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ALBANO v. GENERAL ADJUSTMENT BUR.

November 1, 1979

RITA ALBANO, Plaintiff, against GENERAL ADJUSTMENT BUREAU, INC. (GAB) a/k/a G.A.B. Business Services, Defendant.


The opinion of the court was delivered by: GOETTEL

In this action commenced pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e Et seq., the defendant has moved for summary judgment, alleging that the plaintiff has failed to satisfy the jurisdictional prerequisites necessary for commencement of this action.

Plaintiff, Rita Albano, was employed in October, 1973 by the defendant, General Adjustment Bureau, Inc. ("GAB"), first as a typist, and later as a Branch Office Secretary. During the course of her employment the plaintiff applied for a position as Property Adjuster, a job which, she states, was then, and continues to be, almost exclusively filled by male employees. Although her application was initially turned down, the plaintiff alleges that she was subsequently told, in September, 1975, that she would be promoted to that position. Prior to the effective date of that promotion, however, the alleged offer was rescinded, and the plaintiff was appointed to a different job as a Casualty Adjuster.

 Following the denial of this promotion, the plaintiff filed with the Equal Employment Opportunity Commission ("EEOC"), in late October, 1975, a signed charge alleging discrimination by the defendant. On November 10, 1975 the EEOC responded, advising the plaintiff that it had sent a copy of her complaint to the New York City Commission on Human Rights ("CCHR"), as required under the procedural provisions of Title VII. *fn1"

 On November 14, 1975, the plaintiff received a letter from the CCHR advising her that it had received a copy of her EEOC complaint, and requesting that she come to its offices to file a formal CCHR complaint. The plaintiff, apparently upon the advice of counsel (not her present attorney), chose to ignore this request and informed the CCHR that she would instead be filing a complaint with the New York State Division of Human Rights ("NYSDHR"). *fn2" Thereafter, the plaintiff alleges that she was told by her attorney that such a complaint was filed. The plaintiff has now stipulated to the fact that no complaint was ever filed with the NYSDHR.

 On January 13, 1976, the EEOC advised the plaintiff that, as the sixty day waiting period *fn3" had expired, her complaint would be administratively closed unless the plaintiff informed the EEOC within seven days of her intent to press her charges. The plaintiff's counsel so informed the EEOC, and thereafter cooperated with the EEOC in its investigation, which resulted in a finding of probable cause to believe that the defendant had violated the plaintiff's rights under Title VII. At no time during these proceedings was it suggested, either by any of the parties or by the EEOC itself, that there had been any failure to employ or exhaust state remedies. From the papers before the Court it does not appear that the EEOC followed up its initial communication with the CCHR to determine what had been the disposition of those proceedings. *fn4"

 After a failure of conciliation proceedings, the EEOC issued a Notice of Right to Sue on behalf of the plaintiff. Plaintiff subsequently filed the instant action on October 27, 1978. Thereafter, upon discovering that the NYSDHR had no record of a complaint filed with it by her (by her former counsel), the plaintiff filed, in June, 1979, a new complaint with the CCHR.

 The defendant has now moved for summary judgment, alleging that the plaintiff failed to satisfy the jurisdictional prerequisite of having filed a complaint with the appropriate state agency prior to proceeding before the EEOC and prior to commencing this action.

 Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(c), *fn5" sets forth the procedures to be followed when an alleged discriminatory employment practice has occurred in a state, or local subdivision thereof, such as New York State, See N.Y.Exec. Law § 290 Et seq. (McKinney 1972), and New York City, See N.Y.C.Admin.Code § B1-1.0 Et seq. (1976), whose law both prohibits such a discriminatory practice and provides for a state or local administrative agency that has the power to remedy such violation. In that situation, a complaint must first be filed with the appropriate state or local agency, so that they may have the first opportunity to resolve the dispute, and only upon the "expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated," may charges be filed with the EEOC.

 In deciding whether the required sixty day period has expired, and thus whether a complaint can properly be filed with the EEOC, a court must determine when the state or local administrative proceeding was commenced. In the instant action the plaintiff argues, alternatively, that her action was commenced with the local agency either when the EEOC sent a copy of her complaint to the CCHR, or, if not at that time, at least at the point when she filed a formal complaint with the CCHR on or about June 27, 1979. In either event, she claims, such filing served to afford the local agency an adequate opportunity to resolve the dispute, and sufficiently complied with the procedural requirements of Title VII so that she may now proceed in federal court.

 We turn first to the question as to the timeliness of the June, 1979 filing with the CCHR. The plaintiff, relying heavily upon the Supreme Court's recent decision in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979), argues that, even coming after the EEOC had completed its investigation and issued its "right to sue" letter, and after the commencement of the instant action, such filing was timely, and, as sixty days have now passed, has served to satisfy the procedural requirements of section 706(b). Conversely, the defendant asserts that, as the filing of the state charges and the sixty day waiting period is a condition precedent to valid EEOC proceedings, and as the EEOC proceedings had already concluded by the time the June, 1979 complaint had been filed, this late filing cannot correct the procedural irregularities of this action. Thus, the defendant argues, the plaintiff cannot comply with the requirements of section 706(b).

 In Oscar Mayer & Co. v. Evans, supra, the Supreme Court was confronted with the problem of determining the proper interpretation to be afforded to section 14(b) of the Age Discrimination in Employment Act of 1967 ("ADEA"). After finding that section 14(b) of the ADEA was patterned after section 706(b) of Title VII, 441 U.S. at 755, 99 S. Ct. at 2071, the Court noted that the ADEA, like Title VII, required resort to a state administrative agency (if such agency was both available and appropriate) prior to proceeding with an action in federal court. The Court went on to hold, however, that this requirement of the ADEA could still be satisfied, even if federal administrative proceedings before the Department of Labor had already been completed, and an action in federal court already commenced, so long as the appropriate agency was given an opportunity, prior to continuation of the federal action, to entertain the complaint. Accordingly, the Court remanded the action with an order directing the district court to hold the action in abeyance pending compliance with the mandates of section 14(b). 441 U.S. at 765, 99 S. Ct. at 2076.

 The plaintiff contends that the reasoning of Oscar Mayer applies as much to Title VII as it does to the ADEA and that, as a result, her initial failure to file with the state as required by section 706(b) was cured by her filing with the CCHR after commencement of the instant action. This Court cannot agree. While the purposes of both the ADEA and Title VII are, in many ways, very similar, the procedural mechanisms and time strictures established for them vary greatly. As the Supreme Court noted in Oscar Mayer, 441 U.S. at 756-57, 99 S. Ct. at 2071-72, Title VII, unlike the ADEA, which provides for concurrent federal and state agency jurisdiction, *fn6" provides for sequential jurisdiction whereby the person aggrieved must first file with the state antidiscrimination agency before being able to file with the EEOC. As a result, only after the appropriate state agency has been given its required opportunity to resolve the claim does the EEOC obtain the subject matter jurisdiction necessary so as to proceed with its investigation and issue a "right to sue" letter. If the EEOC acts, as it did in the instant action, before the state agency has had such an opportunity, it has done so in derogation of section 706(b) and without the requisite jurisdiction. Such a failing cannot be cured by a subsequent filing with the state.

 Having determined that the subsequent filing could not remedy the alleged procedural defects, the Court must next determine whether such defects actually existed prior to the filing of the instant complaint.

 The plaintiff contends that the EEOC's action in sending a notice of the filing of a charge with it to the CCHR constituted a filing with the state. Accordingly, the plaintiff asserts that she has satisfied the requirements of section 706(b) and may proceed with this action. Her assertion raises two questions: (1) whether the sending of this notice of filing in itself constituted an adequate filing with the state under section 706(b); and, if so, (2) whether the plaintiff, by informing the CCHR ...


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