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SAMUEL v. MERRILL LYNCH PIERCE FENNER

May 2, 1991

JANET A. SAMUEL, PLAINTIFF,
v.
MERRILL LYNCH PIERCE FENNER & SMITH, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

This action is brought by plaintiff Samuel, an employee of defendant Merrill Lynch Pierce Fenner & Smith (hereinafter "Merrill Lynch"), for alleged violation and intentional violation of the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 621 et seq. and violation of Section 296 of the New York Executive Law. She alleges that defendant illegally failed to promote her on the basis of age discrimination. Defendant now moves to dismiss the state law claim for lack of subject matter jurisdiction, and for summary judgment and dismissal of the Complaint in its entirety.

BACKGROUND

Plaintiff bases her complaint on Merrill Lynch's alleged promotion of thirteen less-qualified but younger individuals over a six-year period from March 1981 through April 1987. The parties do not dispute the dates and occurrences of the thirteen promotions; accordingly, the facts and circumstances of these promotions will not be set forth here except as necessary to the discussion of the instant motions.

DISCUSSION

Motion to Dismiss 3rd Claim for Lack of Subject Matter Jurisdiction

Defendant moves to dismiss plaintiff's New York Executive Law claim on the basis that the election of remedies doctrine contained in Section 297(9) of New York Executive Law has been interpreted to bar state claims if plaintiff has filed her claim with the New York State Division of Human Rights ("SDHR"). Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (1st Dept), app. dismissed, 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989). In the instant case, plaintiff filed a charge of age discrimination with the federal Equal Employment Opportunity Commission (hereinafter "EEOC"), as required of her under the ADEA. In accordance with EEOC regulations, see 29 C.F.R. § 1601.13, and a work-sharing agreement between the EEOC and the SDHR, the EEOC cross-filed plaintiff's charge with the SDHR but retained jurisdiction over the charge to conduct an investigation on the merits. Because the EEOC did not act within 60 days on her charge, Samuel withdrew her charge from the EEOC, as was her right, and filed the instant action in federal court. The SDHR subsequently dismissed her claim, at her request, on the ground of "administrative convenience." Merrill Lynch challenged that order as unauthorized and violative of the election of remedies provisions of Executive Law § 297(9), but was denied relief. See Merrill Lynch Pierce Fenner & Smith, Inc. v. New York State Division of Human Rights and Janet A. Samuel, Index No. 25436/89 (Sup.N.Y.Co. June 22, 1990)). Because plaintiff no longer has a claim before the SDHR, the election of remedies doctrine contained in Section 297(9) of New York Executive Law does not bar her state claim, and the Court accordingly denies defendant's motion to dismiss the Third Claim.

Promotions which Plaintiff No Longer Disputes

The Court grants, as unopposed and for good cause shown, the motion to dismiss those aspects of plaintiff's claims relating to the promotions of Janette Samai in 1981; Katie Williams and Sephton Fraser in 1983; John Killeen in 1985; Debora Coe and Tania Schlesinger in 1986; and John Randolph, sometime during the period from 1984 through 1986.

Statute of Limitations: ADEA Claims

Promotions which occurred more than 300 days before plaintiff filed her administrative charge with the EEOC will ordinarily be time barred under the ADEA, 29 U.S.C. § 626(d)(2), 633(b); Miller v. International Tel. & Tel., 755 F.2d 20, 23 (2d Cir. 1985). This plaintiff filed her EEOC complaint on June 16, 1987. Accordingly, any claim based on a discriminatory denial of a promotion which occurred prior to August 20, 1986, will be time-barred under the ADEA, unless tolled.

Four of the six remaining alleged incidents of discrimination, the promotions of Howard, Paramo, Loughran, and Ferraro, occurred prior to August 20, 1986. However, plaintiff urges that defendant's course of conduct constitutes a "continuing violation," and thus that the filing of a complaint within 300 days after the last instance of such practice renders timely each of the charges based upon that practice. Plaintiff's Memorandum in Opposition to Motion for Summary Judgment, at 11 (citing Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y. 1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974); EEOC v. Home Insurance Co., 553 F. Supp. 704, 711-13 (S.D.N.Y. 1982)). Defendant argues that the alleged failures to promote were discrete, isolated incidents and therefore, there is no toll for the four failures to promote that occurred prior to August 20, 1986.

The Court agrees with defendant that these incidents do not constitute a "continuing violation." Only "compelling circumstances" will warrant application of the continuing violation exception. Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989) (quoting LaBeach v. Nestle Co., 658 F. Supp. 676, 687 (S.D.N.Y. 1987)). As decided by several district courts in this Circuit, a number of incidents of failure to promote cannot, as a matter of law, constitute a "series of related acts." Id. (citing Wingfield v. United Technologies Corp., 678 F. Supp. 973, 979-820 (D.Conn. 1988)). In this case, the desired positions themselves, although all falling under the general category of "supervisory," were located in different units of the operations area; the promotion decisions were made by two different individuals: and the decisions of whom to promote were based on different criteria, depending on the area involved. Plaintiff 3(g) Statement, ¶¶ 5, 7, 8, 9, 13; Defendant 3(g) ¶¶ 23, 26, 31, 39, 42, 49. Moreover, plaintiff does not claim that Merrill Lynch maintains a discriminatory promotion policy or system. To the contrary, she argues that in not promoting her, Merrill ...


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