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NAGLE v. JOHN HANCOCK MUT. LIFE INS. CO.

July 15, 1991

ROBERT NAGLE, PLAINTIFF,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE CO., JOSEPH P. LORUSSO, AND DONALD E. MORRISON, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, District Judge.

  MEMORANDUM OPINION AND ORDER

Plaintiff Robert Nagle ("Nagle") filed this action on August 6, 1990, alleging that his employment with defendant John Hancock Mutual Life Insurance Company was terminated in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA" or "the Act") ("Count 1") and the age discrimination provisions of the New York State Human Rights Law, N.Y. Exec. Law § 296 ("Human Rights claim" or "Count 2"). Defendants move: (1) to dismiss the pendent state law Human Rights claim, Count 2, for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); or (2) for judgment on the pleadings on Count 2, pursuant to Fed.R.Civ.P. 12(c); and (3) for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. For the reasons set forth below, the court grants defendants' motion to dismiss Count 2, but denies defendants' motion for sanctions.*fn1

DISCUSSION

Defendants move to dismiss the complaint pursuant to Rule 12(b)(1), lack of subject matter jurisdiction or for judgment on the pleadings, pursuant to Rule 12(c). Because defendants move to dismiss in lieu of an answer, the court must rely solely upon the pleadings, must presume all factual allegations of the complaint to be true, and must draw all factual inferences in favor of the non-moving plaintiff. See 2A Moore, Moore's Federal Practice, ¶ 12.07 at 12-63 (1989); 5 Wright and Miller, Federal Practice and Procedure, § 1357 at 594-597 (1969).

Defendants' Motion to Dismiss

Under federal law, a person wishing to commence an age discrimination action in court must first file a complaint with the Equal Employment Opportunity Commission ("EEOC"). 29 U.S.C. § 626(d) (1985). In a state such as New York that has a law prohibiting age discrimination in employment and that has authorized a state agency to grant relief from such discriminatory practice, the EEOC may first refer the complaint to the state agency. 29 C.F.R. § 1626.9 (1990); 29 U.S.C. § 633(b) (1985).

New York requires parties claiming age discrimination to make a binding choice. They may pursue their state claim either directly through the courts or through the administrative agency. According to the Human Rights Law's election of remedies provision, N.Y.Exec. Law § 297(9) (McKinney's 1982) (the "election of remedies provision"), however, if the administrative route is chosen it provides the sole avenue of relief. The election of remedies provision states, in pertinent part:

  [a]ny person claiming to be aggrieved by an
  unlawful discriminatory practice shall have a
  cause of action in any court of appropriate
  jurisdiction for damages and such other remedies
  as may be appropriate, unless such person had
  filed a complaint hereunder [with the State
  Division of Human Rights] or with any local
  commission on human rights, . . .

  provided that, where the division has dismissed
  such complaint on the grounds of administrative
  convenience, such person shall maintain all rights
  to bring suit as if no complaint had been filed.

(emphasis added). Therefore, a party filing with the State Division of Human Rights ("SDHR"), is precluded from pursuing his or her state discrimination claim in court unless that claim is dismissed on the ground of "administrative convenience."

In this case, presuming the allegations in the complaint to be true, plaintiff filed his complaint with both the EEOC and the SDHR. Complaint ¶ 7 ("ROBERT NAGLE timely filed on September 2, 1989 a Charge of Discrimination with the New York Department of Human Relations [sic] and with the Equal Employment Opportunity Commission"). The SDHR never dismissed plaintiff's complaint on the ground of "administrative convenience." Therefore, his pendent state law claim is barred by the election of remedies provision.*fn2

Sanctions

Defendants move for sanctions pursuant to both Rule 11 and 28 U.S.C. § 1927 ("§ 1927"). Rule 11 requires that requires every pleading be signed by a party or his or her attorney. That signature

  constitutes a certificate by the signer that the
  signer has read the pleading, motion, or other
  paper; that to the best of the signer's knowledge,
  information, and belief formed after a reasonable
  inquiry it is well grounded in fact and is
  warranted by existing law or a good faith argument
  for the extension, modification, or reversal of
  existing law, and that it is not interposed for
  any improper ...

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