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March 16, 1990


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


Plaintiff, Paul W. Martel, sues his former employer, Dean Witter Reynolds, Inc., for alleged age discrimination pursuant to 29 U.S.C. § 621 et seq. (1985 & Supp. 1989), the Age Discrimination in Employment Act of 1967. He invokes the court's pendent jurisdiction to allege analogous violations of the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 1982).

Dean Witter moves for summary judgment on the pendent claim, arguing that plaintiff's pursuit of state administrative remedies bars subsequent judicial proceedings. Plaintiff opposes the motion, noting that the administrative claim was never addressed on the merits, but dismissed for convenience.

For the reasons stated herein, the court denies the motion for summary judgment.


For purposes of this motion, the court views the facts in the light most favorable to plaintiff. Paul W. Martel, currently fifty-four years of age, was first employed by Dean Witter in April 1984. Over the next five years, he served in various sales positions, rising ultimately to Senior Institutional Salesperson and First Vice President. Without prior criticism of his work or other advance warning, plaintiff was told on November 10, 1988 that he was terminated effective the following April. Plaintiff was replaced by an individual approximately forty years old.

On April 21, 1989, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") charging Dean Witter with having fired him based on his age and with engaging in a pattern and practice of terminating older sales employees. Such a filing is a statutory prerequisite to the commencement of a federal court action alleging age discrimination. See 29 U.S.C. § 626(d) (1985). The complaint was forwarded to the New York State Division of Human Rights for initial processing pursuant to 29 C.F.R. § 1626.9 (1989).

On July 12, 1989, Martel commenced this action alleging age discrimination in violation of both federal and state law. On August 21, 1989, Dean Witter moved for summary judgment on the pendent claim, citing plaintiff's election of a state administrative forum for its resolution. Plaintiff's counsel promptly wrote to the Division of Human Rights requesting that the complaint be dismissed on grounds of administrative convenience. The Division granted the request on September 13, 1989, finding that "processing the complaint will not advance the State's human rights goals in as much as the matter is presently being litigated in Federal Court in which forum all the issues concerning the question of age discrimination can be resolved."


This case presents another example of the "uneasy relationship" between the procedural requirements of federal statutes aimed at insuring equality in employment and the election of remedies provision of the New York State Human Rights Law. See, e.g., Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 501 (S.D.N.Y. 1989).

Under federal law, a party wishing to commence an age discrimination action in court must first file a complaint with the EEOC. 29 U.S.C. § 626(d) (1985). In a state, such as New York, which has a law prohibiting age discrimination in employment and which has authorized a state agency to grant relief from such discriminatory practice, the EEOC automatically refers the complaint, in the first instance, to the state agency. 29 C.F.R. § 1626.9 (1989); 29 U.S.C. § 633(b) (1985).

New York, on the other hand, provides parties claiming age discrimination with a choice. They may pursue their state claim either directly through the courts or through the administrative agency. Once the administrative route is chosen, however, it provides the sole avenue of relief. N.Y. Exec.L. § 297(9) (McKinney 1982).

Thus, a party seeking to take advantage of the protections afforded against age discrimination under both federal and New York state law is presented with an anomalous situation. He cannot present his federal claim in court until he has pursued relief through the EEOC. Once he does so, however, the EEOC will automatically refer his complaint to the State Division of Human Rights, thereby precluding him from seeking court review of his state law claim. See Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. at 501.

A number of federal courts, confronted with this situation, have nevertheless permitted a plaintiff to pursue both his federal and state claims in a single action, finding that "the required reference to the S.D.H.R. by the E.E.O.C. is not an election by the individual plaintiff." Gibson v. American Broadcasting Co., Inc., 49 Fair Empl. Prac. Cas. (BNA) 1506, 1986 WL 10290 (S.D.N.Y. 1986); accord Tasaka v. DDB Needham Worldwide, Inc., 729 F. Supp. 1014 (S.D.N.Y. 1990); O'Brien v. King World Prods., Inc., 669 F. Supp. 639, 640 (S.D.N.Y. 1987); Kaczor v. City of Buffalo, 657 F. Supp. 441, 447 ...

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