The opinion of the court was delivered by: BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
By Order dated June 14, 1978, I dismissed certain claims in plaintiff's complaint without prejudice to their renewal and upheld other claims, holding that the statute of limitations should be tolled for the time between the filing of plaintiff's complaint with the Department of Labor and the rendition of the decision by the Commission on Human Rights of the City of New York.
Defendant Interstate Motor Freight System ("Interstate") has filed a motion for reargument of that portion of my Order of June 14 which holds that the statute of limitations should be tolled. I grant defendant's motion for reargument and upon reconsideration I adhere to my decision of June 14, 1978.
Interstate claims that the statute of limitations should not be tolled because plaintiff did not commence any suit in state court. Interstate contends that this fact fatally distinguishes the instant case from Mizell v. North Broward Hospital District, 427 F.2d 468 (5th Cir. 1970) and that the Court of Appeals for the Second Circuit would decline to follow Mizell in this case, citing Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977) and Meyer v. Frank, 550 F.2d 726 (2d Cir. 1977), both discussed in my Order of June 14.
Interstate's contention that plaintiff's failure to present his claims to a state court bars tolling is not persuasive. As stated in the June 14 Order, plaintiff was under no obligation to present his claim to a state court, but he was obligated to exhaust state administrative remedies, which he did.
The different effects of and different posture in which utilization of state administrative procedures is viewed compared with state court proceedings is indicated in the application of the doctrine of res judicata in Mitchell v. National Broadcasting Company, 553 F.2d 265, 276 (2d Cir. 1977):
By invoking res judicata when a claimant crosses the line between state agency and state judicial proceedings [and not before], we still allow the expertise of the state agency to be applied to the claim of discrimination; a method is still available for resolution of a grievance without resort to the federal courts; and proper deference is paid to the state's own interest in obviating discrimination through its agency process. ... At the same time, a plaintiff is not forced into the Catch-22 choice of complying with exhaustion requirements and barring a federal claim or bringing a federal claim and suffering dismissal for failure to exhaust. (citations omitted).
Similarly, under Interstate's analysis, plaintiff would not be entitled to tolling powers of the federal court unless he had taken his claim not only to the state administrative agencies but also to the state courts, although this does not comport with the rule that plaintiff is under no obligation to resort first to the state court, and as stated in Mitchell, would subject plaintiff to assertions of res judicata. Therefore, plaintiff's failure to seek redress in the state court does not make this an inappropriate circumstance for tolling the statute of limitations.
Interstate's reliance upon Johnson v. Railway Express Agency, 421 U.S. 454 (1975) is also misplaced. Interstate quotes from a portion of the opinion in Johnson wherein the Court rejects petitioner's policy argument in favor of tolling; the court is persuaded by the fact that petitioner could have brought his claim directly to federal court without first presenting it to the EEOC. As indicated in my previous Order and reiterated above, in the case before me, unlike Johnson, plaintiff was required to present his claim to the agency before commencing a federal action.
Vincent L. Broderick, U.S.D.J.
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