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February 15, 1990


The opinion of the court was delivered by: Munson, District Judge.


Plaintiff commenced this action on July 18, 1989 contending that he was unlawfully discharged by St. Joseph's Hospital and Health Center (St. Joseph's) in violation of the first and fourteenth amendments to the U.S. Constitution, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Section 296 of the New York Executive Law. Defendants have moved to dismiss plaintiff's entire complaint under Rule 56. The court heard oral argument on November 3, 1989 in Syracuse, New York and reserved decision on defendants' motion.


Plaintiff was employed by St. Joseph's as an operating engineer from 1985 until his termination in January of 1988 at which time he was 59 years old. The incident that gave rise to plaintiff's termination occurred in December of 1987 when plaintiff was assigned to replace an ethylene oxide tank.*fn1 Employees assigned to perform this function are required to wear a monitor badge which is designed to measure an individual's exposure to ethylene oxide. After determining that there was a leak, plaintiff removed the badge and placed it near the leak. He then replaced the badge on his shirt and made note of the leak in his logbook.*fn2 According to St. Joseph's, plaintiff did not record in his log book, however, the manner in which he exposed the badge, nor did he immediately inform his supervisors of this action. St. Joseph's contends that it was only after the test results of the badge were determined to be within OSHA's limits for short term exposure that plaintiff informed St. Joseph's of his conduct. St. Joseph's believed that plaintiff's purpose in placing the badge near the leak was to have it appear that he had inhaled a large dose of ethylene oxide so that he could assert a fraudulent injury claim. St. Joseph's terminated plaintiff asserting as a basis this claimed safety violation. (Defendants' Exhibit B). Plaintiff contends that the actual reason why St. Joseph's terminated his employment was due to his age. In this regard, plaintiff asserts that a co-worker under the age of 30 entered the tank room with him without even wearing a badge and was neither disciplined nor discharged. (Complaint at ¶ 22).

On February 19, 1988, plaintiff, proceeding pro se, filed a complaint with the New York State Division of Human Rights (the Division) contending that St. Joseph's termination of his employment constituted an unlawful discriminatory practice on the basis of age in violation of Article 15 of the New York Executive Law. The matter before the Division was still pending at the time plaintiff, through counsel, commenced this action by filing a complaint on July 18, 1989.

Defendants initially moved for partial summary judgment on August 11, 1989 seeking dismissal of plaintiff's claim under the first and fourteenth amendments, plaintiff's state law claim, and plaintiff's punitive and compensatory damage claims under the ADEA. With respect to plaintiff's fourteenth amendment claim, defendants argued that summary judgment was warranted because there was no state action. Defendants also contended that there was no subject matter jurisdiction for plaintiff's state law claim because under section 297(9) of the New York Executive Law once plaintiff filed a charge of age discrimination under State law with the Division, no subsequent court action involving the state claim was permissible. Finally, St. Joseph's asserted that plaintiff's requested relief for punitive and compensatory damages was not permitted under the ADEA.

On August 14, 1989, plaintiff's attorney made a telephone call to the Division seeking a final decision. Four days later, the Division issued a decision in which it concluded that there was no probable cause to believe that St. Joseph's engaged in unlawful age discrimination.*fn3 After the Division's determination, defendants moved to dismiss plaintiff's entire complaint on the grounds that under the Supreme Court's decision in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Division's determination has preclusive effect and therefore acts to bar plaintiff's ADEA action.*fn4


As noted, this action was commenced on July 18, 1989. The Division did not make its determination until August 18, 1989. A preliminary question thus presents itself: Does the Division's determination have any binding effect on this court given that it was rendered subsequent to the commencement of this action?

Section 633(a) of the ADEA provides that "[n]othing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of an action under this chapter such action shall supersede any State action." (emphasis added). The legislative history to section 633(a) indicates that "commencement of an action under this act shall be a stay on any State action previously commenced." H.R. No. 805, 90th Cong., 1st Session, reprinted in, 1967 U.S.Code Cong. & Ad.News 2213, 2219, 2224 (emphasis added); see also Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044, 1049 n. 7 (2d Cir. 1982). Given this mandatory language, it would appear that Congress intended that upon the filing of a federal ADEA action the State proceeding is automatically stayed without any need for the plaintiff to seek an order from the federal court directing the state agency to suspend any further consideration of the state age discrimination charge.

Section 633(b) provides in relevant part as follows:

  In the case of an alleged unlawful practice
  occurring in a State which has a law prohibiting
  discrimination in employment because of age and
  establishing or authorizing a State authority to
  grant or seek relief from such discriminatory
  practice, no suit may be brought under section
  626 of this title before the expiration of sixty
  days after proceedings have been commenced under
  the State law, unless such proceedings have been
  earlier terminated. . . .

Thus, if a state has enacted laws prohibiting age discrimination in employment and has established an agency authorized to provide relief from such discrimination, that state is deemed a "deferral state" and under section 633(b) an aggrieved party must commence a proceeding before such agency sixty days prior to initiating a federal action. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072-73, 60 L.Ed.2d 609 (1979) (holding that "resort to administrative remedies in deferral States by individual claimants is mandatory, not optional"). If the state agency resolves the age discrimination claim to the satisfaction of the aggrieved party, there is, of course, no need to resort to the federal courts. If, however, the state agency has not rendered a final decision within sixty days from the commencement of that proceeding, under section 633(b) the aggrieved party may then institute a federal action which under section 633(a) acts to stay any further consideration by the state agency until termination of the federal action.

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