The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
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.
Motion to Dismiss 3rd Claim for Lack of Subject Matter
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 ...