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PATEL v. LUTHERAN MEDICAL CENTER

December 24, 1990

HARILAL PATEL, M.D., PLAINTIFF,
v.
LUTHERAN MEDICAL CENTER, INC., DEFENDANT.



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

MEMORANDUM AND ORDER

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 action.

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.

  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
  court.

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 therefore rejected.

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 limitations.

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 Complaint, states:

    28. The actions of Defendant in terminating
  plaintiff and for inducing Dr. Kumar to terminate
  his relationship with Plaintiff were in
  retaliation for Plaintiff's having filed charges
  of age discrimination

  with the EEOC and this suit and thus constituted
  willful violations of rights secured to Plaintiff
  by Sec. 623(d) of the ADEA.

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 ...


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