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DIN v. LONG ISLAND LIGHTING CO.

January 3, 1979

Saeed U. DIN, Plaintiff,
v.
LONG ISLAND LIGHTING COMPANY, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Plaintiff initiated this action Pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g). He alleges that the defendant Long Island Lighting Company ("LILCO") has discriminated against him on the basis of his national origin, which is Pakistanian, in its refusal to hire him as an engineer. Plaintiff is now represented by counsel appearing Pro bono to oppose the motion for summary judgment pursuant to Rules 12(b) and 56, F.R.Civ.P., now before the court.

 In May 1974, a vacancy occurred in LILCO's Electric Production Department for an assistant electrical engineer. On June 10, 1974, LILCO notified the New York State Department of Labor Job Bank that an opening was available, and on June 24, 1974, an applicant was offered the job and filled the vacancy.

 In response to the notice of vacancy posted at the job bank, plaintiff claims he made several attempts to obtain an interview and was refused. Finally, on July 24, 1974, plaintiff appeared at LILCO's employment office, filed an application for employment and persisted and prevailed in obtaining an interview. He was told by the interviewer, however, that the position had been filled one month earlier but that his application would be kept on file for a one-year period according to LILCO's policy.

 Plaintiff claims that since this interview and during the period in which his application was on file, LILCO had at least 44 vacancies in engineering, most, if not all of which, he claims he was qualified to fill. *fn1" On April 10, 1975, less than nine months after his interview, he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and on May 14, 1975, he filed a similar complaint with the State Division on Human Rights ("SDHR"). On July 11, 1975, the SDHR issued a no probable cause determination and on April 26, 1978, the EEOC dismissed the complaint and issued a right to sue letter. This action followed.

 Defendant moves for summary judgment on grounds that (1) service of process was insufficient; (2) plaintiff's EEOC and SDHR charges were untimely; (3) the EEOC failed to defer its investigation to the SDHR; and (4) plaintiff has failed to state a claim upon which relief can be granted or his claim should be dismissed for failure to exhaust administrative remedies. For the following reasons, defendant's motion is denied.

 Service of process was sufficient. On May 9, 1978, a federal marshal made service upon the office manager of LILCO's District Office in Hicksville. Defendant contends that service upon the office manager was not proper under Rule 4(d)(3), F.R.Civ.P., and Merckens v. F. I. DuPont, Glore Forgan & Co., 514 F.2d 20 (2 Cir. 1975).

 First, service upon one who describes his own status as manager of a branch office is proper under CPLR § 311, Doris Trading Corp. v. SS Union Enterprise, 406 F. Supp. 1093, 1097 (S.D.N.Y.1976), and thus is proper under the Federal Rules applicable here, Rule 4(d)(7). This is so even where the manager served is merely acting managing agent. Buckner v. D & E Motors, Inc., 53 Misc.2d 382, 278 N.Y.S.2d 932 (Sup.Ct. Spec. T. Erie County 1967); Collini v. Turner Const. Co., 129 N.Y.S.2d 485 (Sup.Ct. Spec. T. Kings County 1954); Green v. Morningside Heights Housing Corp., 13 Misc.2d 124, 177 N.Y.S.2d 760 (Sup.Ct. Spec. T. New York County), Aff'd, 7 A.D.2d 708, 180 N.Y.S.2d 104 (App.Div. 1st Dept.1958). Here there is no serious dispute that the Acting District Manager, upon whom service was made, was in a position of responsibility involving the exercise of judgment and discretion, and was of a stature to accept responsibility for the summons and to act to give notice to the corporation. See Top Form Mills, Inc. v. Sociedad Nationale Industria Applicazioni Viscosa, 428 F. Supp. 1237, 1250-51 (S.D.N.Y.1977). Second, Merckens, supra, is distinguishable. Plaintiff there served a Delaware corporation rather than the proper defendant, a New York partnership. The entities were unquestionably distinct, unlike the instant case. Finally, were there a serious question of notice to the corporation and consequently of personal jurisdiction over the defendant, the court would merely direct reservice on an appropriate person. Since this additional expense (on the Federal Government) is unwarranted in the circumstances, we simply hold that this court has personal jurisdiction over LILCO.

 Plaintiff's EEOC and SDHR complaints were timely. Defendant argues that the facts establish that the EEOC complaint was not filed within 300 days of the alleged discriminatory act, the time permitted where, as here, there is a local agency (the SDHR) to which the EEOC must defer before acting on a complaint. 42 U.S.C. § 2000e-5(e). See Weise v. Syracuse University, 522 F.2d 397, 411-12 (2 Cir. 1975). Moreover, it is asserted that even if the EEOC charge was timely, plaintiff's SDHR charge was not filed within 180 days of the alleged act, the time allowed where there is no local agency. For these reasons, defendant contends this court is without jurisdiction and finds support for its position in Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8 Cir. 1975).

 A timely filed EEOC complaint is, of course, a prerequisite to this action. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Keyse v. California Oil Corp. & American Overseas Petroleum Ltd., 590 F.2d 45, (2 Cir. 1978); Weise v. Syracuse, supra at 411-12. Plaintiff's charge filed with the EEOC alleged that the discriminatory act occurred "on or about June 1, 1974." From this, defendant contends that the EEOC filing must have been made before March 28, 1975 and thus plaintiff's filing on April 10, 1975 was untimely. The court concludes, however, that plaintiff's uncounselled and non-specific pleadings in the EEOC cannot be used to bind and bar him where the facts disclose the basis for a timely filed claim. It is clear from the undisputed facts that plaintiff was interviewed for a job on July 24, 1974 (Fernandez Affidavit at 3) and Thereafter was refused employment. In fact, LILCO concedes plaintiff was unknown to it until this date (Defendant's Memorandum in Support of Motion at 8). Since this is the earliest date upon which any act of discrimination could have occurred, the EEOC filing was timely.

 Moreover, the facts thus far presented indicate that defendant retained plaintiff's application for at least a nine-month period before the institution of EEOC charges which, in the view the court takes of this case, provides the basis in fact for an alleged failure to hire throughout that period. Although defendant contends that plaintiff never presented a claim of discrimination After the July 24, 1974 interview to the EEOC and is thus barred from presenting such a claim here, see discussion Infra, the court believes that plaintiff has suggested a basis from which discriminatory practices might be established during that period sufficient to predicate a timely filing with the EEOC After March 28, 1975.

 On the basis of the Eighth Circuit's decision in Olson, supra, defendant also raises plaintiff's failure to file a charge with the SDHR within 180 days as a jurisdictional bar to this action. In Olson, plaintiff filed a charge with the EEOC more than 180 days after the act of employment discrimination underlying the charge but within the 300-day period allowed for claimants in "deferral" states. The EEOC referred her charge to the Missouri Commission on Human Rights, which accepted it although it was not filed within 90 days of the discriminatory act as required by State statute. The Court of Appeals held that in these circumstances the claimant could not rely on the 300-day period because she had failed to file with the State Commission within 180 days, and thus her action was barred. 511 F.2d at 1233.

 It is clear, however, that the concern of the court in Olson was in assuring that claimants in deferral states in which the State filing period was Less than 180 days would not be penalized by the shorter period, perhaps depriving them of their federal remedy, and in encouraging utilization of State remedies. Thus, the court considered a filing within 180 days timely although the State period was 90 days. It noted that "a complainant in a deferral state will have At least 180 days in which to file with the state or local agency to receive the benefit of the deferral period . . . ." Olson, supra at 1232 (emphasis supplied). The court went on to state in dictum, however, that "a charge of employment discrimination must be filed within 180 days whether or not the complainant is in a deferral state." Id. at 1233.

 In New York, complaints filed with the SDHR are controlled by the limitation set forth in New York Executive Law § 297(5), which provides a one-year filing period after the alleged discriminatory practice. Plaintiff has filed with the SDHR within the one-year period, and hence has filed a timely State complaint. Having complied with the State statute, plaintiff's filing of the EEOC complaint within 300 days was timely even though the filing with the SDHR was not within 180 days. See Doski v. M. Goldseker Co., 539 F.2d 1326, 1329-30 (4 Cir. 1976); Lo Re v. Chase Manhattan Corp., 431 F. Supp. 189, 196 (S.D.N.Y.1977); Kennedy v. New York Telephone Co., 18 FEP Cases 199, 201 (E.D.N.Y.1978). See also Paxton v. Lanvin-Charles of the Ritz, Inc., 434 F. Supp. 612 (S.D.N.Y.1977). We prefer to follow this growing body of precedent, supported by EEOC interpretation and practice, see Doski, supra at 1331-32; Kennedy, supra at 201 n. 5, rather than the dictum in Olson. This conclusion requires exhaustion of State remedies, see 29 C.F.R. § 1601.12; Voutsis v. Union Carbide Corp., 452 F.2d 889, 892 (2 Cir. 1971), Cert. denied, 406 U.S. 918, 92 S. Ct. 1768, 32 L. Ed. 2d 117 (1972); plaintiff cannot circumvent deferral or "bootstrap" into a longer period of limitations. *fn2" ...


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