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 reasonable EEOC investigations into garden variety
race claims will result in the addition of age discrimination
claims as a matter of course.
Moreover, the facts given by plaintiff to the EEOC in her
race claim were not sufficient to apprise the EEOC that a
possible age claim was also lurking in the case. When plaintiff
filed her original complaint with the EEOC on March 17, 1988,
she indicated only that she had been discriminated against on
the basis of race and color. Her detailed affidavit fully
describes the alleged racially discriminatory circumstances and
working conditions which led to her early retirement. At no
time, either in this affidavit or in any subsequent amendments
to the EEOC complaint, did she claim that she was discriminated
against because of her age. Although she was not accompanied by
a lawyer at the time she filed the complaint, she had
previously consulted an attorney regarding this matter, and in
plaintiff's papers in this case she admits that the subject of
age discrimination was never brought up. The Court therefore
finds that the age discrimination claim was not implicitly
contained in plaintiff's race discrimination charges made to
the EEOC, and the allegation that plaintiff retired earlier
than she would have because of racial discrimination does not
ipso facto raise an inference of age discrimination. Merely
breathing the phrase "early retirement" does not alert the EEOC
that it should investigate a possibility of age discrimination.
The attempt to assert an age discrimination claim at this stage
of the litigation appears to be nothing more than post-hoc
"creative lawyering." Accordingly, the age discrimination cause
of action does not relate back to the date of the original
filing and is hereby dismissed.
Rule 11 of the Federal Rules of Civil Procedure provides that
sanctions "shall" be imposed by the Court if an attorney files
a pleading that is not "warranted by existing law or a good
faith argument for the extension, modification or reversal of
existing law." Fed.R.Civ.P. 11 (emphasis added). The rule
imposes an affirmative duty on lawyers to conduct a "reasonable
inquiry into the viability of a pleading before it is signed."
International Shipping v. Hydra Offshore, Inc., 875 F.2d 388,
390 (2d Cir. 1989). Whether an adequate investigation into the
law has been made is judged under a standard of objective
reasonableness. Eastway Constr. Corp. v. City of New York,
762 F.2d 243, 253-54 (2d Cir. 1985) — that is, Rule 11 sanctions
are required if a reasonable pre-filing inquiry by a lawyer
would lead to the conclusion that a claim had no chance of
success. O'Malley v. New York City Transit Authority,
896 F.2d 704, 706 (2d Cir. 1990).
In the plaintiff's original complaint, she asserted various
common law tort claims which she subsequently withdrew in her
amended complaint once defendants' motion to dismiss had been
filed. It should first be noted that the Supreme Court has
recently decided that voluntary dismissal cannot stave off
warranted sanctions. Cooter & Gell v. Hartmarx Corp., ___ U.S.
___, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).
The law is well-settled that state law torts arising from
employment-related disputes in the airline industry have been
preempted by the Railway Labor Act ("RLA") adjustment board
procedures (45 U.S.C. § 151 et seq.), and a reasonable
inquiry into this matter by plaintiff's attorney would have
revealed the law in this area. See Campbell v. Pan American
World Airways, 668 F. Supp. 139 (E.D.N.Y. 1987); Independent
Union of Flight Attendants v. Pan American World Airways,
789 F.2d 139, 141 (2d Cir. 1986).*fn1 Additionally, plaintiff's
attorney made no reasonable argument for the extension,
modification or reversal of the law as it currently stands.
Thus, the Court finds Rule 11 sanctions to be appropriate in
this case regarding the state law tort claims, i.e. the fourth
and fifth causes of action in plaintiff's original complaint.
Sanctions, however, will not be imposed with regard to
plaintiff's second cause of action, i.e., the age
discrimination claim. The duty to conduct a reasonable
pre-filing inquiry into the law does not require that the
signer ultimately be proved correct in his view of the law.
Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir.
1986); Robinson v. National Cash Register Co., 808 F.2d 1119,
1127 (5th Cir. 1987). Given that there are some situations
where an amendment will be held to relate back to the date of
the original filing of the EEOC complaint, it is possible that
a reasonable attorney would have believed that the age
discrimination claim would not be dismissed.
Upon the filing of an affidavit with the Court detailing the
time and costs expended by defendants' attorney in defending
against and moving to dismiss the fourth and fifth causes of
action in plaintiff's original complaint, the Court will
determine the appropriate sanctions against the plaintiff's
In light of the foregoing, the plaintiff's cause of action
under the Age Discrimination in Employment Act is DISMISSED;
and sanctions pursuant to Fed.R.Civ.P. 11 are GRANTED to
defendant, the amount of which to be determined upon