MACLEAN v. WIPRO LIMITED

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGORY MACLEAN, RICK VALLES,

ARDESHIR PEZESHKI, JAMES GIBBS, and

RONALD HEMENWAY, individually and in their

representative capacities, Civil Action No. 20-3414 (FLW)

Plaintiffs, OPINION

v.

WIPRO LIMITED,

Defendant.

WOLFSON, Chief Judge:

Plaintiffs, Gregory MacLean (“MacLean”), Rick Valles (“Valles”), Ardeshir Pezeshki

(“Pezeshki”), James Gibbs (“Gibbs”), and Ronald Hemenway (“Hemenway”) (collectively,

“Plaintiffs”), brought this employment discrimination action under Title VII of the Civil Rights

Act of 1964 and 42 U.S.C. § 1981, on behalf of themselves and all others similarly situated, against

their former employer, Defendant Wipro Limited (“Wipro” or “Defendant”). Plaintiffs allege that

Defendant, an Indian company that provides technology and consulting services, engaged in an

intentional pattern and practice of employment discrimination against individuals who are not

South Asian1 or of Indian national origin, including hiring, promotion, evaluation, and termination

decisions. Presently before the Court is Defendant’s second Motion to Dismiss Plaintiffs’ First

Amended Complaint (“FAC”) on various grounds, including statute of limitations and failure to

state a claim under Fed. R. Civ. P. 12(b)(6).

1 According to Plaintiffs, “South Asian” refers to individuals who trace their ancestry to the Indian

subcontinent. “Indian” refers to individuals born in India, or whose ancestors came from India.

For the reasons that follow, Defendant’s Motion to Dismiss is GRANTED in part, and

DENIED in part. Specifically, Defendant’s motion is granted as to Plaintiffs’ disparate impact

claims under Title VII based on the Court’s finding that the First Amended Complaint fails to

identify a facially neutral employment practice. However, Defendant’s motion is denied as to

Plaintiff’s disparate treatment claims under Title VII and Section 1981. Further, the Court finds

that the individual Title VII disparate treatment claims asserted by Gibbs and Valles are time

barred. Finally, Defendant’s request to dismiss Plaintiffs’ claims for prospective relief is denied as

premature.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

For the purposes of this motion, the Court takes as true all allegations of the FAC.

Defendant is a multinational professional services company that provides information technology

and consulting services to customers worldwide. (FAC, ¶ 1.) Plaintiffs are former Wipro

employees who allege that Defendant engages in a pattern or practice of intentional race and

national origin discrimination in violation of Title VII and § 1981, and that the company uses

employment practices that result in a disparate impact on non-South Asians and non-Indians in

violation of Title VII. (See FAC ¶¶ 1-2, 79-92; see also 42 U.S.C. §§ 1981, 2000e–2.)

More specifically, MacLean, a “Caucasian” man of “American national origin,” was

employed by Wipro from May 2011 until February 2019. (Id. at ¶¶ 3, 28, 32.) Defendant hired

MacLean when Wipro acquired Science Application International Corporation (“SAIC”) in 2011.

(Id. at ¶ 27.) From May 2011 until December 2018, MacLean worked as a Software Analyst on a

“project servicing BP Arco,” a former client of SAIC. (Id. at ¶¶ 27-28.) When the project

concluded, MacLean was placed on the “bench,” a term defined by the FAC to mean that he was

placed in a “non-productive status,” until Defendant selected him for a position on another project.

(Id. at ¶¶ 16, 30.) MacLean claims that he “actively sought” new positions within Wipro, but

“received very few responses” to his applications. (Id. at ¶ 30.) Indeed, the FAC alleges that

MacLean expressed interest in two positions—one located in San Diego and the other in Los

Angeles—but he was never selected for the positions. (Id.) MacLean further claims that Wipro

“regularly” failed to provide him with an “appraisal,” and that he was “never promoted.” (Id. at ¶

33.) Finally, MacLean alleges that in February 2019, Wipro “falsely submitted a ‘resignation’

letter” on his behalf through Defendant’s intranet. After MacLean informed Wipro that he had not

resigned, he was reinstated. (Id. at ¶ 31.) A few days later, on February 25, 2019, Wipro terminated

MacLean’s employment. (Id. at ¶ 32.)

Valles, an “Hispanic” man of “American national origin,” was also hired when Wipro

acquired SAIC. Like MacLean, Valles allegedly worked on the BP Arco project, was benched

when the project ended, and Wipro never contacted him about opportunities within the company

while benched. (Id. at ¶¶ 38-39.) On January 31, 2015, Wipro allegedly terminated Valles’

employment. (Id. at ¶ 40.) Valles claims that he and the rest of his SAIC colleagues acquired by

Wipro (who were allegedly all non-South Asian and non-Indian) were terminated and replaced by

South Asian employees. (Id.) Valles further alleges that Wipro failed to provide him with an

appraisal and never promoted him. (Id. at ¶ 41.) Instead, Valles purportedly received only either

“very small” raises or no raise at all. (Id.) After Valles’ termination, he also allegedly applied to

several IT analyst positions within Wipro in the Los Angeles area, for which he was purportedly

“well qualified,” but Wipro never contacted him about his applications. (Id. at ¶ 43.)

Pezeshki, a “Caucasian” man of “Iranian national origin,” was hired by Wipro as a

“Practice Director of business process digitization” on July 2, 2012. (Id. at ¶¶ 5, 44-45.) While

working in Wipro’s Mountain View, California office, Pezeshki allegedly observed that Wipro’s

management and employees “had a cultural preference for hiring and working with South Asians

and Indians.” (Id. at ¶ 46.) More specifically, Pezeshki alleges the majority of individuals selected

for positions within the United States were South Asian, despite these individuals purportedly

being “poorly skilled and unqualified for the positions.” (Id.) Pezeshki further claims that he was

“regularly treated with hostility by his South Asian managers and colleagues,” and that he began

to receive low appraisal ratings after he raised concerns about Wipro’s employees not being

truthful to clients about employees’ qualifications. (Id. ¶ 47-48.) Finally, Pezeshki alleges that he

was never promoted, and that he was passed over for a promotion in favor of his immediate

manager, who was “South Asian” and purportedly “less experienced.” (Id. at ¶¶ 49, 51.) Like

MacLean and Valles, Wipro allegedly did not assist Pezeshki in finding a new position after he

was benched in March 2018. (Id. at ¶ 49.) On June 1, 2018, Wipro terminated Pezeshki’s

employment. (Id. at ¶ 50.)

Gibbs, a “Caucasian” man of “American national origin,” was hired by Wipro in 2012, as

a Global Client Partner serving Wipro’s FedEx client account, an organization with which he had

a previous sales relationship. (Id. at ¶¶ 6, 53.) While employed by Defendant, Gibbs worked in

Memphis, Tennessee. (Id. at ¶ 53.) Gibbs alleges that, despite his “strong performance,” he was

“never promoted.” (Id. at ¶ 56.) Indeed, the FAC alleges that Gibbs attempted to discuss the

promotion process with his boss, Devprasad Rambhatla, Wipro’s Vice President of Travel,

Transportation & Hospitality, but neither Rambhatla, nor others at Wipro, would discuss the

promotion process or the possibility of promotion. (Id.) Gibbs further alleges that Rambhatla

“quadrupled [his] sales and margin quotas to levels that were unrealistic,” was “rude and

condescending to [him],” and “forc[ed] him to work 70-80 hours each week.” (Id. at ¶ 57.) In 2015,

Gibbs claims that he became aware that Wipro was advertising his position on LinkedIn, and

“understood that Wipro was looking for a South Asian of Indian descent” to fill his position. (Id.

at ¶ 58.) As a result, Gibbs alleges that he “decided to quit rather than be fired by Wipro.” (Id.) In

September 2015, Gibbs resigned, and he was allegedly replaced by Anand Shanmugham, “a South

Asian of Indian descent,” who was then “promptly” promoted. (Id.) At the time of his resignation,

Gibbs claims that he was the only non-South Asian who reported directly to Rambhatla, that each

of the other “seven or eight non-South individuals” who had previously reported to Rambhatla had

been terminated or had quit, and that each of those positions was replaced by an employee of

“South Asian of Indian descent.” (Id. at ¶ 59.)

Hemenway, a “Caucasian” man of “American national origin,” began working at Wipro as

a Program Director in September 2019. (Id. at ¶¶ 7, 63.) After Hemenway was hired, he was

assigned to a project with Capital One located in Richmond, Virginia. (Id. at ¶ 63.) While working

on the Capital One project, Hemenway alleges that he observed that many of his South Asian

colleagues “were unqualified for the work they were performing.” (Id. at ¶ 65.) In addition, he

claims that he was given “menial work,” despite possessing a substantial amount of experience,

and that his managers would “sometimes exclude [him] from workplace discussions by speaking

in a South Asian dialect he could not understand.” (Id. at ¶ 66.) In late November or early

December 2019, Hemenway alleges that he was removed from the Capital One project and

benched. (Id. at ¶ 67.) Hemenway further alleges that he actively sought a new position within

Wipro, but he was not selected for any positions. (Id.) On February 26, 2020, Defendant terminated

Hemenway’s employment with the company. (Id.) In short, Hemenway claims that while he was

employed at Wipro, Defendant failed to provide him with “a performance evaluation” and “never

promoted” him. (Id. ¶ 68.) Since his termination, recruiters have allegedly contacted Hemenway

“regarding opportunities for employment with Wipro,” and although he “was interested and asked

to be considered,” Wipro “never re-hired him.” (Id. at ¶ 69.)

Together, Plaintiffs allege that Wipro engages in four distinct discriminatory employment

practices that demonstrate a preference for South Asians and Indians. (Id. at ¶¶ 17-24.) First, Wipro

allegedly submits “visa petitions for more positions than actually exist” in the United States.2 (Id.

at ¶ 19.) Plaintiffs claim that although individuals already located in the United States, and non-

South Asian foreign individuals who are “visa-ready,” applied for open positions located in the

United States, Defendant’s South Asian and Indian visa-ready individuals are given preference for

these positions. (Id. at ¶ 20.) Similarly, “non-South Asian and non-Indian individuals are often

displaced from their current positions in favor of South Asian and Indian visa-ready individuals.”

(Id.) Second, Plaintiffs allege that Wipro, both through its internal recruiting department and third-

party recruiting companies, gives preference to South Asian and Indian applicants located in the

United States over non-South Asian and non-Indian applicants. (Id. at ¶ 21.) Third, Plaintiffs allege

that “because of its discriminatory preference for South Asians and Indians, Wipro promotes South

Asians and Indians at disproportionately high rates compared to non-South Asians.” (Id. at ¶ 22.)

Critical to receiving a promotion, Wipro employees must receive a “favorable appraisal score” and

“must be nominated for a promotion by their immediate manager and have that nomination

approved by their manager’s manager.” (Id.) Plaintiffs claim that some non-South Asian and non-

Indian employees never receive appraisals, and those that do receive appraisals, are given lower

scores compared to South Asian and Indian employees. (Id.) Fourth, Plaintiffs allege that Wipro

benches and terminates non-South Asians and non-Indians at disproportionately higher rates

compared to South Asians and Indians. (Id. at ¶ 23.)

2 For example, the FAC alleges that although Defendant employs less than 15,000 individuals in the

United States, Defendant received 5,968 new visas in 2015 and 6,831 new visas in 2016. (FAC at ¶ 19.)

Plaintiffs also seek to represent a class of applicants, employees, and former employees

who were subject to Wipro’s alleged discriminatory practices. (Id. at ¶¶ 70-78.) In that regard,

Plaintiffs bring this action on behalf of the following three classes: 1) “all persons who are not of

South Asian race or Indian national origin who applied for positions with Wipro in the United

States and were not selected for the position,” 2) “all persons who are not of South Asian race or

Indian national origin who were employed by Wipro in the United States for the minimum amount

of time necessary to be eligible for a promotion pursuant to Wipro’s policies and/or practices, and

were not promoted,” and 3) “all persons who are not of South Asian race or Indian national origin

who were employed by Wipro in the United States and were terminated.” (Id. at ¶ 70.)

The FAC asserts three causes of action on behalf of Plaintiffs and the putative classes: 1)

disparate treatment on the basis of race in violation of 42 U.S.C. § 1981; 2) disparate treatment on

the basis of race and national origin in violation of Title VII; and 3) disparate impact on the basis

of race and national origin in violation of Title VII. (Id. at ¶¶ 79-92.) Plaintiffs seek compensatory

and punitive damages, a declaratory judgment, and a permanent injunction.

B. Procedural History

On December 1, 2017, two former Wipro employees, James Phillips and Robert Saemian

(“Phillips Plaintiffs”), filed a putative class action (“Phillips Action”) against Defendant in the

United States District Court for the Northern District of California, alleging that Wipro

discriminated against them because they are neither South Asian nor Indian. See Phillips, No. 4:18-

cv-00821, ECF. No. 1. Substantially similar to the FAC, the Complaint in the Phillips Action

asserts claims of disparate treatment on the basis of race in violation of § 1981, disparate treatment

on the basis of race and national origin in violation of Title VII, and disparate impact on the basis

of race and national origin in violation of Title VII. On March 14, 2018, the Phillips Action was

transferred to the United States District for the Southern District of Texas. Id. at ECF No. 25.

On November 26, 2019, the Phillips Plaintiffs moved for leave to amend to add MacLean,

Valles, Pezeshki, and Gibbs as named plaintiffs. Id. at ECF No. 117. The district court, there,

denied the motion on the ground that adding four additional named plaintiffs “so late in the

litigation” would “substantially expand the scope of discovery” and “unduly prejudice Defendant,

when ultimately the claims of the Proposed Plaintiffs would be included in any class that the

Named Plaintiffs seek to certify.” See Phillips, No. 4:18-cv-00821, ECF No. 134, at 2–3.

After the Texas court’s denial of their motion to amend, Plaintiffs filed charges with the

Equal Employment Opportunity Commission (EEOC) in February and March 2020. (See Hart

Decl., Ex. B (MacLean EEOC charge, filed February 11, 2020); Hart Decl., Ex. C (Valles EEOC

charge, filed February 21, 2020); Hart Decl., Ex. D (Pezeshki EEOC charge, filed February 22,

2020); Hart Decl., Ex. E (Gibbs EEOC charge, filed February 13, 2020); Hart Decl., Ex. F

(Hemenway EEOC charge, filed March 24, 2020).) Plaintiffs’ EEOC charges allege that Wipro

engages in the pattern of discrimination referenced in the instant Complaint, including

“employment practices” that purportedly “have a disparate impact on non-South Asian applicants

and employees.” (Hart Decl., Exs. B-F at ¶¶ 10–16.) Plaintiffs received right-to-sue letters from

the EEOC.

On March 30, 2020, Plaintiffs, represented by the same counsel as the plaintiffs in the

Phillips Action, filed the instant Complaint in this Court, and amended their Complaint on June 1,

2020. (ECF Nos. 1 and 6.) The FAC adds a Title VII claim on behalf of Hemenway, who received

a right-to-sue letter from the EEOC on May 19, 2020.

On June 11, 2020, Defendant moved to dismiss Plaintiffs’ FAC, or in the alternative, to

stay and to strike class allegations. ECF No. 11. Defendant sought to dismiss the FAC on the

grounds that it was duplicative of the first-filed Phillips action, Plaintiffs’ claims were time-barred,

Plaintiffs failed to exhaust administrative remedies, and Plaintiffs failed to state a claim under Title

VII or Section 1981. Defendant requested, in the alternative, a stay pending the resolution of the

first-filed Phillips action and dismissal of class allegations seeking prospective and injunctive

relief for lack of standing.

On December 4, 2020, this Court granted Defendant’s motion to stay Plaintiffs’ claims

pending a class certification decision in Phillips. ECF No. 17. The Court did not consider the

substantive merits of Defendant’s arguments for dismissal of Plaintiffs’ claims. Instead, the Court

instructed that “[i]n the event class certification is denied” in Phillips, Defendant will “be permitted

to renew its arguments for dismissal, including violation of the statute of limitations and failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6).” Id. at 22 & n.8.

On March 14, 2022, the Phillips court declined to certify a class. See Phillips, No. 4:18-

00821, ECF No. 253. On April 7, 2022, this Court lifted the stay of this action and ordered a

briefing schedule for Defendant’s instant motion to dismiss. ECF No. 21.

II. LEGAL STANDARD

Under Rule 12(b)(6), a court may dismiss an action if a plaintiff fails to state a claim upon

which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a Rule 12(b)(6) motion,

courts “accept all factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff

may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). A complaint survives a motion

to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007).

To determine whether a complaint is plausible, courts in the Third Circuit conduct a three-

step analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court

“takes note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at

675). Second, the court identifies allegations that, “because they are no more than conclusions, are

not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 679). Third, “where

there are well-pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.” Santiago, 629 F.3d at 131 (quoting

Iqbal, 556 U.S. at 680). This last step is a “context-specific task that requires the [ ] court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

Generally, the court may not “consider matters extraneous to the pleadings” when

considering a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426

(3d Cir. 1997) (citation omitted). However, the court may consider (1) exhibits attached to the

complaint, (2) matters of public record, and all “document[s] integral to or explicitly relied upon

in the complaint” without converting the motion to dismiss into one for summary judgment.

Angstadt v. Midd–West Sch. Dist., 377 F.3d at 342 (quoting U.S. Express Lines, Ltd. v. Higgins,

281 F.3d 383, 388 (3d Cir. 2002)).

III. DISCUSSION

On the instant motion, Defendant argues that (1) Plaintiffs’ disparate impact and disparate

treatment claims under Title VII and Section 1981 should be dismissed for failure to state claim,

(2) that, independent from those legal deficiencies, certain Title VII and Section 1981 claims

should be dismissed as untimely, and (3) Plaintiffs lack standing to pursue prospective relief. I will

address each of Defendant’s arguments, in turn.

A. Failure to State a Claim

The FAC alleges both disparate impact in violation of Title VII and disparate treatment in

violation of Title VII and Section 1981. With respect to Plaintiffs’ disparate impact claims, Wipro

contends that Plaintiffs failed to exhaust their administrative remedies, and even if they did exhaust

them, they failed to plead the existence of a specific, facially neutral employment practice to

support a disparate impact claim under Title VII. Second, Defendant argues that Plaintiffs’

disparate treatment claims fail under both Section 1981 and Title VII because they have not

plausibly alleged that race or national origin was either a “but for” cause or a “motivating factor”

in any adverse employment action. Rather, in this connection, Defendant maintains that

“[d]iscrimination is no more plausible than other, nondiscriminatory reasons” for the purported

adverse employment actions encountered by Plaintiffs, “such as sub-par performance, lack of

qualifications for a particular position, or the existence of another more qualified candidate.”

Under Title VII, a disparate impact violation arises when an employer is shown to have

used a specific employment practice, neutral on its face, but causing a substantial adverse impact

on a protected group and which cannot be justified as serving a legitimate business goal of the

employer. NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011); Metal

Service Co., 892 F.2d at 346 (3d Cir. 1990); 42 U.S.C. § 2000e-2(k)(1)(A)(i). “Title VII is meant

to ensure that workplaces are free from discrimination and that employment decisions are made

based on qualifications rather than extraneous factors such as race and color.” United States v.

State of New Jersey, No. 10-91, 2012 U.S. Dist. LEXIS 113175, at *25-26, 2012 WL 3265905

(D.N.J. June 12, 2012). “Unlike the disparate treatment theory of liability, a claim of disparate

impact does not require proof of discriminatory motive.” Crawford, 103 F. Supp. 3d at 606.

In order to state a claim for disparate impact, a plaintiff is required to identify the specific

policy at issue. Newark Branch, NAACP v. Twp. of Harrison, 940 F.2d 792, 798 (3d Cir. 1991);

see N. Hudson Reg’l Fire & Rescue, 665 F.3d at 476; Williams v. Compassionate Care Hospice,

No. 16-2095, 2016 U.S. Dist. LEXIS 101669, at *11, 2016 WL 4149987 (D.N.J. Aug. 3, 2016).

Thus, a plaintiff fails to state a disparate impact claim if he or she alleges “discrete incidents” that

resulted in discrimination as opposed to “specific polices.” See Graves v. Ancora Psychiatric

Hosp., No. 10-369, 2012 U.S. Dist. LEXIS 175128, at *13, 2012 WL 6153428 (D.N.J. Dec. 10,

2012) (concluding that, although the plaintiff referenced “discrete incidents, she mention[ed] no

specific policies that resulted in discrimination against members of a protected class. The failure

to do so is fatal to her disparate impact claim.”).

On the other hand, “[a] disparate treatment violation is made out when an individual of a

protected group is shown to have been singled out and treated less favorably than others similarly

situated on the basis of an impermissible criterion under Title VII.” EEOC v. Metal Service Co.,

892 F.2d 341, 347 (3d Cir. 1990). Importantly, a plaintiff must allege that the employer acted with

a discriminatory intent, which can either be shown through direct evidence or indirect or

circumstantial evidence.3 Id. Stated differently, the plaintiff must allege facts and circumstances

“to create an inference that an employment decision was based on a discriminatory criterion illegal

under the Act.” Id. at 348 (internal quotation marks and citation omitted); see Crawford v. Verizon

3 Similar to a claim for employment discrimination under Title VII, on a motion for summary

judgment, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the

adverse employment action if the plaintiff indirectly shows discriminatory intent. Metal Services Co., 892

F.2d at 347; see McDonnell Douglas Corp., 411 U.S. at 792. However, such burden shifting is not

appropriate on a motion to dismiss.

Pa., Inc., 103 F. Supp. 3d 597, 606 (E.D. Pa. 2015). However, the Third Circuit noted that “courts

must be sensitive to the myriad of ways such an inference can be created.” Metal Service Co., 892

F.2d at 347. Similarly, to establish a discrimination claim under Section 1981, “a plaintiff must

show (1) that he belongs to a racial minority; (2) an intent to discriminate on the basis of race by

the defendant; and (3) discrimination concerning one or more of the activities enumerated in §

1981.” Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 797 (3d Cir. 2010).

1. Disparate Impact Under Title VII

As a threshold matter, Defendant argues that Plaintiffs failed to exhaust their administrative

remedies. Failure to exhaust administrative remedies is a defense that may be raised on a motion

to dismiss. Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). Indeed, “[a] complaint does

not state a claim upon which relief may be granted unless it asserts the satisfaction of the

precondition to suit specified by Title VII: prior submission of the claim to the [Equal Employment

Opportunity Commission (“EEOC”) ] for conciliation or resolution.” Robinson v. Dalton, 107 F.3d

1018, 1022 (3d Cir. 1997) (quotation omitted). To properly exhaust administrative remedies under

Title VII, a plaintiff must file a charge with the EEOC within 180 days after the alleged unlawful

conduct occurred. 42 U.S.C. § 2000e–5(e)(1). If the plaintiff lives in a deferral state, such as New

Jersey, and a charge is also filed with a state or local agency, this deadline is extended to 300 days.

Id.; see also Cardenas v. Massey, 269 F.3d 251, 255 n.2 (3d Cir. 2001). Once a charge is filed with

the EEOC, the agency has 180 days to investigate the allegations and notify the employee of its

conclusions. 42 U.S.C. § 2000e–5(f)(1). If the EEOC does not respond within 180 days, or issues

a “right–to-sue” letter to the employee before the 180 days has expired, the employee has 90 days

to file a lawsuit. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir.

2001). “The purpose of this administrative exhaustion requirement is to put the EEOC on notice

of the plaintiff's claims and afford it the opportunity to settle disputes through conference,

conciliation, and persuasion, avoiding unnecessary action in court.” Webb v. City of Phila., 562

F.3d 256, 262 (3d Cir. 2009) (citations omitted). A plaintiff cannot “bypass the administrative

process.” Id. (citation omitted). “[T]he parameters of the civil action ... are defined by the scope of

the EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.” Id. (citation omitted). “Once a charge of some sort is filed with the EEOC, ... the

scope of a resulting private civil action in the district court is ‘defined by the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge of discrimination....’ ”

Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson

Bronze Co., 541 F.2d 394, 398–99 (3d Cir. 1976)). EEOC charges are given a “fairly liberal

construction.” Schouten v. CSX Transp., Inc., 58 F.Supp.2d 614, 616 (E.D. Pa. 1999).

Here, Wipro argues that Plaintiffs failed to exhaust their administrative remedies because

they identified only a “generalized policy,” not a “specific employment practice” that supposedly

causes a disparate impact. (Def. Mov. Br., 11.) Specifically, Defendant claims that Plaintiffs’

EEOC charges cite the same alleged practices that they contend caused a “disparate impact on

non-South Asian applicants and employees”: (1) “relying on visa workers to staff U.S. positions,”

(2) “employee-allocation practices,” (3) “appraisal and promotion processes,” (4) “benching and

termination practices,” and (5) “hiring and staffing decision-making process, as a whole.”

However, according to Wipro, these alleged practices are either “too generic to properly apprise

the EEOC of a disparate impact claim, or else do not constitute a ‘neutral policy.’” Defendant

further emphasizes that “[c]hallenges to Wipro’s ‘hiring and staffing decision-making process, as

a whole’ and ‘employee-allocation practices,’ are exactly the kind of ‘generalized’ policies or

practices that fail to apprise the EEOC and the employer of the basis for the claim and thus fall

short of the exhaustion requirement.” (Id. at 11-12.) As to the remaining practices alleged by

Plaintiffs, including Wipro’s hiring, promotion, and termination policies, Defendant argues that

these also fail to satisfy the exhaustion requirement because they are “rooted in allegations of

explicit preferences given to a specific group—individuals who are South Asian and Indian.” (Id.

at 12.) In other words, Defendant submits that there is nothing “intrinsic to these practices

themselves that cause non-South Asians or non-Indians to be hired or promoted less often, or

terminated more often, than Indians or South Asians.” Therefore, Defendant argues that these

alleged practices sound in disparate treatment and cannot form the basis for a disparate impact

claim.

I find, however, that Defendant demands more than what the law requires. Wipro cites no

authority in support of its claim that a plaintiff’s charge must allege the elements of a prima facie

case in order to exhaust administrative remedies. Rupert v. PPG Indus., Inc., No. 07-705, 2009

WL 10689650, at *15 (W.D. Pa. Feb. 5, 2009) (rejecting a defendant’s argument that the plaintiffs

failed to exhaust administrative remedies because their charges lacked reference to any facially

neutral policy, noting that a charge need not allege the elements of a prima facie case). Indeed,

“such a rule could not be reconciled with the broader rule followed in this circuit that exhaustion

is determined by the scope of the EEOC investigation that would reasonably be expected to grow

out of the charge.” Id. Moreover, I find that the Title VII claims asserted in Plaintiffs’ FAC are

fairly within the scope of the EEOC charge. Indeed, Defendant admits, and the Court’s

independent review confirms, that Plaintiffs’ EEOC charges cite the same alleged practices that

they contend in this lawsuit caused a disparate impact on non-South Asian applicants and

employees, namely: (1) “relying on visa workers to staff U.S. positions,” (2) “employee-allocation

practices,” (3) “appraisal and promotion processes,” (4) “benching and termination practices,” and

(5) “hiring and staffing decision-making process, as a whole.” Accordingly, it is undisputed that

the language of Plaintiffs’ EEOC charges is sufficient to encompass an EEOC investigation into

the disparate impact claims asserted in this civil action.

Second, Defendant argues that even if Plaintiffs properly exhausted their administrative

remedies, they cannot state a claim for disparate impact under Title VII. In this regard, Defendant

again submits that the FAC does not allege a specific, facially neutral employment practice.

Moreover, Wipro argues that even if the allegations of the FAC do identify a specific, facially

neutral employment practice and sound in disparate impact, Plaintiffs “fail to connect the dots to

show how these alleged practices caused disparities in Wipro’s workforce, nor have they shown

that these practices had an impact on them specifically.” In response, Plaintiffs highlight

allegations of the FAC that Wipro’s hiring and project staffing process results in a disparate impact

as a whole. In addition, they point to four specific employment practices that have a disparate

impact on non-South Asians and non-Indians, which include: “(1) Wipro’s practice of applying

for large numbers U.S. work visas in excess of its staffing needs to maximize the number of visas

it receives each year; (2) its practice of preferring South Asians (including visa holders) over

internal and external candidates in staffing; (3) its appraisal and promotion practice which results

in non-South Asian and non-Indians not nominated for promotions and consistently receiving

lower appraisal scores; and (4) Wipro’s policy of terminating employees who remain on the bench

for more than approximately four weeks.”

Here, I agree with Defendant’s position that because Plaintiffs fail to allege a facially

neutral employment practice, their claims sound in disparate treatment, as opposed to disparate

impact. To better illustrate the Court’s findings, I find a brief survey of disparate impact case law

helpful. Examples of policies or practices cited in cases where disparate impact claims have been

successful include high school diploma requirements, see Griggs v. Duke Power Co., 401 U.S. 424

(1971), written aptitude tests, see Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975), written

test of verbal skills, see Washington v. Davis, 426 U.S. 229 (1976), or height and weight

requirements, see Dothard v. Rawlinson, 433 U.S. 321 (1988). Unlike here, each of these cases

share a common thread—the plaintiffs cited a facially neutral policy or practice that, when applied,

had a discriminatory impact on a protected group. For example, in Dothard, the Supreme Court

considered whether height and weight restrictions on prison guards in Alabama had a disparate

impact on women. 433 U.S. at 323. There, the plaintiff’s application for employment as a prison

guard in Alabama was rejected because she failed to meet the minimum 120-pound weight

requirement of an Alabama statute, which also established a height minimum of 5 feet 2 inches.

Id. at 323-24. Affirming the district court’s ruling that Title VII prohibited application of the

statutory height and weight requirements under a disparate impact theory of liability, the Court

found that the “gist of the claim that the statutory height and weight requirements discriminate

against women does not involve an assertion of purposeful discriminatory motive.” Id. at 328.

Rather, the Court agreed that “these facially neutral qualification standards work in fact

disproportionately to exclude women from eligibility for employment by the Alabama Board of

Corrections.” Id. at 329.

Instead, as discussed in detail infra, I find the allegations of the FAC more akin to those in

Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996), Rauceo v. Philadelphia

Gas Works, No. 19-4279, 2020 WL 550613, at *3 (E.D. Pa. Feb. 3, 2020), and Chavarria v.

Philadelphia Gas Works, No. 19-4428, 2020 WL 529892, at *3 (E.D. Pa. Feb. 3, 2020). In Healey,

the plaintiff appealed the order of the district court granting the defendant’s motion for summary

judgment on her sex discrimination claim brought under Title VII. 78 F.3d at 130. Affirming the

district court’s decision, the Third Circuit also noted that the trial court did not address the

plaintiff’s disparate impact claim under Title VII in dismissing her complaint. Id. at 131. In that

regard, the Third Circuit explained that, like here, the plaintiff asserted that both disparate

treatment and disparate impact theories were applicable to her case. Id. However, the Third Circuit

disagreed as to the applicability of the disparate impact claim, because the policy alleged by the

plaintiff was facially discriminatory. Id. Specifically, the plaintiff alleged that the defendant had a

policy of scheduling both males and females to all shifts, but it considered sex in making its

assignments. Id. According to the plaintiff, the defendant assigned her to the night shift because it

needed a female child care specialist on that shift. Id. Thus, the Third Circuit emphasized that

because the defendant “uses sex as an explicit factor in assigning its staff to the various shifts, and

[the plaintiff] was assigned to the night shift because of her sex,” the defendant’s staffing policy

was “facially discriminatory, rather than facially neutral.” Id.

Similarly, in Rauceo and Chavarria, the court also dismissed portions of the plaintiffs’

disparate impact claims based on findings that the policies or practices alleged in the complaints

were deliberately discriminatory. In Rauceo, the plaintiff’s disparate impact claim cited three

different policies and practices—promotions, scheduling work, and scheduling overtime. No. 19-

4279, 2020 WL 550613, at *3. As to the defendant’s overtime policy, the plaintiff alleged that it

“required even scheduling of overtime to be done [on] an objective standard scheduling.” Id.

However, according to the plaintiff, the defendant “disregarded the policy by not scheduling any

African American, brown, or black supervisors for overtime[.]” Id. The district court, however,

found that the plaintiff failed to state a disparate impact claim with respect to the overtime policy

because, according to the allegations, the defendant “purportedly applied the rule in a deliberately

discriminatory fashion.” Id. Thus, because the defendant “allegedly only scheduled overtime for

nonprotected class members in violation of the policy,” the court found that the plaintiff’s claim

is “one of intentional discrimination—not the result of adverse effects from a facially neutral

policy.” Id. In Chavarria, the plaintiff’s disparate impact claim relied, in part, on a “no electronics

policy” purportedly enforced by the defendant. No. 19-4428, 2020 WL 529892, at *3. Specifically,

the plaintiff averred that the defendant instituted a personnel policy that prohibited employees from

using personal electronics devices at a particular jobsite. Id. But, according to the plaintiff, the

defendant only imposed the policy against black and brown employees. Id. Based on these

allegations, the district court found that the plaintiff had failed to state a disparate impact claim

because management purportedly applied the rule in a “deliberately discriminatory fashion.” Id.

Indeed, the district court noted that the fact the defendant allegedly “only enforced the rule against

protected class members indicates that [the plaintiff’s] claim is one of intentional discrimination—

not the result of adverse effects from a facially neutral policy.” Id.

While the Court does not find the practices to lack specificity or to be too “generic,”

Plaintiffs do allege that, with those policies, Wipro intentionally discriminated against non-South

Asians and non-Indians.

Visa Policy

For example, as to work visas, the FAC alleges that “[t]o fulfill its employment preference

for South Asians and Indians, Wipro seeks to maximize the number of visas it receives each year

from the federal government.” (Id. at ¶ 19) (emphasis added.) According to Plaintiffs, Wipro has

secured visas for “far more individuals than it actually has a present need for.” (Id.) Once these

visas are obtained, Plaintiffs claim that “[a]ll, or substantially all, of the individuals for whom

Wipro secures visas are South Asian and Indian.” (Id. at ¶ 20.) According to Plaintiffs, “[w]hile

both individuals already located in the U.S. and foreign individuals who are visa-ready are

considered for open positions in the U.S., Wipro’s South Asian and Indian visa ready individuals

are given preference for these positions.” (Id.) (emphasis added.) Thus, Plaintiff avers that

“Wipro’s practice of relying on visa workers to staff U.S. positions results in available positions

overwhelmingly going to visa holding South Asian and Indian individuals, to the exclusion of non-

South Asian and non-Indian candidates.” (Id. at ¶ 24.)

According to Plaintiff’s own allegations, Wipro’s visa policy intentionally secures visas

for South Asian and Indian individuals; thereby deliberately discriminating against non-South

Asians and non-Indians. To that end, the Court’s conclusion might be different had the FAC

alleged simply that Wipro engaged in a practice of maximizing its visas to increase its workforce,

and this practice resulted in more South Asians and Indians obtaining visas and working at the

company. However, that is not what Plaintiffs have alleged. Rather, they alleged that because of

this discriminatory practice, “non-South Asian and non-Indian individuals are often displaced from

their current positions in favor of South Asian and Indian visa-ready individuals.” (FAC, ¶ 20.)

This is not facially neutral, but intentional discrimination.

Employee Allocation and Hiring Practices

Similarly, as to Wipro’s hiring and employee allocation practices, the FAC alleges that

“Wipro gives preference to South Asian and Indian applicants located in the U.S. over non-South

Asian and non-Indian applicants.” (Id. at ¶ 21) (emphasis added.) As such, I find that Plaintiffs

again allege that Wipro’s hiring practices deliberately target South Asian and Indian candidates to

the detriment of non-South Asians and non-Indians. Indeed, Plaintiffs claim that Wipro’s internal

recruiting department and third-party recruiters locate and recruit South Asian and Indian

candidates, and that “as a result, on information and belief, Wipro hires a disproportionately high

percentage of South Asians and Indians within the United States that far exceeds the proportion of

those individuals in the relevant labor market.” (Id. at ¶¶ 21, 24.) These affirmative actions suggest

a conscious pattern and practice to intentionally discriminate—not a facially neutral policy that

innocently, and without a discriminatory motive, unfairly impacts a protected group.

Promotion Practices

Third, Plaintiffs allege that Wipro’s employee-promotion practice elevates South Asians

and Indians at disproportionately high rates. (Id. at ¶ 22.) According to Plaintiffs, Wipro employees

must receive a favorable appraisal score and must be nominated for a promotion by their immediate

manager and have that nomination approved by their “manager’s manager” in order to receive a

promotion. (Id.) The appraisals include a rating of either outstanding, exceeds expectations, highly

valued contribution, more contribution expected, or unsatisfactory contribution. Critically,

however, for purposes of this motion, Plaintiffs claim that “[b]ecause of Wipro’s preference for

South Asians and Indians, these individuals are regularly awarded higher appraisal scores,

compared to their non-South Asian and non-Indian colleagues,” and “some non-South Asian and

non-Indian individuals are never given appraisal scores at all.” (Id.) (emphasis added.) The

inference drawn from these allegations is clearly that Wipro favors South Asian and Indian

employees, and therefore, the company practice is to ensure these individuals receive higher scores

and better evaluations. To be clear, this is not a case of a purportedly flawed appraisal system that

happens to benefit South Asians and Indians more than non-South Asians and non-Indians. Rather,

Plaintiffs allege that Wipro’s practice is to purposely give South Asians and Indians more

favorable scores. Again, these allegations sound in disparate treatment, not disparate impact.

Termination and Benching Practices

Finally, Plaintiffs allege that “because of its discriminatory preference for South Asians

and Indians,” Wipro terminates non-South Asians and non-Indians at disproportionately high rates,

compared to South Asians and Indians. (Id. at ¶ 23.) To this end, the FAC emphasizes Wipro’s

purported “preference for filling positions with South Asian and Indian visa workers and South

Asian and Indian individuals hired within the U.S.,” which results in non-South Asian and non-

Indian employees being relegated to the bench and/or unable to locate new assignments with

disproportionately greater frequency. (Id.) (emphasis added.) Again, the inference drawn from

these allegations is that in order to employ more South Asian and Indian workers, Wipro

purportedly intentionally benches non-South Asians and Indians. Once these non-South Asian and

Indian employees are benched, they are then either terminated or, like Gibbs, leave the company

after a period of prolonged inactivity.

When accepting all factual allegations in the FAC as true, and construing them in a light

most favorable to Plaintiffs, the Court finds that Plaintiffs fail to state a claim for disparate impact

under Title VII because the allegations sound more in disparate treatment, which is discussed infra.

Put simply, Plaintiffs have identified four allegedly discriminatory employment practices, but none

of those practices are facially neutral. Rather, the allegations suggest that these practices have been

enacted and enforced by Wipro to carry out the company’s preference for South Asian and Indian

workers. These deliberate and intentional discriminatory policies and practices do not amount to

the types of disparate impact that the Supreme Court has sanctioned. Williams v. Twp. of

Lakewood, 17-11401, 2020 WL 7391009, at *18 (D.N.J. Dec. 15, 2020) (dismissing a plaintiff’s

disparate impact claim because the plaintiff asserted that the defendant maintained a facially

discriminatory practice in its treatment of Latina employees); Robbins v. Camden City Bd. of

Educ., 105 F.R.D. 49, 56 (D.N.J. 1985) (dismissing a plaintiff’s disparate impact claim based on

a failure to allege a facially neutral policy or practice). Indeed, disparate impact discrimination is

a “brand of ‘unintentional discrimination,’ whereby ‘employment practices that are facially neutral

in their treatment of different groups but that in fact fall more harshly on one group than another’

are prohibited.” United States v. Pennsylvania, 110 F. Supp. 3d 544, 549 (M.D. Pa. 2015) (citing

Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). While there is no

debate that Plaintiffs are entitled to proceed under alternative theories of liability, the allegations

“must be sufficient to support both theories.” Zawacki v. Realogy Corp., 628 F. Supp. 2d 274, 281

(D. Conn. 2009) (dismissing disparate impact claim based on the plaintiff’s failure to allege a

facially neutral practice or policy). Accordingly, Defendant’s motion to dismiss is granted as to

Plaintiffs’ disparate impact claim arising under Title VII.

2. Disparate Treatment Under Title VII or Section 1981

Next, Defendant argues that Plaintiffs’ disparate treatment claims under Title VII and

Section 1981 are deficient. According to Defendant, Plaintiffs claim they were subjected to three

categories of adverse employment actions: (1) Wipro’s failure to hire and rehire them, (2) failure

to promote them, and (3) termination of their employment. However, Defendant contends that

when the FAC is “stripped of legal conclusions disguised as facts,” Plaintiffs fail to allege

sufficient facts to support an inference that race or national origin was a “motivating factor”—let

alone the “but for” cause—of any of these adverse employment actions.

In response, Plaintiffs claim that they have asserted “pattern or practice” claims, which are

governed by the framework set forth in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336

(1977). According to Plaintiffs, under this framework, their disparate treatment claims are

adjudicated in two phases. In Phase I, Plaintiffs claim that they have the burden to prove that

“racial discrimination was [Wipro’s] standard operating procedure[,] the regular rather than the

unusual practice.” (Pls. Opp., 13) (citing Int’l Bhd. of Teamsters, 431 U.S. at 336, 361 n.46). If

Plaintiffs prevail in Phase I, by establishing a pattern and practice of discrimination, Plaintiffs

submit that in Phase II, Defendant becomes a “proved wrongdoer” and each class-member “need

only show that [he or she] unsuccessfully applied for a job[, was not promoted, or was terminated]

and therefore was a potential victim of the proved discrimination.” (Pls. Opp., 13-14.) According

to Plaintiffs, the burden in Phase II shifts to the defendant employer “to demonstrate that the

individual applicant [or employee] was denied an employment opportunity for lawful reasons.” Id.

Therefore, to plead a pattern or practice claim, Plaintiffs maintain that they need only “sufficiently

allege that ‘discrimination was the company’s standard operating procedure-the regular rather than

the unusual practice.’” (Pls. Opp., 14) (citing United States v. Nobel Learning Cmtys., Inc., 676 F.

Supp. 2d 379, 383 (E.D. Pa. 2009)). Applying that framework, Plaintiffs argue that they have

sufficiently alleged that Wipro engaged in a pattern and practice of intentional racial and national

origin discrimination against non-South Asians and non-Indians in hiring, promotion, staffing, and

termination decisions. (Pls. Opp., 14) (citing FAC, ¶¶ 1, 17-23, 81, 86.)

As a threshold matter, “pattern or practice” is not an independent cause of action, but

merely an “evidentiary framework” for proving a discrimination claim. Hohider v. United Parcel

Serv., Inc., 574 F.3d 169, 185 (3d Cir. 2009). Accordingly, the statutory requirements of Title VII

and Section 1981, “not the Teamsters evidentiary framework,” “control[] the substantive

assessment of what elements must be determined to prove” a disparate treatment claim. Id.

That said, the Court finds that Plaintiffs have sufficiently alleged disparate treatment under

Title VII and Section 1981. First, Caucasian plaintiffs, like MacLean, Pezeshki, Gibbs, and

Hemenway, subjected to reverse discrimination may invoke Section 1981 and Title VII against

defendants for discriminatory treatment on the basis of race.4 McDonald v. Santa Fe Trail Transp.

Co., 427 U.S. 273, 286-87 (1976); Hicks v. ABT Assocs., Inc., 572 F.2d 960, 967 (3d Cir. 1978).

4 Plaintiff Valles is also a member of a protected class, as he is Hispanic. Tucker v. Merck & Co.,

No..03-5015, 2004 WL 1368823, at *4 (E.D. Pa. June 17, 2004), aff'd, 131 Fed. Appx. 852 (3d Cir. 2005).

Next, Plaintiffs rely on the same four employment practices discussed at length above, and, as

discussed previously, those allegations suggest that Wipro acted with discriminatory intent in

denying opportunities to non-South Asian and Indian employees and prospective employees.

Further, while Defendant challenges whether the FAC contains sufficient facts to support an

inference that race or national origin was a “motivating factor”—let alone the “but for” cause—of

any of these adverse employment actions, I disagree with that position. Each of the four individual

plaintiffs allege adverse employment decisions based on a discriminatory criterion illegal under

Title VII and Section 1981. Indeed, MacLean, Valles, Pezeshki, Gibbs, and Hemenway allege that

they were either terminated, benched, or not promoted.5 And, while the FAC may not expressly

allege that Plaintiffs were terminated, benched, or not promoted because of their race, I find that

the totality of the allegations make clear that Plaintiffs claim to have been adversely impacted

because of their race based on Wipro’s intentional discriminatory preferences for South Asian and

Indian employees. (FAC, ¶¶ 29-35, 39-43, 49-51, 56, 67-69.) Accordingly, I find that when

construing the FAC in a light most favorable to Plaintiffs, they have sufficiently alleged claims for

disparate treatment under Title VII and Section 1981.6

B. Statute of Limitations

Next, independent from the deficiencies raised by Wipro above, Defendant also argues that

certain Title VII claims and Section 1981 claims are untimely and should be dismissed.

5 The Court notes that while Plaintiff Gibbs alleges that he left Wipro in September 2015, Title VII

and Section 1981 “encompasses employer liability for a constructive discharge.” Pennsylvania State Police

v. Suders, 542 U.S. 129, 143 (2004); Levendos v. Stern Entertainment, Inc., 860 F.2d 1227 (3d Cir.1988).

6 To the extent that Defendant argues that Plaintiffs’ claim must fail because they do not allege

causation, I note that the pleading standard post-Twombly does not require a prima facie case to be

established in the complaint, it “simply calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary elements.” Connelly v. Lane Const. Corp., 809 F.3d 780,

789 (3d Cir. 2016) (quoting Twombly, 550 U.S. at 556). A prima facie case is an evidentiary standard, not

a pleading requirement; thus, it cannot be used to measure whether a complaint fails to state a claim. Fowler

v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009).

Specifically, Wipro argues that Title VII claims asserted by Valles, Pezeshki, Gibbs, and MacLean,

as well as Section 1981 claims asserted by Valles and Gibbs run afoul of the statute of limitations.

“Under Title VII, a charge of race or sex discrimination in employment must be filed with

the EEOC within 180 days of the occurrence of the alleged unlawful employment practice.” Burgh

v. Borough Council of Borough of Montrose, 251 F.3d 465, 469 (3d Cir. 2001). The 180-day

deadline is extended to 300 days when the plaintiff lives in a so-called deferral state, such as New

Jersey. Scocozza v. New Jersey, No, 14-2095, 2014 WL 6674453, at *4 (D.N.J. Nov. 25, 2014)

(citing 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)); Cardenas v. Massey, 269 F.3d 251, 255

n.2 (3d Cir. 2001)). The EEOC must investigate the charge “and the complainant must allow a

minimum of 180 days for the EEOC investigation to proceed.” Burgh, 152 F.3d. at 470. If the

EEOC has not resolved the charge after 180 days, it must advise the plaintiff through a “right-to-

sue” letter “that it sees no reason to take action on the complaint.” Id. (citations omitted). A plaintiff

cannot bring a Title VII suit without having first received a “right-to-sue” letter. Id. (citation

omitted). Indeed, “[i]f a plaintiff brings suit under Title VII [ ] before receiving a right-to-sue letter,

the matter may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to

exhaust administrative remedies.” Small v. Rahway Bd. of Educ., No. 17-1963, 2017 WL 1351400,

at *2 (D.N.J. Apr. 6, 2017) (citations omitted); see, e.g., Robinson v. Univ. of Med. & Dentistry of

N.J., No. 06–1158, 2006 WL 3371748, at *2 (D.N.J. Nov. 17, 2006) (granting motion to dismiss

ADA claims where plaintiff admitted that she did not file an EEOC charge or receive a right to sue

letter). If the plaintiff does choose to bring a Title VII action, “it must be filed within 90 days of

the date on which the complainant has notice of the EEOC’s decision not to pursue the

administrative charge.” Id. (citing 42 U.S.C. § 2000e-5(f)(1)). The start of 90-day period is

generally triggered by the date the plaintiff receives the right-to-sue letter. Id. (citing Seitzinger v.

Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999); Mosel v. Hills Dept. Store, Inc.,

789 F.2d 251, 252 (3d Cir. 1986)). “Both the [300]-day period for filing the administrative

complaint and the 90-day period for filing the court action are treated as statutes of limitations.”

Id. (citation omitted). The Third Circuit strictly construes these periods and has held that “even

one day late is time-barred and may be dismissed.” Id.

As for Valles’ and Gibbs’ claims asserted under Section 1981, it is well-settled that the

statute of limitations for these claims is four years. Jones v. R.R. Donnelley & Sons Co., 124 S. Ct.

1836, 1845 (2004).

Here, I find, and the parties agree, that the individual Title VII claims asserted by Pezeshki

and MacLean, and the individual Section 1981 claims asserted by Gibbs and Valles are timely

based on application of the equitable tolling doctrine in American Pipe & Construction Co. v. Utah

(American Pipe), 414 U.S. 538 (1974).7 See Commc’ns Workers of Am. v. N.J. Dep’t of Pers., 282

F.3d 213, 216–17 (3d Cir. 2002) (finding that the exhaustion and filing requirements of Title VII

are non-jurisdictional prerequisites to filing a lawsuit and are subject to waiver, estoppel, and

equitable tolling principles). Beginning with the Title VII claims, the FAC alleges that Wipro

“terminated Mr. Pezeshki on June 1, 2018,” but Pezeshki did not file his EEOC charge until

February 22, 2020—631 days after his termination. (FAC, ¶ 50; Declaration of Grace E. Hart, Esq.

in Support of Defendant’s Motion to Dismiss (“Hart Decl.”), Ex. D.) Similarly, Plaintiffs allege

that Wipro terminated MacLean on February 25, 2019,” but he did not file his EEOC charge until

February 11, 2020—351 days after his termination. (FAC, ¶ 32; Hart Decl., Ex. B.) As to Gibbs,

the FAC alleges that he “left [Wipro] in September 2015,” however, he did not file his EEOC

7 Because the putative class in this case has not yet been certified, the Court only addresses the

timeliness of Plaintiffs’ individual claims.

charge until February 22, 2020—approximately 1606 days after he left Wipro.8 (FAC, ¶ 58; Hart

Decl., Ex. E.) Finally, with respect to Valles, the FAC alleges that Wipro “terminated Mr. Valles

on January 31, 2015,” but Valles did not file his EEOC charge until February 21, 2020—1847

days after his termination. (FAC, ¶ 40; Hart Decl., Ex. C.)

While the Title VII claims asserted by Pezeshki, MacLean, Gibbs, and Valles would

normally be time barred based on their failure to file an EEOC charge within 300 days of

termination, Pezeshki’s and MacLean’s Title VII claims are saved by the equitable tolling doctrine

set forth in American Pipe. In that case, the Supreme Court held that the filing of a putative class

action complaint tolls the applicable statute of limitations as to the individual claims of absent

class members. Specifically, the state of Utah filed a putative class action antitrust lawsuit on

behalf of several public entities eleven days before the expiration of the applicable statute of

limitations. Eventually, the District Court denied class certification for want of Rule 23

numerosity, at which point several of the putative class members moved to intervene. The District

Court allowed intervention despite the expired statute of limitations. The Supreme Court affirmed,

holding that “[t]he commencement of a class action suspends the applicable statute of limitations

as to all asserted members of the class who would have been parties had the suit been permitted to

continue as a class action.” Id. at 554. The court reasoned that “[a] contrary rule allowing

participation only by those potential members of the class who had earlier filed motions to

intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation

which is a principal purpose of the procedure.” Id. at 553. While the American Pipe tolling rule

originally appeared to apply only to purported members of the class who made timely motions to

intervene after the trial court denied class certification, the Supreme Court, in Crown, Cork & Seal

8 Because the FAC does not provide a specific date for when Gibbs left Wipro, the Court gives Gibbs

the benefit of the doubt for purposes of this motion and assumes that he left Wipro on September 30, 2015.

Co. v. Parker, 462 U.S. 345 (1983), extended it to all members of the asserted class, including

those who subsequently filed their own suits. Id. at 353-354. In doing so, the court explained that

a contrary result would “be a needless multiplicity of actions-precisely the situation that Federal

Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.” Id. at

351.

The Phillips Action was filed on December 1, 2017, and therefore, the parties agree that

the 300-day limitations period was tolled with respect to Pezeshki’s and MacLean’s individual

Title VII claims. As for Gibbs and Valles, however, Plaintiffs acknowledge that equitable tolling

under American Pipe is futile because even when the Complaint in the Phillips Action was filed,

Gibbs’ and Valles’ claims were already time barred. Indeed, at the time the Complaint in the

Phillips Action had been filed, on December 1, 2017, Gibbs’ EEOC charge was already 493 days

late, while Valles’ EEOC charge was 735 days late. 9 That said, because the statute of limitations

for claims asserted under Section 1981 is four years, the parties also agree that equitable tolling

under American Pipe does save Gibbs’ and Valles’ claims in that regard. Accordingly, I find that

the individual claim asserted by Pezeshki and MacLean for violation of Title VII and the individual

claims asserted by Gibbs and Valles for violation of Section 1981 are timely. I find, on the other

hand, that the individual Title VII claims asserted by Gibbs and Valles are time barred.

9 I also note that Valles further alleges that “[a]fter his termination,” he “applied to several IT analyst

positions with Wipro,” but Wipro failed to rehire him. (FAC, ¶ 43.) Although the Court recognizes that this

allegation could support a Title VII claim based on Wipro’s failure to rehire Valles, Plaintiffs do not allege

when that decision was made by Wipro. Accordingly, the Court cannot assess compliance with the statute

of limitations for that portion of Valles’ Title VII claim. As a result, Valles’ Title VII claim based on

Wipro’s failure to rehire Valles is dismissed without prejudice; however, should he have the ability to

provide additional factual allegations demonstrating compliance with the statute of limitations, he may

move to amend.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED in part, and

DENIED in part. Specifically, Defendant’s motion is granted as to Plaintiffs’ disparate impact

claims under Title VII based on the Court’s finding that the First Amended Complaint fails to

identify a facially neutral employment practice. However, Defendant’s motion is denied as to

Plaintiff’s disparate treatment claims under Title VII and Section 1981. Further, the Court finds

that the individual Title VII disparate treatment claims asserted by Gibbs and Valles are time

barred. Finally, Defendant’s request to dismiss Plaintiffs’ claims for prospective relief is denied as

premature.

Dated: September 29, 2022 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge