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September 25, 1990


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


In this employment discrimination claim arising under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000e-5 et seq., the defendants have moved for an order dismissing the plaintiff's second cause of action arising under the Age Discrimination in Employment Act of 1974. In addition the defendant has asked for Fed.R.Civ.P. Rule 11 sanctions against the plaintiff for causes of action asserted in the complaint but subsequently abandoned in the amended complaint.


The plaintiff in this case is a former union-represented employee with defendant Pan American World Airways, Inc. ("Pan Am"). Though she had worked for Pan Am for almost 20 years prior to her retirement, the claims she is bringing arise from the last ten months of her employment. During this time, she was working in defendant Betty Kwong's department processing worker's compensation claims. Suzann Hull, Kwong's supervisor, is also named as a defendant.

After the plaintiff's early retirement on February 1, 1988, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 17, 1988. Plaintiff was not represented by a lawyer at this time, though she had previously consulted with a lawyer on February 22, 1988. The intake form provided by the EEOC provides a checklist of reasons for the discrimination alleged, including race, sex, religion, national origin, age, retaliation, color and "other". Plaintiff checked the boxes marked race and color. In her affidavit submitted the same day, plaintiff set forth the specific nature of her complaint. Essentially, she alleged that Kwong discriminatorily subjected her to continuous harassment and intimidation relating to the backlog of plaintiff's work. Plaintiff alleged that of the other three workers in the office, only she was black, the other workers were white; and none of the other workers had been subjected to the same type of criticism and harassment. Plaintiff informed the EEOC in her complaint that she had retired "as a result of the unfair treatment" and that she "had planned to retire in 1989, upon completion of [her] 20th anniversary year. Due to the unfair treatment, [she] was forced to leave earlier, losing [her] traveling benefits."

Plaintiff first met with her present attorney on June 8, 1989, to discuss her case. On September 1, 1989, plaintiff's counsel wrote to the EEOC requesting that they issue a right to sue letter on plaintiff's behalf. This letter did not seek to amend the original complaint by adding an age discrimination claim. Without conducting an investigation of the claim, the EEOC issued a right to sue letter on September 8, 1989.

The plaintiff then filed a complaint in this Court asserting not only the race discrimination claim expressly brought to the EEOC's attention, but also an age discrimination claim pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-624 and 28 U.S.C. § 1331, 1343(a)(4); a claim under the New York Human Rights Law, Executive Law, § 297(9); and various pendent state tort law actions which can be characterized as intentional or negligent infliction of emotional distress.

The defendants now move to dismiss the ADEA claim for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). In addition, they move to dismiss the state tort claims on two grounds. First, they claim these claims have been preempted by the Railway Labor Act; second, they contend that they fail to state a claim as a matter of law and should therefore be dismissed under Fed.R.Civ.P. 12(b)(6). In connection with their motion to dismiss, the defendants have also requested that sanctions be imposed on the plaintiff's attorney pursuant to Fed.R.Civ.P. 11. In response, the plaintiff opposes the dismissal of the ADEA claim and cross-moves to amend her complaint pursuant to Fed.R.Civ.P. 15(a). In her proposed amended complaint, the plaintiff has eliminated the state tort causes of action. Thus, the questions presented to the Court are whether the Court has subject matter jurisdiction over the ADEA claim, and whether Rule 11 sanctions should be imposed upon plaintiff's attorneys for asserting the state tort causes of action in the original complaint.

I. Age Discrimination Claim

Generally, the timely filing of an ADEA action with the EEOC is a jurisdictional condition precedent to the filing of a suit in federal court. McPartland v. American Broadcasting Co., Inc., 623 F. Supp. 1334, 1339 (S.D.N.Y. 1985). Under 42 U.S.C. § 2000e-5(e), the time for filing an EEOC complaint is within 180 days of the alleged unlawful employment practice. Under limited circumstances, a claimant will be allowed to amend her EEOC complaint to cure technical defects or omissions, and this amendment will relate back to the date of the original filing. Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985). In deciding whether to allow amendment, a court will look to see whether the additional claim sought to be asserted can reasonably be expected to grow out of the charge of which the EEOC was made aware. See Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978); Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979), rev'd on other grounds, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).

For example, in Lamont v. Forman Bros., Inc., 410 F. Supp. 912 (D.D.C. 1976), the plaintiff filed a claim with the EEOC claiming that he was discriminated against on the basis of his race when he was terminated from and his job was replaced by a white man. In his subsequent lawsuit, the plaintiff tried to bring a claim of discrimination based on religion. The court refused to hear this claim because it found that the religion claim could not reasonably be expected to grow out of the EEOC investigation of the race claim, and that his allegation provided no basis for a claim of discrimination based on factors other than race or color. Lamont, 410 F. Supp. at 917. Likewise, in Newton v. Kroger, 501 F. Supp. 177 (E.D.Ark. 1980), the court found that the plaintiff had only alleged racial discrimination and that it was unlikely that a sex discrimination claim would have arisen from the investigation of that charge. Newton, 501 F. Supp. at 178.

There are, however, a number of cases where a plaintiff was allowed to bring a claim other than that originally filed with the EEOC. For instance, in Avagliano v. Sumitomo Shoji America, 614 F. Supp. 1397 (S.D.N.Y. 1985), the plaintiff was allowed to bring a race discrimination charge when she had originally asserted only national origin and sex discrimination claims to the EEOC. Avagliano, 614 F. Supp. at 1404. The court found that the race discrimination claim was merely a refinement of the national origin claim, and that the two claims are identical in kind. Id. at 1403.

Nevertheless, the courts in this circuit have been reluctant to hear claims that were not originally filed with the EEOC. Furthermore, they have not been willing to afford a claimant's original filing such broad interpretation that virtually any type of alleged discrimination can be included in a subsequent lawsuit. See, e.g., Kawatra v. Medgar Evers College of the City of New York, 700 F. Supp. 648 (E.D.N.Y. 1988); Littman v. Firestone Tire & Rubber Co., 709 F. Supp. 461, 467 (S.D.N Y 1989); McPartland v. American Broadcasting Cos., Inc., 623 F. Supp. 1334, 1339 (S.D.N.Y. 1985).

Initially the Court notes that this case is distinguishable from cases which find that a national origin claim may be reasonably related to race or religion claims. See, e.g., Kahn v. Pepsi Cola Bottling Group, 526 F. Supp. 1268, 1270 (E.D.N Y 1981) (Nickerson, J.). Race, or even religion, may sometimes be correlated with national origin because of certain historical or demographic facts. However, plaintiff does not even attempt to explain why race discrimination and age discrimination are likely to go hand-in-hand. Therefore, there is no reason to expect that ...

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