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September 4, 1991


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


This action arises out of a claim that the defendant violated provisions of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Invoking pendant jurisdiction, the complaint also alleges that the defendant's actions violated provisions of New York's Human Rights Laws, New York Executive Law § 296, et seq. Pursuant to Fed.R.Civ.P. 12(b)(6), defendant now moves to dismiss the state law claims for failure to state a claim for which relief can be granted. For the reasons that follow this motion is granted.


Plaintiff was an employee of the defendant's during the years 1974 to 1989. On March 17, 1989 defendant notified plaintiff in writing that it was terminating her employment effective June 30, 1990. Plaintiff was 43 years old at this time. By this complaint, plaintiff alleges that defendant discharged her from employment "because of her age" in violation of both state and federal law.

Pursuant to the jurisdictional requirements of the ADEA*fn1, on October 24, 1989 plaintiff filed a claim of age discrimination with the Equal Employment Opportunity Commission ("EEOC"), the federal agency empowered to enforce Title VII of the Civil Rights Act of 1964. Pursuant to a "Worksharing Agreement" which the EEOC has with the New York State Division of Human Rights ("DHR"), on November 3, the EEOC automatically filed plaintiff's state claims with the DHR*fn2. On November 2, 1990 the EEOC issued plaintiff a right to sue notice and on March 13, 1991 plaintiff commenced the instant action. To date, the DHR has neither dismissed plaintiff's claims nor has it taken any action to prosecute them.

Under New York State Executive Law § 297(9) ("§ 297") once a person has filed a complaint with a state administrative agency that person is deemed to have selected a non-judicial forum for his/her grievances, and accordingly "shall [not] have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate"*fn3.

In support of the instant motion to dismiss, defendant contends that since plaintiff's state claims have been filed with the DHR, § 297 bars plaintiff from proceeding on those claims in this court. Defendant cites the decision in Scott v. Carter-Wallace (1st Dep't 1989) 147 A.D.2d 33, 541 N.Y.S.2d 780, app. dism.*fn4, 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989) to support the conclusion that § 297 must be so construed. In opposition, plaintiff asserts that the Carter-Wallace court held only that the filing of a claim with the DHR barred plaintiff from proceeding in state court; it did not, as it could not, determine what effect such a filing would have on a federal court's powers to hear plaintiff's state claims under the doctrine of pendant jurisdiction. Plaintiff contends that since she did not personally choose to file her claims with the DHR, we should not construe § 297 as a bar to her proceeding with these claims in this forum.

After we heard oral argument on this motion, by letter dated July 23, 1991 plaintiff informed us that on July 15 the New York State Legislature amended § 297 and effectively overruled the decision in Carter-Wallace*fn5. As amended § 297 provides, in relevant part, that:

  A complaint filed by the equal employment opportunity
  commission to comply with the requirements of
  42 U.S.C. § 2000e-5(c) shall not constitute the filing
  of a complaint within the meaning of this


Since plaintiff's state law claims were filed with the DHR in November 1989, it is evident that the recent amendment to § 297 has no relevance to the instant case. Accordingly, we limit our discussion to the question presented by this motion, namely, what effect, if any, does the decision in Carter-Wallace have on our power to hear plaintiff's state law claims.

In Carter-Wallace the Appellate Division First Department interpreted § 297 as a bar to a plaintiff's pursuing a remedy in state court for violations of the New York Human Rights Laws if a complaint alleging such violations had been filed with the DHR. Writing for the court Judge Wallach, overruling his own prior decision in Rodriquez v. B. Altman & Co. (Sup.Ct.N.Y.Co., 1984) N.Y.L.J., May 7, 1984 p. 14, col. 2 (Wallach, J.), expressly determined that the § 297 bar applies regardless of whether or not the decision to file such a complaint with the DHR was made by the grievant personally, or automatically by the EEOC. See 541 N.Y.S.2d at 782-783.

So stated, contrary to the arguments of plaintiff, the question before us is not a jurisdictional one; the question is whether or not a state cause of action exists after plaintiff's claims were filed with the DHR. See Dapelo v. Banco Nacional de Mexico (S.D.N.Y. 1991) 767 F. Supp. 49 (Martin, J.). Since it is beyond dispute that plaintiff's Human Rights Law claims were filed with the DHR in November 1989, if Carter-Wallace is controlling ...

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