sign in sheets indicating all employees, managers and supervisors who have attended and received the training, including the dates of the trainings.
13. Six and eighteen months after the Court "So Orders" the Decree, Maggies shall provide a written report to the Michael Ranis of the EEOC's New York District Office, with information regarding any verbal or written complaints of sexual harassment from employees which were received during the preceding period. Maggies shall provide Michael Ranis of the EEOC's New York District Office the name of the complainant, the name of the alleged harasser, a summary of the complaint, the location, the results of any investigation of the complaint, and any remedial action taken by Maggies. EEOC may monitor Maggies compliance with Title VII and this Consent Decree by inspection of Maggies' premises and records as well as intervieWing witnesses and employees during normal business hours, upon reasonable notice and without
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interfering with the operation of Maggies' business.

14. Nothing in this Decree shall be construed to preclude the EEOC from enforcing this

Decree in the event that Maggies fails to perform the promises and representations contained

herein. The Court shall retain jurisdiction over any such enforcement proceedings during the

duration of this Consent Decree. Unless Maggies fails to perform its obligations hereunder, the

EEOC will not seek any further damages or relief in this action.

15. The parties agree to bear their own attorneys' fees and costs associated with this

case.

16. This Decree will remain in effect for two years.

SO ORDERED, ADJUDGED AND DECREED.

of~1005 dD Signed this day

.

fuDGE NICHOLAS G~RAUFIft1
U.S.DJ.
APPROVED IN FORM AND CONTENT: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION '"
~!Jt)~-
Blizabeb\ Grossman
Acting Regional Attorney
Nora E. Curtin Acting Supervisory Trial Attorney
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Michael B. Ranis (MR-3757) Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New York District Office 33 Whitehall Street New York, NY 10014 (212) 336-3701
h1~~~
Project manager MAGGIES PARATRANSIT CORP.
'. Pollack (JP-1409) Park Avenue South, 10th Fir. N. N York,NewYork 10016 (2 2) 696-4848
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Exhibit A Schedule of Poyments to Be Made by Defendants:
Mia Maddox:
Luisa Sabot: 90% as damages for physical injury, without a 1099:
Wendy Mercado:
Tamara Wilson: Wendy Green: Regina John:
TOTAL:

$40,000
$34,000 $15,000 $11,000 $7,000
$3,000
$110,000

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Exhibit B NOTICE
1. This NOTICE to all employees ofMAGGIES PARATRANSIT CORP. is being posted and provided as part of a consent decree between MAOOIES PARATRANSIT CORP. and the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
2. Federal law requires that there be no discrimination against any employee or applicant for employment because ofsex, nor any sexual harassment or creation of a hostile work environment because of an individual's sex. It also requires that there be no discrimination against any employee or applicant who made a complaint of discrimination because of sex, race, national origin, color or religion with respect to hiring, compensation, promotion, discharge, or other terms, conditions, or privileges of employment.
3. MAGGIES PARATRANSIT CORP. strongly supports and will comply with such Federal law in all aspects, and it will not take any action against employees because they have acted on those rights under the law by filing charges with the U.S. Equal Employment Opportunity Commission or by otherwise complaining or opposing employment practices made unlawful under Title VII of the Civil Rights Act of 1964, as amended.
4. The Equal Employment Opportunity Commission maintains offices throughout the United States. Its toll-free telephone number is I-SOO-USA-BEOC.
5. This NOTICE will remain posted until April 30, 2007. SIGNED this ~ day of \.ADd, 2005.
\
President of Operations, MAGGIES PARATRANSIT CORP.
DO NOT REMOVE THIS NOTICE UNTIL APRIL 30, 2007
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Exhibit C
SEXUAL HARASSMENT POLICY
Maggies Paratransit Corp. strongly believes that all people have the right to work in an environment free from any form of unlawful harassment, including sexual harassment. Therefore, Maggies Paratransit Corp. strictly prohibits unlawful harassment on the basis of sex, religion, race, national origin, age, marital status, sexual orientation, disability or any other protected characteristic. Maggies Paratransit Corp. will not tolerate any unlawful harassment by or against any of its employees, vendors, suppliers, or other third parties, either on Company premises or off premises while on Company business.
Harassment includes, but is not limited to: I. Verbal harassment, such as epithets, comments about a person's appearance or personal life, derogatory comments or slurs; 2. Physical touching, such as assault, Il1!peding or blocking movement or any physical interference with normal work or movement when directed at an individual (e.g. massaging someone's shoulders, touching someone's hair or clothes, or intentionally brushing up against another's body); 3. Visual forms of harassment, such as displaying or circulating, on paper or electronically (e.g. in email or on the internet), any derogatory object, poster, cartoon, drawing, picture, video, or text that is offensive or shows hostility or aversion toward a particular protected characteristic, Including so-called "jokes"; 4. Requests for sexual favors Of unwanted sexual advances or flirtations;
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S. Conditioning any term or benefit of employment upon sexual favors (or implying that such is a condition of employment), or
6. Any other conduct that unreasonably interferes with an employee's performance of his or her job or that creates an intimidating, hostile or offensive working environment.
This policy does not prohibit completely consensual relationships between employees, but both parties must be conscious of the contours of such a relationship in today's climate. Specifically. both parties must realize the potential dangers that exist wbt.'II a subordinate and a supervisor are involved in a relationship. If one of the parties no longer wants the relationship to continue (i.e. withdraws his or her consent). the relationship must cease immediately.
We Encourage Employees to Report Harassing Condud We encourage employees to report unlawful harassing conduct, and assure you that
you will not face any adverse treatment by the Company or any employee for reporting harassment in good faith or participating in the investigation of a harassment complaint. Without your full cooperation our efforts to investigate such allegations may be hindered.
How to Report Possible Unlawful Harassment Any employee who is subject to or witnesses possible unlawful harassment must
immediately report it to the attention of Agostino Vona at 234 Logan Street, Brooklyn, NY 11208, (118) 641·2988 Ext 12. If you do not feel comfortable going to him, you can go to
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Mary Rohan at the same address and phone number or Marie Campo at 233 Norwood Avenue, Brooklyn, NY 11208, (718) 647·5100. Any supervisor who becomes aware of unlawful harassing conduct must immediately report it to Mr. Vona or Ms. Campo.
Confidentiality will be maintained to the greatest extent possible, consistent with our obligation to conduct a thorough investigation. The matter will be thoroughly investigated and, after reviewing all the evidence, a determination will be made concerning whether reasonable grounds exist to believe that unlawful harassment has occurred. Neither the complaining party nor the alleged harasser will participate in reaching that conclusion. The Company will then take appropriate action.
Any employee who engages in unlawful harassing conduct will be disciplined, up to and including immediate termination. We will not accept any excuses, including that the employee "did not mean any harm" or "was just kidding". Additionally, a person who engages in unlawful harassment may be liable to the victim for monetary damages.
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U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:03-cv-06087-NGG-KAM

CLOSED

United States Equal Employment Commission v. Maggie's Para Transit Corp. Assigned to: Judge Nicholas G. Garaufis Referred to: Magistrate-Judge Kiyo A. Matsumoto Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 12/03/2003 Date Terminated: 05/26/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Mediator
Robert Lewis TERMINATED: 01/11/2005

represented by Robert Lewis Office of Robert Lewis 53 Burd St Nyack, NY 10960 845-358-7100 Fax: 845-353-6943 Email: lewlaw1@aol.com TERMINATED: 01/11/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
United States Equal Employment Commission

represented by Elizabeth Anne Grossman Equal Employment Opportunity Commission New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004 212-336-3696 Fax: 212-336-3623 Email: elizabeth.grossman@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren G. Dreilinger U.S. EEOC 33 Whitehall Street 5th Floor New York, NY 10004 212-336-3678 Fax: 212-336-3721 Email: lauren.dreilinger@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Maggie's Para Transit Corp.

Michael B. Ranis Equal Employment Opportunity Commission New York District Office 33 Whitehall St 5th Floor New York, NY 10004 (212) 336-3701 Email: michael.ranis@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffery D. Pollack Mintz & Gold, LLP 444 Park Avenue South New York, NY 10016 212-696-4848 Fax: 212-696-1231 Email: pollack@mintzandgold.com ATTORNEY TO BE NOTICED
Jerald M. Stein Law Office of Jerald M. Stein 470 Park Avenue South 10th Floor North New York, NY 10016-7321 (212) 481-6698 Fax: (212) 481-6803 Email: jmslaw@nyc.rr.com ATTORNEY TO BE NOTICED

Date Filed 12/03/2003 12/03/2003 02/02/2004 02/06/2004

#

Docket Text

1 COMPLAINT against Maggie's Para Transit Corp., filed by United States Equal Employment Commission. (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 12/04/2003)
2 NOTICE of Appearance by Elizabeth Anne Grossman on behalf of United States Equal Employment Commission. (Lee, Tiffeny) (Entered: 12/16/2003)
3 SCHEDULING ORDER:Initial conference scheduled for 4/6/04 @ 11:00 a.m.Signed by Judge Steven M. Gold on 02/02/2004. (Attachments: # 1)(Vasquez, Lea) (Entered: 02/02/2004)
17 Letter dated 2/3/04 from Jeffrey Pollack to Judge Garaufis requesting a conference regarding an intent to file a motion to dismiss plaintiff's pattern and

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02/10/2004 02/13/2004 02/25/2004 03/01/2004
03/01/2004 03/08/2004
03/19/2004 03/29/2004 04/02/2004
04/13/2004 04/16/2004 04/16/2004

practice allegations and claims. (Black, Amanda) (Entered: 06/02/2004)
7 NOTICE of Attorey Appearance by Lauren Dreilinger o/b/o United States Equal Employment Commission. (Lee, Tiffeny) (Entered: 03/17/2004)
4 Letter MOTION to Dismiss Requested by Maggie's Para Transit Corp.. (Stein, Jerald) (Entered: 02/13/2004)
5 NOTICE of Appearance by Jerald M. Stein on behalf of Maggie's Para Transit Corp. (Attachments: # 1 Supplement Notice of Filing# 2 Supplement Certificate of Service)(Stein, Jerald) (Entered: 02/25/2004)
6 Minute Entry for proceedings held before Nicholas G. Garaufis: Pre Motion Conference held on 3/1/2004. Dft may make Rule 12(b)(6) motion to dismiss the Pattern or Pradle claims. Motion due 3/31/2004; Pltt's Opposition due 5/7/2004; Dft's Reply by 5/21/2004. (ESR: A. Dandridge) (Lee, Tiffeny) (Entered: 03/08/2004)
8 ORDER extending time of defendant to answer to fourteen (14) days after the pre-motion conference is held. Signed by Judge Nicholas G. Garaufis on Feb 23, 2004. c/emailed(Lee, Tiffeny) (Entered: 03/19/2004)
Case set to ECF status. All civil actions before this Judge are ECF matters. It is MANDATORY that you file all original documents electronically and forward a hard copy, labeled courtesy copy, to chambers. Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov. (Lee, Tiffeny) (Entered: 03/08/2004)
9 AMENDED COMPLAINT against Maggie's Para Transit Corp., filed by United States Equal Employment Commission. (Attachments: # 1 # 2)(Dreilinger, Lauren) (Entered: 03/19/2004)
10 NOTICE of Appearance by Jeffery D. Pollack on behalf of Maggie's Para Transit Corp. (Attachments: # 1 Notice of Filing# 2 Certificate of Service)(Pollack, Jeffery) (Entered: 03/29/2004)
11 ORDER approving briefing schedule of defendant's motionto dismiss as follows: defendant's motion 4/16; plaintiff's opposition 5/21; defendant's reply 6/4. Signed by Judge Nicholas G. Garaufis on 3/24/2004. Endorsed on 3/22/2004 letter from Jeffrey D. Pollack, Esq. to Judge Garaufis. c/em(Lee, Tiffeny) (Entered: 04/02/2004)
12 ORDER granting application for the re-scheduling of scheduling conference. (new date not specified in this order) Signed by Judge Steven M. Gold on 4/7/2004. Endorsed on 4/5/2004 letter of Lauren G. Dreilinger, Esq.(Lee, Tiffeny) (Entered: 04/13/2004)
13 Letter from Jeff Pollack to Lauren Dreilinger Regarding Motion to Dismiss. (Pollack, Jeffery) (Entered: 04/16/2004)
14 SCHEDULING ORDER: Initial Conference set for 5/4/2004 11:00 AM in Courtroom A before Magistrate-Judge Steven M. Gold.. Signed by Judge Steven M. Gold on 04/16/2004. (Vasquez, Lea) (Entered: 04/16/2004)

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04/30/2004 05/06/2004 05/10/2004 06/03/2004 06/03/2004
06/03/2004 06/04/2004 06/04/2004
06/23/2004 07/30/2004 09/23/2004

15 Letter from Lea D. Vasquez to All counsel Regarding re-scheduling of initial conference. (Vasquez, Lea) (Entered: 04/30/2004)
16 Letter dated 4/5/04 from Lea D.Vasquez to Counsel Regarding status conference will be re-scheduled from 4/6/04 only if the motion is denied. (Drayton, Lorraine) (Entered: 05/06/2004)
23 ORDER granting application that the 5/7/2004 conference be adjourned to 6/4/2004 @ 2:30 p.m. Signed by Judge Steven M. Gold on 5/3/2004. Endorsed on 5/3 letter form Jeral Stein, Esq.(Lee, Tiffeny) (Entered: 07/01/2004)
18 Notice of MOTION to Dismiss Pattern or Practice Claims by Maggie's Para Transit Corp.. Responses due by 5/21/2004 (Stein, Jerald) (Entered: 06/03/2004)
19 AFFIDAVIT in Opposition re 18 Notice of MOTION to Dismiss Pattern or Practice Claims filed by United States Equal Employment Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit)(Stein, Jerald) (Entered: 06/03/2004)
20 REPLY to Response to Motion re 18 Notice of MOTION to Dismiss Pattern or Practice Claims filed by Maggie's Para Transit Corp.. (Stein, Jerald) (Entered: 06/03/2004)
21 RESPONSE in Opposition re 18 Notice of MOTION to Dismiss Pattern or Practice Claims filed by United States Equal Employment Commission. (Attachments: # 1 Supplement Opposition to Motion to Dismiss (continued))(Stein, Jerald) (Entered: 06/04/2004)
Minute Entry for proceedings held before Steven M. Gold : Initial Conference Hearing held on 6/4/2004. Dreilinger for plaintiff, Pollack and Stein for defendant. Parties' proposed schedule adopted, with the understanding that revisions will likely be necessary once defendant's pending motion to dismiss certain aspects of the case is decided. Discovery will proceed while the motion is pending, but focused upon the allegations made by the named charging parties pending resolution of the motion or further order of the court. Defendant shall, however, promptly provide an updated list of employee names and addresses, specifically indicating if contacting any of the employees listed would be claimed to violate the attorney-client privilege. NEXT CONFERENCE: OCTOBER 28, 2004 AT 11 AM. (Court Reporter n/a.) SO ORDERED(Gold, Steven) (Entered: 06/04/2004)
22 Letter dated 3/15/04 from Jeffrey D. Pollack Esq. to USDJ Garaufis informing the court that they may request modification of the briefing schedule once the amended complaint is reviewed. (Williams-Jackson, Sandy) (Entered: 06/23/2004)
Case reassigned to Judge Kiyo A. Matsumoto. Judge Steven M. Gold no longer assigned to the case. (Bowens, Priscilla) (Entered: 07/30/2004)
24 Letter from Maggies' counsel to Magistrate Judge Matsumoto Regarding proposed revised scheduling order. (Attachments: # 1 Text of Proposed Order No. 2)(Stein, Jerald) (Entered: 09/23/2004)

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09/27/2004 11/09/2004
11/09/2004 11/10/2004
11/17/2004 11/30/2004 12/01/2004

25 REVISED SCHEDULING ORDER regarding schedule adopted 6/4/2004. The status conference previously scheduled for 10/28/2004 has been rescheduled for 11/09/2004 @ 3:30 p.m. Signed by Judge Kiyo A. Matsumoto on 9/24/2004. (Lee, Tiffeny) (Entered: 09/27/2004)
Minute Entry for status conference before Kiyo A. Matsumoto on 11/9/2004. Plaintif appeared by Michael Ranis, Esq. and defendant appeared by Jeffrey Pollack, Esq. and Jerald Stein, Esq. The defendant has filed a motion to dismiss the pattern and practice claims. Discovery is proceeding pursuant to the revised scheduling order which will remain in effect. Plaintiff will initiate a telephone status conference on 1/13/05 at 3:00 p.m., during which the plaintiff will state whether it will utilize an expert. The parties have also requested that the case be referred for mediation, to be scheduled on or after 12/15/04. The parties shall advise the undersigned Magistrate Judge of the outcome of the defendant's motion to dismiss and the mediation so that any necessary adjustments may be made to the discovery schedule. (Matsumoto, Kiyo) (Entered: 11/09/2004)
ORDER REFERRING CASE to Mediation.Selection of Mediator due by 12/31/2004. The parties are to contact the Alternative Dispute Resolution Department for further instruction regarding mediation. Signed by Judge Kiyo A. Matsumoto on 11/9/04. (Kabrawala, Ameet) (Entered: 11/09/2004)
26 Case referred to MEDIATION. The PARTIES are offered the option of: a) using a mediator from the courts panel; b) selecting a mediator on their own; or c) seeking the assistance of a reputable ADR organization in the selection of a Mediator. All parties, or a principal of a party, with authority to settle, are directed to attend the mediation sessions. MEDIATION Instructions sent to Counsel. Letter of Instructions document ATTACHED. COUNSELS are to schedule the mediation and confirm in writing by 11/24/2004 to Gerald P. Lepp, ADR Administrator, the name of the mediator and the date of the first mediation session. COUNSELS are to confer with each other and to speak with the Mediator in selecting a Mediator and the Mediation session date(s). See the attached instructions. See the web pages: http://www.nyed.uscourts.gov/adr/ http://www.nyed.circ2.dcn/dadr/ (Lepp, Gerald)(dc) (Entered: 11/10/2004)
27 First MOTION for Leave to Appear Notice of Appearance by United States Equal Employment Commission. (Attachments: # 1 Notice of Appearance)(Ranis, Michael) (Entered: 11/17/2004)
28 MEMORANDUM & ORDER granting in part and denying in part Defendant's 18 Motion to Dismiss. Signed by JudgeNicholas G. Garaufis on 11/29/2004. c/m-chambers (Lee, Tiffeny) (Entered: 11/30/2004)
SELECTION OF MEDIATOR Robert Lewis rep by Robert Lewis selected as Mediator.The first mediation session is scheduled for 12/15/04 at 9:30AM in the Offices of the Equal Employment Opportunity Commission, 33 Whitehall Street, 11th floor, New York, NY 10004. Counsel must file with the Mediator: (1) immediately, their client's Complaint or Answer; and (2) by 12/10/04, their client's Mediation Statement outlining facts, legal issues, settlement discussions and any proposed new approaches and the name and title of the client representative with full settlement authority who will attend the mediation session in person. Attendance in person is required of the Trial Attorney, Insurance Adjustor, and client representative with full settlement authority. The

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12/03/2004 12/09/2004 12/15/2004 12/23/2004 01/04/2005
01/06/2005 01/07/2005
01/10/2005 01/10/2005 02/24/2005 04/04/2005

Mediator's contact information is: Robert Lewis, Esq., 20 Sinclair Drive, Kings Point, NY 11024-1622; telephone (516) 482-1448; email address "Lewis 202@optonline.net".Report of Mediation due by 12/30/2004.(Lepp, Gerald) (Entered: 12/01/2004)
29 ANSWER to Amended Complaint by Maggie's Para Transit Corp..(Pollack, Jeffery) (Entered: 12/03/2004)
30 Notice of MOTION for Certificate of Appealability via Interlocutory Appeal by Maggie's Para Transit Corp.. (Attachments: # 1 Memorandum of Law In Support of Motion to Permit Interlocutory Appeal# 2 Certificate of Service)(Stein, Jerald) (Entered: 12/09/2004)
31 Letter from Jeff Pollack to Magistrate Matsumoto Regarding Scheduling Order. (Pollack, Jeffery) (Entered: 12/15/2004)
32 RESPONSE in Opposition re 30 Notice of MOTION for Certificate of Appealability via Interlocutory Appeal filed by all defendants. (Graziano, Louis) (Entered: 12/23/2004)
33 SCHEDULING ORDER NO. 3: Discovery end 3/2/2005. Dispositve motions due by 4/18/2005. Opposition by 5/18/2005. Replies by 6/20/2005. The telephone conference scheduled for 1/13/2005 shall proceed as scheduled. Plaintiff to initiate. Signed by Judge Kiyo A. Matsumoto on 12/16/2004. (Lee, Tiffeny) (Entered: 01/04/2005)
REPORT of Mediation. This case has settled after a mediation session on 12/15/04. Counsel will forward the assigned judges a stipulation of discontinuance.Attorney Questionnaires due by 1/20/2005.(Lepp, Gerald) (Entered: 01/06/2005)
ORDER: Because the parties have reached a settlement in this action, the telephone conference scheduled for 1/13/2005 is adjourned without date. The parties are directed to submit a fully executed original stipulation of dismissal to District Judge Garaufis by 1/31/05. So Ordered. Signed by Judge Kiyo A. Matsumoto on 1/7/05. (Kabrawala, Ameet) (Entered: 01/07/2005)
34 Letter from Jeff Pollack to Judge Garaufis Regarding Tentative settlement. (Pollack, Jeffery) (Entered: 01/10/2005)
35 MEMORANDUM & ORDER denying Maggies Paratransit Corp's 30 Motion for Certificate of Appealability. Signed by JudgeNicholas G. Garaufis on 1/6/2005. (Lee, Tiffeny) (Entered: 01/10/2005)
36 ENDORSED ORDER granting application. Consent decree shall be filed on or before April 1, 2005. Parties are reminded that this is an ECF case. So Ordered. Signed by Judge Kiyo A. Matsumoto on 2/16/2005. (Lee, Tiffeny) (Entered: 02/24/2005)
ORDER re docket no. 36: Without explantion, the parties have failed to comply with this Court's Order dated 2/16/05. Accordingly, the parties shall comply on or before 4/7/05. So Ordered. Signed by Judge Kiyo A. Matsumoto on 4/4/05. (Kabrawala, Ameet) (Entered: 04/04/2005)

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Eastern District of New York - Live Database Version 3.0.5 Release - D... https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?205563323323711-L_3...

04/08/2005
04/18/2005 04/19/2005 04/27/2005 04/28/2005 05/19/2005 05/26/2005

37 ENDORSED ORDER: Parties shall report on the status of this case on or before 4/18/2005. Parties shall include the name and case no. when corresponding with the court. The parties are reminded for the third and final time that this is an ECF case. Ordered by Judge Kiyo A. Matsumoto on 4/7/2005. (Lee, Tiffeny) (Entered: 04/18/2005)
38 Letter MOTION for Extension of Time to File Consent Decree by United States Equal Employment Commission. (Ranis, Michael) (Entered: 04/18/2005)
ORDER granting 38 Motion for Extension of Time to File Consent Decree. Consent Decree shall be filed on or before 4/29/05. So Ordered by JudgeKiyo A. Matsumoto on 4/19/05. (Kabrawala, Ameet) (Entered: 04/19/2005)
39 Letter from Counsel for Defendant to Magistrate Judge Matsumoto Regarding filing of Consent Decree. (Stein, Jerald) (Entered: 04/27/2005)
ORDER re 39 Letter dated 4/27/05: Consent Decree shall be filed on or before 5/20/05. So Ordered by Judge Kiyo A. Matsumoto on 4/28/05. (Kabrawala, Ameet) (Entered: 04/28/2005)
40 SETTLEMENT AGREEMENT Is Consent Decree btw. Parties by United States Equal Employment Commission. (Attachments: # 1 Text of Proposed Order Proposed Consent Decree)(Ranis, Michael) (Entered: 05/19/2005)
41 Consent Decree; Ordered by Judge Nicholas G. Garaufis on May 20, 2005. (case closed)(Lee, Tiffeny) (Entered: 05/27/2005)

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 351 F.Supp.2d 51 (2005)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
MAGGIES PARATRANSIT CORP., Defendant.
No. 03-CV-6087 (NGG)(KAM).
United States District Court, E.D. New York.
January 6, 2005.
52 *52 Elizabeth Anne Grossman, New York, NY, for Plaintiff.
MEMORANDUM & ORDER
GARAUFIS, District Judge.
On November 29, 2004, the court issued a Memorandum & Order ("November M & O") that granted in part and denied in part defendant Maggies Paratransit Corp.'s ("Maggies") motion to dismiss. Maggies now moves the court to certify for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), its decision to deny dismissal of the EEOC's pattern or practice claim. Familiarity with the facts and issues of the November M & O is assumed.
For the following reasons, this motion is denied.
I. LEGAL STANDARD
Under 28 U.S.C. § 1292(b), a district judge may certify a question for interlocutory appeal where: (1) the decision to be appealed involves a controlling issue of law; (2) there is a substantial ground for difference of opinion on the controlling issue of law; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. "These three prerequisites create a significant hurdle to certification, and the barrier is elevated by the mandate that section 1292(b) be `strictly limited' because `only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" McNeil v. Aguilos, 820 F.Supp. 77, 79 (S.D.N.Y.1993) (quoting Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.1990) (internal quotations and citations omitted)). Further, the Second Circuit has "urge[d] the district courts to exercise great care in making a § 1292(b) certification. For after all, the district courts are presumed to be more familiar with a case than is the court of appeals prior to briefing and argument." Westwood Pharms., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (1992).
II. DISCUSSION
Based on the advisability of a district court taking a cautious approach in determining whether to certify an issue for interlocutory appeal, it is clear that the Defendant's motion must be denied. While the question of law is controlling, this fact is outweighed by the absence of legitimate dispute regarding the relevant legal standard. 53 Further, based on the relatively *53 meager likelihood of success should Maggies be allowed to appeal, such an appeal cannot be viewed as materially advancing the termination of the litigation.
A. Controlling Question of Law
Under the first prong of 1292(b), the court must determine whether the November M & O rests on a "controlling question of law." In the context of a 1292(b) motion, the term controlling question has a broader definition than it is typically accorded in other situations; it can include not only those issues that will resolve the action in its entirety, but those that are dispositive in other respects, such as whether a particular claim exists. 19 Moore's Federal Practice § 203.31 (Matthew Bender 3d ed.2004) (collecting Second Circuit cases in which the existence of a claim was decided on interlocutory appeal). Based on this standard, the question of whether the EEOC can

maintain its pattern or practice claim is a controlling question of law in this case: if the Second Circuit were to reverse the court's decision in the November M & O, the claim would be dismissed.
B. Substantial Ground for Difference of Opinion on the Controlling Issue of Law
Maggies contends that the Eastern District and Southern Districts of New York are split concerning the standards necessary to bring a pattern or practice claim and that the Second Circuit should have an opportunity to resolve this divergence. Maggies' characterization of a split between this court and the Southern District, as reflected by the decision in EEOC v. Golden Lender Fin. Group, No. 99 Civ. 8591 (JGK), 2000 WL 381426 (S.D.N.Y. Apr.13, 2000), is simply incorrect.
Maggies misconstrues the import of Golden Lender by extrapolating the following meaning from the case: " Golden Lender stands for the rule that where only individual claims are alleged in the charge(s), by definition, no pattern or practice claim can be `reasonably related' to that charge." (Def. Memo. at 5). This distillation of the case's meaning fails to account for the specific facts of the case and also overly simplifies the case's treatment of the law in this area. The key fact that Maggies' analysis glosses over is that in Golden Lender the pattern or practice claims regarding race and national origin seemed to have appeared from nowhere; this is not the case in the present matter, where the pattern or practice claims stemmed directly from the EEOC's investigation. Notably, the Golden Lender court's analysis concerning the race and national origin pattern and practice claims deals solely with the substance of the charges without any mention of the EEOC investigation or its findings. Since the court later indicated that the scope of an investigation can be material to determining the validity of a pattern or practice claim when it allowed the sex discrimination pattern or practice claim to proceed, this absence is significant. It suggests that the EEOC's investigation of the claims raised in Golden Lender did not turn up any such information. In this case, however, the EEOC's investigation did reveal allegations of a pattern or practice of sexual discrimination. (See November M & O at 6-7). Thus a better summation of the holding of Golden Lender is that where only individual claims are alleged in the charge(s) and the EEOC's investigation does not reveal such allegations, no pattern or practice claim can be "reasonably related" to the charge(s). Judged against this more complete standard, this court's decision is in line with the holding in Golden Lender.
54 *54 The reading of Golden Lender that Maggies favors also fails to account for relevant Second Circuit precedent in this area in much the same way that it fails to acknowledge the crucial factual distinction with this case. While the general rule is that a complaint may only reflect the substance of the charges filed with the EEOC, the Second Circuit has made clear that exceptions to this requirement exist. Of relevance here is the exception that allows a complaint to reflect the substance of an "EEOC investigation which can reasonably be expected to grow out of the charge that was made." Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir.2001), cert. denied, 536 U.S. 922, 122 S.Ct. 2586, 153 L.Ed.2d 776 (2002). This exception was not lost on the court in Golden Lender, but Maggies appears to avoid this judicial nuance because it would and does undercut its argument. The Golden Lender court decided that the sex discrimination pattern or practice claim could proceed not only because two of the three charges alleged a pattern and practice but also because it found that the "scope of the investigation conducted by the EEOC ... supports the conclusion that the claim of a pattern and practice of sex discrimination is reasonably related to the charges filed in this case." 2000 WL 381426 at *4.
Finally, Maggies' reverence for Golden Lender notwithstanding, that decision alone does not represent the entirety of the Southern District's body of law concerning this issue. Indeed, this court relied on another case from the Southern District in reaching its conclusions in the November M & O. In Sidor v. Reno, No. 95 Civ. 9588 (KMW), 1997 WL 582846, at *10 (S.D.N.Y. Sept.19, 1997), which was cited with approval in Golden Lender, the court found the fact that the plaintiff had alleged discrimination against other deaf employees during the course of the EEOC investigation was sufficient to allow a pattern or practice claim to proceed even though no such claim was made in the plaintiff's initial charge. This holding demonstrates that the trial courts within the Second Circuit do not in fact view the standards for sustaining a pattern or practice claim differently. Thus, even if I were to assume for the sake of argument that this court's previous decision and the Golden Lender ruling were at odds, the court would be under no obligation to adhere to a differing view by a court of coordinate jurisdiction.
C. Advancing the Ultimate Termination of the Litigation

Because this court has determined that the question at issue is not the subject of a substantial difference of opinion within the circuit, there is no basis for viewing this interlocutory appeal as a means of advancing the ultimate termination of the litigation. As the Second Circuit has noted: "Section 1292(b)'s legislative history reveals that although that law was designed as a means to make an interlocutory appeal available, it is a rare exception to the final judgment rule that generally prohibits piecemeal appeals." Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.1996). Since the odds are against Maggies' success on this appeal, such a step would only serve to delay resolution of the case. See, e.g., McNeil v. Aguilos, 820 F.Supp. 77, 80 (S.D.N.Y.1993).
Moreover, while the standard involved in allowing a pattern or practice claim to proceed presents a question of law, it also involves issues of fact from the record. This court is in a much better position than the Second Circuit, which would not have the benefit of a completed record, to make a determination of these factual issues. 55 Although the Second Circuit clearly has the capacity to sift through the relevant facts on appeal, doing so *55 would pose an unnecessary drain on its time and energy. If every party that disputed a lower court's ruling were allowed to launch an interlocutory appeal, the judicial system might well enter a state of interlocutory paralysis; appellate courts would be drafted into repeating the work of the district courts which would be left idle waiting for their cases to be returned. Instead, the better approach is to use interlocutory appeal judiciously, implementing it only when truly necessary. And, as outlined above, this case does not present such a situation.
Maggies' argument in support of interlocutory appeal simply does not rise to the level of justifying the exceptional procedure it seeks. Maggies asserts that the motion should be granted because "in all phases of this litigation to date, Maggies' posture and actions were predicated on a reliance on the applicability of the rule announced in Golden Lender and a willingness to address the claims of the Charging Parties." (Def. Memo. at 7-8). But a party's myopic focus on the holding of a single case that, it bears noting, is only persuasive authority for this court, simply does not justify interrupting ongoing litigation. While Maggies' disappointment with the court's differing view of Golden Lender is understandable given the consequences for its case, this disappointment cannot justify granting the requested appeal.
III. CONCLUSION
For the reasons stated above, Maggies' motion for an order of interlocutory appeal concerning the denial of its motion to dismiss the plaintiff's pattern or practice claim is DENIED.
SO ORDERED.
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