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NEW YORK v. HOLIDAY INNS

August 28, 1984

PEOPLE OF THE STATE OF NEW YORK, by ROBERT ABRAMS, Attorney General of the State of New York, SHIRLEY ROCK, GRETCHEN CHERNETSKY, PATRICIA BARDEN, CLARA McDONNELL, MARY BENNETT, ANNE BENNETT, SANDRA GANNON, LILLIAN BROWN, LUCY MADEJA and LOUISE MACHAJEWSKI, Plaintiffs,
v.
HOLIDAY INNS, INC.; BUFFALO MOTEL CORP.; and HAMBURG INN, INC., Defendants


John T. Elfvin, U.S.D.J.


The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

Plaintiffs commenced this action May 26, 1983 alleging that defendants had engaged in age and gender discrimination in the hiring and discharge of employees in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq ; the New York Human Rights Law, section 296.1(a) of New York's Executive Law; the New York Equal Rights Law, section 40-c of New York's Civil Rights Law; and section 63(12) of New York's Executive Law. The individual plaintiffs also seek relief for alleged intentional infliction of emotional harm.

 Defendant Holiday Inns, Inc. has moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. rules 12(b)(1) and 12(b)(6) or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. rule 56(b). Defendant Buffalo Motel Corp. has also moved to dismiss or strike portions of the Amended Complaint on numerous grounds.

 Defendants have initially asserted that Attorney General Abrams lacks standing to bring this action under any of the aforementioned statutes. The Amended Complaint states and plaintiffs have argued that the Attorney General has parens patriae authority to maintain this action in order to protect the health and welfare of the residents of the State of New York by preventing age and gender discrimination. However recent decisions in Alfred L. Snapp, Etc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 102 S. Ct. 3260, 73 L. Ed. 2d 995 (1982) (hereinafter " Snapp "), and People by Abrams v. 11 Cornwell Co., 695 F.2d 34 (2d Cir. 1982), modified on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc) (hereinafter " Cornwell "), support defendants' contention that the State is merely a nominal party in this action and lacks parens patriae standing.

 In Snapp the Court explained that in order to invoke parens patriae standing "the State must assert an injury to what has been characterized as a 'quasi-sovereign' interest." 102 S. Ct. at 3266. The Court held that a state has quasi-sovereign interests in the health and well-being of its residents and in protecting its citizenry from the harmful effects of discrimination. 102 S. Ct. at 3269-3270. However the Court also instructed that a substantial segment of the population rather than an identifiable group of individuals must be injured in order to give the state such standing to sue. 102 S. Ct. at 3269. Although the Court did not set forth any particular percentage of the population of a state that had to be adversely affected by the challenged actions of a defendant, it held that the indirect effects of the injuries alleged should be considered in determining whether a sufficiently large segment of the population was allegedly injured. 102 S. Ct. at 3269.

 The challenged behavior in Snapp involved alleged ethnic discrimination by Virginia apple-growers against Puerto Rican workers. Although there were only approximately eight hundred temporary job opportunities in Virginia at stake, the Court examined the indirect effect on the Puerto Rican economy, the nature of the invidious discrimination alleged, and found parens patriae standing appropriate due to the "universal sting" carried by "deliberate efforts to stigmatize the [Puerto Rican] labor force as inferior." 102 S. Ct. at 3270 (quoting from Com. of Puerto Rico v. Alfred L. Snapp & Sons, 632 F.2d 365, 370 (4th Cir. 1980)).

 In the case at bar the Attorney General has failed to allege an injury to a substantial segment of New York's population. Despite plaintiffs' assertions that countless other employees may be subjected to defendants' discriminatory practice of discharging older employees and that younger employees and customers of defendants would be deprived of the opportunity to work with or be served by employees of all ages, I find that the Amended Complaint fails to sufficiently allege parens patriae standing even if plaintiffs' allegations are accepted as valid for the purposes of these motions. *fn1"

 In Cornwell, supra, the United States Court of Appeals for the Second Circuit held that parens patriae standing also required a finding that the individuals involved could not obtain complete relief through a private suit. 695 F.2d at 40. In the instant action the individual plaintiffs, if successful, are capable of obtaining reinstatement of employment, monetary damages, as well as the requested broad injunctive relief enjoining defendants from discriminating against any employee because of his or her age or sex. See 29 U.S.C. § 626(c)(1); 42 U.S.C. § 2000e-5(g); section 297(9) of New York's Executive Law; Meyer v. Brown & Root Const. Co., 661 F.2d 369, 374 (5th Cir. 1981) (injunctive relief which benefits non-parties may sometimes be proper in a Title VII action); Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 396 (C.D.Cal. 1981), aff'd, 709 F.2d 544 (9th Cir. 1983) (permanent injunction can prohibit any future violations of the ADEA where willful violations have been established). Therefore in the case at bar, unlike Cornwell wherein the individual plaintiffs' standing was doubtful, the ten named plaintiffs possess the requisite standing to challenge the alleged discriminating practices and to receive complete relief through their private suit. Accordingly, defendants' motions to dismiss the Attorney General's causes of action must be granted. *fn2"

 Defendants Holiday Inns, Inc. and Buffalo Motel Corp. have also asserted that this Court lacks subject matter jurisdiction over the individual plaintiffs' Title VII claims due to the initiation of this action May 26, 1983, prior to the issuance of a "Notice of Right to Sue" letter by the Equal Employment Opportunity Commission ("EEOC") to any plaintiff. However, Right to Sue letters were in fact subsequently issued by the EEOC to all plaintiffs June 27, 1983 and their filing of an Amended Complaint July 12, 1983 has cured any such procedural defect presented by the earlier pleading. The June 27, 1983 letters have the effect of ratifying the prior filed suit. See Spirt v. Teachers Ins. & Annuity Ass'n, 691 F.2d 1054, 1059 n.4 (2d Cir. 1982), vacated and remanded on other grounds, 463 U.S. 1223, 103 S. Ct. 3565, 77 L. Ed. 2d 1406 (1983), modified, 735 F.2d 23 (2d Cir.); cert. denied, 469 U.S. 881, 105 S. Ct. 247, 83 L. Ed. 2d 185 (1984); Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.2d 1211, 1219 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S. Ct. 729, 74 L. Ed. 2d 954 (1983). Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972), cert. denied, 410 U.S. 912, 93 S. Ct. 976, 35 L. Ed. 2d 275 (1973); Fields v. Village of Skokie, 89 F.R.D. 576 (N.D.Ill. 1981).

 Defendants additionally challenge the validity of these Right to Sue letters because of their issuance prior to the 180-day period set forth in 42 U.S.C. § 2000e-5(f)(1) for retention of discrimination charges by the EEOC. *fn3" That section permits the EEOC to issue a Notice of Right to Sue upon either its dismissal of charges or the passage of 180 days from the filing of such charges. In the instant action the Right to Sue letters were issued pursuant to an EEOC regulation, 29 C.F.R. § 1601.28(a)(2), which provides for an earlier Notice of Right to Sue if the District Director or other EEOC official has determined that it is probable that the EEOC will be unable to complete its administrative processing of the charges within the 180-day period from the filing of the charges. *fn4"

 Defendants Holiday Inns, Inc. and Buffalo Motel Corp. have argued, and a number of district courts have held, that this EEOC regulation is invalid as inconsistent with Congress's intentions expressed in 42 U.S.C. § 2000e-(5)(f)(1) that either dismissal of charges by the EEOC or the passing of the 180-day period is a prerequisite to the issuance of a Notice of Right to Sue. See Mills v. Jefferson Bank East, 559 F. Supp. 34, 36 (D.Colo. 1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739, 742-745 (S.D.N.Y. 1980); Loney v. Carr-Lowrey Glass Co., 458 F. Supp. 1080, 1081 (D.Md. 1978). These decisions are supported by dicta in numerous United States Supreme Court opinions recognizing that a private party must file EEOC charges and then wait 180 days before instituting a federal lawsuit under Title VII. In Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977), it was held that the 180-day waiting period imposed no statute of limitations upon the EEOC's power to institute a federal action, and it was further explained that a "private right of action does not arise until 180 days after a charge has been filed." Id. at 361.

 
"[A] natural reading of § 706(f)(1) [42 U.S.C. § 2000e-5(f)(1)] can only lead to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so." 432 U.S. at 361.

 See also, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 104 n.12, 60 L. Ed. 2d 66, 99 S. Ct. 1601 n.12 (1979) (a complainant must allow the EEOC a full 180 days to negotiate a settlement); Johnson v. Railway Express Agency, 421 U.S. 454, 458, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (after the passage of 180 days the claimant may demand a Right to Sue letter and institute the Title VII action himself).

 Plaintiffs rely on a number of decisions which have held that section 2000e-5(f)(1) does not prohibit the EEOC from issuing a Right to Sue letter before the end of the 180-day period. See Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 1980); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425 (9th Cir. 1979), vacated and remanded on other grounds, 444 U.S. 598, 100 S. Ct. 814, 63 L. Ed. 2d 55 (1980); *fn5" Cattell v. Bob Frensley Ford, Inc., 505 F. Supp. 617, 622 (M.D.Tenn. 1980); Vanguard Justice Society, Inc. v. Hughes, 471 F. Supp. 670 (D.Md. 1979). The rationales of these decisions are initially appealing in their pointing out of the futility of forcing victims of discrimination to "mark time" when it appears that the EEOC will be unable to investigate their charges or reach conciliation proceedings within the 180-day period. However, as recognized in Spencer v. Banco Real, S.A., supra, such arguments must be addressed by Congress and not by the judiciary in view of the unambiguous language of section 2000e-5(f)(1) and Congress's awareness of the enormous backlog of cases before the EEOC when such section was amended in 1972. See Occidental Life Ins. Co. v. EEOC, supra, at 369-370. Plaintiffs' additional reliance on Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975), is misplaced due to the unusual circumstances presented in that action. In Weise, the EEOC had issued a Notice of Right to Sue only three days after the filing of additional charges, alleging a continuing course of discrimination. The Court found that it was not necessary for ...


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