The opinion of the court was delivered by: Owen, District Judge:
Sachiko Tasaka, a sixty-seven year old Associate Program
Executive, alleges that she was laid off by defendant DDB
Worldwide, Inc. in 1988 solely and discriminatorily on account
of her age. In her complaint she asserts two causes of action
flowing from this alleged wrongful discharge. The first cause
of action is based on the federal Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., under which any relief
is basically limited to lost pay and reinstatement; the second
cause of action, a pendent New York state claim, seeks further
relief, including pain and suffering and punitive damages,
neither of which is allowable under the federal statute.
Plaintiff, as a statutory condition precedent to instituting
this action in the United States District Court, first filed
her charge with the Equal Employment Opportunity Commission.
This affords the EEOC at least sixty days within which to try
to resolve the issues administratively.*fn1 Because New York
has an age discrimination law and a state authority, the New
York State Division of Human Rights, to provide relief from a
discriminatory practice, plaintiff's charge was however duly
the EEOC to the State Division pursuant to federal regulations,
29 C.F.R. § 1600.13(4)*fn2, to permit informal resolution to
take place at a local level. The sixty day waiting period
having elapsed without an administrative resolution, plaintiff
was entitled to and did commence this action in this Court,
asserting not only her federal claim but also a state claim as
DDB moves to dismiss the state claim — the second cause of
action — on jurisdictional grounds,*fn4 asserting that
plaintiff is barred from seeking judicial relief on her state
law discrimination claim by reason of New York law as
established in a recent Appellate Division, First Department
decision, Scott v. Carter Wallace, 147 A.D.2d 33, 541
N YS.2d 780 (1989), and New York Executive Law § 297(9)
(McKinney's 1982 & Supp.).*fn5 As established by the Scott
decision read together with the Executive Law, one allegedly
aggrieved by age discrimination in employment has a right of
redress ab initio in the courts of the State of New York, but
only if that is the first forum in which such relief is sought.
If, however, the claimant first proceeds in either the federal
arena — before a United States District Court or the EEOC — or
administratively, before the State Division, the claimant is
thereafter barred from litigating the issues through state
judicial channels.*fn6 Because plaintiff here did not first
lay her grievance before the New York courts, her state law
claim no longer exists under New York law, and accordingly,
defendant asserts, a no-longer-existent state claim may not
thereafter be asserted as a viable pendent claim in a federal
action, and must be dismissed.
I conclude, however, that defendant's suggested application of
the Scott decision may not so constrict federal jurisdiction
over claims properly filed in a federal forum, where the
plaintiff has not waived state law rights in any customary
sense. As the Appellate Division itself recognized, its
conclusion that a litigant's election of a federal route
terminates state court availability does not necessarily
determine the effect of that conclusion on this Court's
jurisdiction. Scott, 541 N.Y.S.2d at 783. Indeed, Scott
strongly suggests that a state claim barred in New York state
courts should remain viable in a federal action under these
circumstances, because "a grievant who files with the EEOC
effectively elects, whether he realizes it or not, the federal
judicial forum, and it is to that forum that the grievant
should look for his remedies, including any state law remedies
provided by the Human Rights Law." Id. (emphasis added).
In so holding, Scott recognizes that the New York policy
underlying its election of remedies rule designed to conserve
the resources of New York fora would not be undercut by a
federal court's redressing such a state law claim,
notwithstanding that it was barred in the state. See Giuntoli
v. Guybutler, Corp., 726 F. Supp. 494 (S.D.N.Y. 1989). On the
other hand, federal court application of the state rule,
resulting in the loss of a state claim not meaningfully waived,
would frustrate federal policies enunciated by Congress. Id.
The legislative history of the ADEA clearly discloses Congress'
preference for unified, expeditious procedures for ADEA suits.
See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct.
2066, 2071, 60 L.Ed.2d 609 (1979) (citing 113 Cong.Rec. 7076
(1967) (remarks of Sen. Javits); 110 Cong.Rec. 13087 (1964)
(remarks of Senator Dirksen on similar provision in Title VII,
42 U.S.C. § 2000e, et seq.)). There is of course no suggestion
that Congress, in granting district courts jurisdiction over
ADEA "actions," did not include in the jurisdictional grant the
power to hear pendent state law claims when together the claims
comprise a single case that would ordinarily be tried together.
United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.
1130, 1138, 16 L.Ed.2d 218 (1966). Hargrave v. Oki Nursery,
Inc., 646 F.2d 716, 719 (2d Cir. 1981).*fn7 Without
question, all else being equal, the exercise of pendent
jurisdiction is appropriate in this case, because plaintiff's
state law claim's being based on the identical incidents of
alleged discrimination as are at issue in the federal claim,
separate proceedings would result in duplication and
Even were plaintiff's choice of a remedy held up to scrutiny
solely under New York's election of remedies test, I conclude
that no waiver of the state law claim is effected by commencing
with a mandatory initial filing with the EEOC, with a
subsequent mandatory deferral to the State Division. Although
there is some division of thought in the courts, the better and
more established reasoning heretofore is that the EEOC's
automatic, involuntary referral to the State Division is not an
"election" of state administrative relief with consequent loss
of a state action at law within the meaning of Executive Law §
297(9), supra at n. 5. See, e.g., O'Brien v. King World
Productions, Inc., 669 F. Supp. 639 (S.D.N.Y. 1987); Kaczor v.
City of Buffalo, 657 F. Supp. 441 (W.D.N.Y. 1987) (citing
Scott v. Carter-Wallace, 134 Misc.2d 458, 511 N.Y.S.2d 767
(Sup.Ct. 1986), aff'd as modified, 147 A.D.2d 33, 541
N YS.2d 780 (App. Div. 1989); Rodriguez v. Altman & Co.,
N YL.J. May 7, 1984, at 14, Col. 2 (Sup.Ct.New York City)).
Only where the plaintiff has initially filed charges with the
State Division has the plaintiff been held to have elected the
remedy for the state claim, thereby barring state judicial
recourse. See, e.g., Keeley v. Citibank, N.A., 711 F. Supp. 157,
161 (S.D.N.Y. 1989); Leake v. Long Island Jewish Medical
Center, 695 F. Supp. 1414, 1418 (E.D.N.Y. 1988), aff'd,
869 F.2d 130 (2d Cir. 1989); Hunnewell v. Manufacturers Hanover
Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986); cf. Keister
v. Delco Products, 680 F. Supp. 281, 283 (S.D.Ohio 1987).
Additionally, the relevant statutory language calls for
application of the election of remedies provision where the
very "person claiming to be aggrieved" has filed an action with
the State Division or other local agency. Where the EEOC, and
not the aggrieved person, files with the State Division, the
statute does not apply; similarly, the aggrieved person's
filing with the EEOC, instead of the State Division or other
local agency, does not fall within the statute's terms.
Accordingly, since plaintiff never meaningfully relinquished
her state claim, and in any event New York's law on election of
remedies' being inapplicable in this Court in these
circumstances, DDB's motion to dismiss the state law claim —
the second claim for relief — is denied.