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June 14, 1990


The opinion of the court was delivered by: Telesca, Chief Judge.



Plaintiff Carmen Lippa originally commenced this action under Title VII, 42 U.S.C. § 2000e et seq., the Equal Pay Act, 29 U.S.C. § 206(d), 215 and 216, and New York Human Rights Law, alleging that she had suffered sex, marital, and retaliatory discrimination during the course of her employment with defendant General Motors Corporation. The defendants thereafter moved to dismiss plaintiff's Human Rights Law claim. By Decision and Order dated March 8, 1990, I found an exercise of pendent jurisdiction over plaintiff's state law claim unwarranted and accordingly granted defendants' motion.*fn1 I also noted at that time that plaintiff's filing of her Title VII claim with the EEOC "effectively constitute[d] an election of remedies under . . . [New York Human Rights Law] sufficient to bar entertainment of her state law claim." Lippa v. General Motors Corp., A.C. Rochester Products, Div. of General Motors Corp., Steven Medwid, Individually and as General Supervisor of Fabrication A.C. Rochester Products, No. 89-1200T, slip op. at 2, (W.D.N.Y. March 8, 1990). The plaintiff now requests reconsideration of that decision and has moved to alter or amend judgment. For the reasons discussed below, the plaintiff's request for reconsideration is granted and her motion to alter or amend is denied.


The underlying facts of this case need only be stated briefly here and, for purposes of this decision only, are taken as alleged in plaintiff's complaint. See J. Moore, 3A Moore's Federal Practice 18.07, at 18-67 (determination as to exercise of pendent jurisdiction must be made on the facts as pleaded). Plaintiff Carmen Lippa is a white female who, at all relevant times to this action, has been an employee of defendant A.C. Rochester, a Division of defendant General Motors Corporation ("General Motors"). Defendant Steven Medwid is also employed by General Motors as General Supervisor of Fabrication of A.C. Rochester Products and is the plaintiff's supervisor.

As her supervisor, plaintiff claims that defendant Medwid has discriminated against her on the basis of her sex, marital status and in retaliation for her complaints of employment discrimination. In support of these allegations, plaintiff claims that Medwid inappropriately inquired into her sexual preference during the course of an annual review, improperly reassigned her from the day to the evening shift despite her seniority and allegedly satisfactory performance, and effectively denied her a merit raise by causing her to be placed in a "low performers" category.

The plaintiff also claims that, on at least one occasion, she has been reprimanded as to the impropriety of her dress while male co-workers similarly dressed have not, and has since been subjected to periodic performance counselings in retaliation for her complaints. She further alleges that at various times during her employment with the defendants, she has managed more responsibility but has received less pay than her male counterparts.

In December of 1988, plaintiff filed a complaint with the New York State Division of Human Rights alleging that General Motors had discriminated against her on the basis of sex with respect to the terms and conditions of her employment. After retaining her current attorney, plaintiff filed an amended discrimination complaint with the Division which expanded the factual allegations of the original complaint, added A.C. Rochester Products and Medwid as respondents, and alleged additional claims for marital and retaliatory discrimination. Pursuant to plaintiff's request, the Division dismissed her complaint for "administrative convenience."

General Motors thereafter commenced an Article 78 proceeding to reverse the Division's decision.*fn2 The defendants also moved before this Court for an order dismissing plaintiff's Human Rights Law claim, or alternatively, staying the federal action pending resolution of the Article 78 proceeding. By Decision and Order dated March 8, 1990, I granted defendants' motion to dismiss, finding the likelihood of jury confusion too great to warrant entertaining plaintiff's state claim. I also noted at that time my willingness to adopt the First Department's reasoning in its recent decision in Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (1st Dep't 1989), appeal dismissed, 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989), holding that this court lacked subject matter jurisdiction to entertain plaintiff's state law claim under the Human Rights Law election of remedies provision. See N Y Exec.Law § 297(9) (McKinney 1982). As the parties did not have an opportunity to fully brief this issue prior to my decision, I granted plaintiff's request for reargument.


1. Election of Remedies

The reasoning in Scott is predicated upon notions of equity and logic that follow from a thoughtful consideration of the interrelationship between Title VII and New York State's Human Rights Law, N.Y.Exec.Law § 290, et seq. (McKinney 1982).

Under Title VII, claimants of employment discrimination are statutorily required to seek relief under applicable state or local law before filing a complaint with the Equal Opportunity and Employment Commission (EEOC). 42 U.S.C. § 2000e-5[c]. Were the EEOC to construe this requirement strictly, no charge of employment discrimination would be entertained unless it was first filed with the appropriate state or local agency. In practice, however, the EEOC has developed and the Supreme Court has approved, see Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), a system by which the Commission refers complaints to the appropriate local agency where they have been filed prematurely prior to exhaustion of state or local remedies.*fn3 See 29 C.F.R. § 1601.13. As the First Department noted in Scott, "[t]his system of referral and deferral insures compliance with procedural requirements not likely to be appreciated by most grievants." Scott, 147 A.D.2d at 35, 541 N.Y.S.2d 780; see also Pullman Co., 404 U.S. at 527, 92 S.Ct. at 619.

Under New York's anti-discrimination statute, an aggrieved party suing under state law must elect either an administrative or judicial remedy for alleged discrimination. N.Y.Exec.Law § 297(9); Scott, 147 A.D.2d at 35, 541 N.Y.S.2d 780; Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y. So.2d 887, 406 N.E.2d 744 (1980). A grievant may accordingly file her claim with any court of appropriate jurisdiction or with the New York State Division of Human Rights, but not both. Once she files with the State Division, she is barred from pursuing her claim in state court. The only exception arises where the proceeding before the State Division is dismissed on the ground of "administrative convenience." N.Y. Exec.Law § 297(9). Where the State ...

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