The opinion of the court was delivered by: Glasser, District Judge:
Plaintiff brings this action for age discrimination under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et
seq., New York Human Rights Law, Exec.Law § 296 et seq., and
under state common law for tortious interference with contract.
Plaintiff alleges that he was employed by Lutheran Medical
Center (LMC) as Chief of its Ambulatory Services Clinic until
he was informed on June 23, 1987 of his termination effective
July 28, 1987. Plaintiff alleges that he was harassed and
terminated because of his age, and that he filed complaints on
June 15, 1987 and July 6, 1987 against LMC with the Equal
Employment Opportunity Commission (EEOC) based on age
discrimination. He further alleges that in retaliation for his
bringing a claim, LMC lured his employee, Dr. Kumar, from his
business relationship with plaintiff, and that he filed a
charge with the EEOC on March 29, 1989 for this retaliatory
His complaint alleges six causes of action. The first three,
not at issue in this motion, are pursuant to the ADEA. The
fourth cause of action is brought pursuant to the ADEA for
retaliation by tortious interference with contract. The fifth
cause of action is brought under New York Human Rights Law,
Exec.Law § 296, a state employment discrimination statute. And
the sixth cause of action is for common law tortious
interference with contract. This motion to dismiss, based on
multiple grounds, is aimed at part of the fourth and the entire
fifth and sixth causes of action. Having evaluated each of
those grounds, for the reasons below the court grants
defendant's motion as to the fourth and sixth causes of action,
and denies the motion as to the fifth.
I. Prior State Proceeding.
Defendant first moves to dismiss that portion of plaintiff's
fourth cause of action which alleges that defendant retaliated
against him for bringing age discrimination
charges by interfering with his employment contract with Dr.
Kumar, on the ground that it is barred for plaintiff's failure
to first bring this claim in a state proceeding. ADEA § 14(b),
29 U.S.C. § 633(b), provides that "no suit may be brought under
section 626 of this title before the expiration of sixty days
after proceedings have been commenced under the State law."
Defendant is quite correct that the Second Circuit has
"confirmed the need for the commencement of state proceedings
as an essential prerequisite to the institution of a civil
action in a federal court under ADEA." Defendant's Memorandum,
at 6. However, the Second Circuit has also explicitly held that
once a claim is brought before the proper state agency, a
plaintiff need not file a second claim with such agency in
order to assert that second claim in federal court if the claim
is "reasonably related" to the initial claim. Goodman v.
Heublein, Inc., 645 F.2d 127, 131 (2nd Cir. 1981). In that
case, the court held:
Although § 14(b) of the ADEA, 29 U.S.C. § 633(b)
(1976), requires a claimant to file a complaint
with the appropriate state agency before proceeding
in a federal court, Oscar Mayer & Co. v. Evans,
441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the
section is to be construed to accord with the
similar requirements of § 706(c) of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(c)
(1976), 441 U.S. at 756, 99 S.Ct. at
2071, Under Title VII, we have held that a claimant
need not file additional claims with the federal
administrative agency when those claims, arising
subsequent to the initial filing are reasonably
related to the allegations of an initial claim that
was properly filed. Kirkland v. Buffalo Bd. of Ed.,
622 F.2d 1066 (2nd. Cir. 1980). Similarly here, we
conclude that [plaintiff], having brought his age
discrimination claim to the state agency, did not
have to file a second claim with that agency in
order to assert his retaliation claim in federal
Id. Defendant concedes that the initial claim was properly
filed.*fn1 On the issue of what constitutes "reasonably
related," Kirkland provides guidance. In that case, plaintiff's
later claim, which the court permitted to be litigated, was
found to be "reasonably related" when it was "in retaliation
for [plaintiff's] initiation of litigation" over the employment
discrimination claim. Kirkland v. Buffalo Bd. of Educ.,
622 F.2d 1066, 1068 (2d Cir. 1980). Since Patel's claim of tortious
interference with contract is said in his fourth cause of
action to be in retaliation for his filing charges of age
discrimination with the EEOC, under Kirkland it is reasonably
related. Thus, the court's holding in Goodman v. Heublein
applies in this case to obviate the requirement of a prior
state filing on this later claim. This ground for dismissal is
II. Statute of Limitations.
a. The ADEA Statute of Limitations on Civil Actions.
Defendant next moves to dismiss the retaliation claim under
§ 626(d) on the ground that it is barred by the ADEA statute of
Limitation of actions under the ADEA is governed by 29 U.S.C. § 255,
259. 29 U.S.C. § 626(e). Section 255 provides that an
action under the ADEA must be commenced "within two years after
the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced within
three years after the cause of action accrued." 29 U.S.C. § 255.
Plaintiff, in his fourth cause of action, First Amended
Because "willfulness" is alleged, the claim is subject to the
three year statute of limitations. The act complained of
allegedly occurred in June or July 1988, and the complaint was
filed on August 27, 1990. The complaint does, therefore, state
a timely cause of action for retaliation.
b. 300-Day Limit on Filing of EEOC Claims.
Defendant also contends that plaintiff's fourth cause of
action is barred as untimely because no charge was filed with
the EEOC within 300 days of the alleged discrimination,
pursuant to 29 U.S.C. § 626(d)(2). However, under the Second
Circuit's holding in Kirkland v. Buffalo Bd. of Educ.,
622 F.2d 1066, 1068 (2nd Cir. 1980), no subsequent claim need be filed
with the EEOC when the basis of a subsequent claim would be
reasonably related to that of an earlier claim timely filed:
Under Title VII, we have held that a claimant need
not file additional claims with the federal
administrative agency when those claims, arising
subsequent to the initial filing, are reasonably
related to the allegations of an initial claim
that was properly filed.
Goodman v. Heublein, 645 F.2d at 131 (noting that § 14(b) of
the ADEA, 29 U.S.C. § 633(b), "is to be construed to accord
with the similar requirements of § 706(c) of Title VII of the
Civil Rights Act of 1964.") Thus, plaintiff did not have to
file at all with the EEOC on the retaliation charge, let alone
within 300 days. This basis for dismissal of part of the fourth
cause of action is therefore rejected.
III. Failure to State a Claim for Retaliation under the ADEA.
Defendant next argues that tortious interference with the
Patel-Kumar contract is not cognizable as a discriminatory
practice under the ADEA. Defendant's argument has two elements.
First, defendant argues that the ADEA only bars discriminatory
acts against employees, and that since the employment
relationship between plaintiff and defendant was terminated on
July 28, 1987, no cause of action can lie. Second, defendant
argues that even if a cause of action could be ...