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
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.
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 ...