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United States District Court, Southern District of New York

February 2, 1990


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 deferred by 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 pendent thereto.*fn3

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 waste.*fn8

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 administrative 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.

So ordered.

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