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.
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).
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)
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 ...