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March 15, 1982

Kristine A. KLAUSNER, Plaintiff,

The opinion of the court was delivered by: MINER



 This action has been commenced pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., alleging discrimination on the basis of sex. Plaintiff Kristine A. Klausner, employed by defendant Southern Oil (hereinafter "Southern") as a gasoline station manager, alleges that she was subjected to onerous working conditions and finally dismissed, solely because she had become pregnant. In an amended complaint, plaintiff sets forth the additional claim that Richard Shaw and Donald Peters, employees of Southern, conspired to deprive her of equal protection of the laws, in violation of 42 U.S.C. § 1985(3). Plaintiff seeks reinstatement and back pay, medical expenses associated with her pregnancy, $ 50,000 for pain and suffering, $ 500,000 in punitive damages, court costs and attorney's fees.

 Before the Court is a motion by the defendant to dismiss the Title VII count pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 12(h)(3), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. In addition, defendant moves to dismiss the § 1985(3) claim for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).



 Defendant contends that the plaintiff failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC"), and, therefore, the complaint should be dismissed for lack of subject matter jurisdiction or for failure to state a claim, or alternatively, that summary judgment should be granted since the action is barred by the applicable statute of limitations. Since timely filing with the EEOC is not a jurisdictional prerequisite for filing a Title VII suit, but rather a limitations requirement subject to waiver, estoppel and equitable tolling, Zipes v. Trans World Airlines, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), this Court will treat the defendant's motion as one for summary judgment pursuant to Fed.R.Civ.P. 56.


 Summary judgment is a drastic remedy which should be granted only when it is clear that the requirements of Rule 56 of the Fed.R.Civ.P. have been satisfied. United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976); Gargiul v. Tompkins, 525 F. Supp. 795, 797 (N.D.N.Y.1981). "(Summary) judgment is to be used not as a substitute for trial, but only when "... it is quite clear what the truth is (and) that no genuine issues remain for trial.' Sartor v. Arkansas National Gas Corp., 321 U.S. 620, 627 (64 S. Ct. 724, 728, 88 L. Ed. 967) (1944)." Pfizer Inc. v. International Rectifier Corp., 538 F.2d 180, 184-85 (8th Cir. 1976), cert. denied, 429 U.S. 1040, 97 S. Ct. 738, 50 L. Ed. 2d 751 (1977). Indeed, the reviewing court must accept as true factual statements in the opposing party's affidavits; draw all permissible inferences in that party's favor, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980), see also Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976); and resolve any doubts in favor of the latter, American Mfrs. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967). In short, the movant has the dual burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).


 In order to determine whether the plaintiff filed a timely application with the EEOC or whether tolling would be appropriate, the events leading up to the filing of the Title VII complaint are of critical importance.

 Plaintiff began her employment with Southern on January 31, 1977, and held the position of manager of a "Payless" gasoline station just prior to her dismissal on June 3, 1980. On March 11, 1981, 281 days after her termination, plaintiff's counsel filed a verified complaint with the New York State Division of Human Rights (hereinafter "NYSDHR") alleging employment discrimination. Enclosed with the complaint, plaintiff's counsel submitted a letter requesting that the NYSDHR defer consideration on the case in order to permit the EEOC claim to be filed. NYSDHR then forwarded a copy of the complaint directly to the EEOC where it was received on March 19, 1981. On March 13, 1981, plaintiff's counsel again wrote to NYSDHR, requesting a termination of the case for administrative convenience. On March 26, 1981 plaintiff's counsel wrote to Robert Shaw, Regional Director of NYSDHR, confirming a telephone conversation of the previous day that the case had been timely filed with the EEOC and that there were no "Mohasco" problems. According to the letter, Mr. Shaw had informed plaintiff's counsel that the NYSDHR had waived initial processing rights in the matter, but had not terminated its consideration and would reactivate the case if the EEOC's handling of the case proved unsatisfactory. EEOC form 212-A, dated March 24, 1981, indicates that the charge was received by the EEOC's Buffalo office on March 23, 1981 and that Robert Resto, Director of the Federal Contract Unit of NYSDHR, had granted a verbal waiver on March 23, 1981, 293 days after plaintiff's termination. The form further indicates that the charge will be maintained in the NYSDHR's system but is referred to EEOC for initial processing. The form was initialled by Robert Resto on March 31, 1981. On March 31, 1981, Resto also sent a letter to Southern, requiring that it respond to the NYSDHR's inquiry and investigation form. In a letter dated April 15, 1981, Harvey Anderson, Regional Director of NYSDHR, wrote to Mr. Jeter of Southern, requesting that NYSDHR be supplied with copies of his responses to the EEOC investigation. On May 5, 1981, the EEOC issued a determination that there was no reasonable cause to believe that the plaintiff's charge of discrimination was true. On May 5, 1981, the EEOC dismissed the charge and issued the plaintiff a Notice of Right to Sue.


 Under 42 U.S.C. § 2000-5(e), *fn1" a complaint is required to be filed within 180 days of the alleged unlawful employment practice. However, in States that have established their own anti-discrimination agencies-New York being such a State *fn2" -a charge may be filed within 300 days after the unlawful practice occurred, or within 30 days after receipt of notice that the State agency has terminated its proceedings, whichever is earlier. However, § 2000e-5(c) *fn3" adds the requirement that, in a State that has established its own anti-discrimination agency, a charge may not be filed with the EEOC before the expiration of 60 days after proceedings have been commenced in the State agency, unless these proceedings have been earlier ...

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