Deravin v. Kerik

• Decision Date: 11 July 2003
• Docket Number: Docket No. 02-7729.
• Citation: 335 F.3d 195
• Parties: Eric H. DERAVIN, III, Plaintiff-Appellant, v. Bernard KERIK, Commissioner, and New York City Department of Corrections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

335 F.3d 195

Eric H. DERAVIN, III, Plaintiff-Appellant, v. Bernard KERIK, Commissioner, and New York City Department of Corrections, Defendants-Appellees.

Docket No. 02-7729.

United States Court of Appeals, Second Circuit.

Argued: June 27, 2003.

Decided: July 11, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory S. Lisi, Rockville Centre, NY, for Plaintiff-Appellant.

Paul L. Herzfeld, (Michael A. Cardozo, Corporation Counsel for the City of New York, on the brief, and Francis F. Caputo, of counsel), New York, NY, for Defendants-Appellees.

Before: STRAUB and POOLER, Circuit Judges, and HURD, District Judge.^*

STRAUB, Circuit Judge.

Plaintiff Eric H. Deravin, III ("Deravin"), a former employee of defendant New York City Department of Corrections ("DOC") asserts claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Deravin alleges that defendant Bernard Kerik ("Kerik"), the former Commissioner of the DOC, blocked his promotion to the position of Deputy Warden, because Deravin is African-American, and because Deravin successfully defended himself against sexual harassment charges filed by Jeanette Pinero ("Pinero"), a DOC corrections officer whom Deravin contends was romantically involved with Kerik.

The United States District Court for the Southern District of New York (Kimba M. Wood, Judge) dismissed Deravin's claims pursuant to Fed.R.Civ.P. 12(c). The District Court concluded that Deravin's race discrimination claim had not been adequately exhausted, because the claim was not reasonably related to the national origin and retaliation claims originally raised in Deravin's Equal Employment Opportunity Commission ("EEOC") complaint. As for Deravin's retaliation claim, the District Court ruled that "defending oneself against charges of discrimination" does not qualify as protected activity under Title VII. On appeal, Deravin challenges both of these rulings. Because we find that Deravin administratively exhausted his race discrimination claim, and, further, because we hold today that defending oneself against charges of discrimination by testifying in a Title VII proceeding qualifies as protected activity under 42 U.S.C. § 2000e-3(a), we vacate the judgment of the District Court and remand for further proceedings.

I.

Deravin has been an employee of the DOC for over twenty years. In October 1989, Deravin was promoted to the position of Captain and, in August 1996, Deravin was again promoted to the position of Assistant Deputy Warden. In January 1998, as soon as he became eligible, Deravin applied for but was denied further promotion to the position of Deputy Warden. Between January 1998 and April 2000, Deravin applied five more times for promotion to Deputy Warden. Although he was recommended and approved each time by the chief of his department, Deravin's successive applications for promotion were also unsuccessful. Deravin contends that Kerik deliberately blocked his promotion to Deputy Warden, and that Kerik instead promoted far less qualified applicants, including applicants with only high school diplomas or GEDs while Deravin had a Ph.D. in Criminal Justice Management as well as a Master's Degree in Public Administration.

Deravin alleges that Kerik refused to promote him for two discriminatory reasons: (1) because there was a preferential policy within the DOC to promote white employees, and Kerik did not want to promote an African-American employee to a position of authority and responsibility; and (2) because Deravin had successfully defended himself against false sexual harassment charges brought by Pinero, a DOC officer whom Kerik had purportedly dated.¹ After Deravin filed a complaint with the EEOC, he was finally promoted to the position of Deputy Warden, on his sixth try, in June 2000.

In his EEOC complaint, Deravin checked only the boxes marked "retaliation" and "national origin" as the grounds for his discrimination claim. The written description of claim also focuses on Kerik's alleged retaliation as well as on the allegedly preferential treatment given to DOC employees who are members of the Emerald Society due to their "Irish-American Status." Deravin explains: "If you look at those members who have been given promotions and preferential treatment, you will see the majority are members of the Emerald Society. Both the retaliation I have experienced as well as this ongoing preferential treatment is in violation of the Civil Rights Act of 1964."

After receiving a notice of charge from the EEOC, the DOC investigated Deravin's claims. In June 2000, the DOC issued a position statement denying Deravin's claims of discrimination. As part of its investigation, the DOC reviewed a list of all applicants for promotion to the position of Deputy Warden from January 1998 to June 2000, specifying the race of each applicant. The DOC noted at the conclusion of its analysis, that out of the successful candidates:

three (3) were male Hispanics, seven (7) were African-American males, four (4) were African-American females, four (4) were male Italians, eight (8) were male Irish, and one (1) was male Greek. There were a total of twenty-seven promotions. There is no disproportion in promotions of Irish descent as alleged by the complainant. Therefore, the allegations made by the complainant that members of the Emerald Society were given preferential treatment and promotions are unsubstantiated.

The EEOC issued Deravin a right-to-sue letter in August 2000, and Deravin filed this present action pro se in October 2000, asserting claims of race discrimination and retaliation under Title VII. Defendants subsequently moved to dismiss the complaint. The matter was referred by the District Court to Magistrate Judge Kevin N. Fox who recommended that defendants' motion for judgment on the pleadings be granted.

By written order issued on May 20, 2002, the District Court adopted the recommendation of the Magistrate Judge. The District Court agreed that Deravin had failed to administratively exhaust his race discrimination claim, because "nothing in the [EEOC] complaint suggests that defendants discriminated against plaintiff on account of his race." The District Court also rejected Deravin's explanation that the EEOC counselor who helped him fill out the complaint form erroneously failed to specify race as a basis for Deravin's discrimination claim. Although Deravin submitted two letters dated April 4, 2001 and May 7, 2001 in which he requested that the EEOC rectify the alleged administrative error, the District Court characterized the May 7, 2001 letter as "a disingenuous, post-hoc attempt to remedy the deficiencies in the administrative complaint." The District Court noted that the May 7, 2001 letter was sent months after Deravin received his right to sue letter from the EEOC as well as after defendants filed their answer notifying Deravin that they intended to argue that his claims "are barred to the extent that [the] allegations were not contained in his EEOC charge." The District Court also noted that there was no evidence that the letter had actually been sent to the EEOC,² nor was there any evidence confirming that Deravin had worked with an EEOC counselor in filing his administrative complaint.

In analyzing Deravin's retaliation claim, the District Court further agreed with the Magistrate Judge, concluding that defending oneself against charges of discrimination does not qualify as protected activity under Title VII. The District Court reasoned: "To be protected activity, plaintiff himself must have taken some action to protest or oppose illegal discrimination. Because plaintiff has not alleged in the Complaint that he engaged in any such activity, he cannot make out a claim for retaliation, even if the Court assumes all inferences in his favor."

Accordingly, the District Court dismissed Deravin's claims, and this timely appeal followed.

II.

We review de novo the dismissal of claims pursuant to a Rule 12(c) motion for judgment on the pleadings, "accepting the allegations in the amended complaint as true and drawing all reasonable inferences in favor of the [plaintiff]." Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1486, 155 L.Ed.2d 227 (2003). A complaint may be dismissed under Rule 12(c) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 135 (internal quotation marks and citation omitted). This standard applies with particular strictness where the plaintiff files a pro se complaint alleging civil rights violations. See id.; Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002). Indeed, this Court has repeatedly warned that "the pleading requirements in discrimination cases are very lenient, even de minimis." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998). It is with these principles in mind that we examine plaintiff's claims.

III.

As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC. See Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir.2001), cert. denied, 536 U.S. 922, 122 S.Ct. 2586, 153 L.Ed.2d 776 (2002); Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.2001) (per curiam). "We have recognized, however, that claims 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." Legnani, 274 F.3d at 686 (internal quotation marks and citation omitted). "A claim is considered reasonably related if 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, 251 F.3d at 359-60 (internal quotation marks...