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.
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:
See Ch. 342 of the Laws of 1991. The legislation, however,
expressly states that
it "shall take effect immediately and shall apply to complaints
filed with any federal commission on human rights on or after
such a date" (emphasis added).
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 law,
we are constrained to find that no state cause of action exists
for said claims in the circumstances before us.
It is well settled that in interpreting state law a federal
court must look to the rules of decisions as announced by the
state courts, and is "not free to reject the state rule merely
because it has not received the sanction of the highest state
court" even if it thinks the rule is unsound in principle or that
another is preferable. West v. A.T. & T. Co. (1940)
311 U.S. 223, 236-237, 61 S.Ct. 179, 183, 85 L.Ed. 139. As the Court in
Where an intermediate appellate state court rests its
considered judgment upon the rule of law which it
announces, that is datum for ascertaining state law
which is not to be disregarded by a federal court
unless it is convinced by other persuasive data
that the highest court of the state would decide
Id. at 237, 61 S.Ct. at 183 (emphasis added). Although we
express doubt as to the correctness of the Carter-Wallace
court's interpretation of § 279, see Olsen, 1990 WL at * 2,
1990 U.S.Dist. LEXIS at 7278, we cannot say that we are
convinced that the New York Court of Appeals would not have
adopted this interpretation as its own. Cf. Dapelo, 767 F. Supp.
at 52-53 (noting that Carter-Wallace addresses a novel issue of
state law and no other state court decision stands in opposition
to its holding); Guiffre v. Metropolitan Life Insurance Co.
(S.D.N.Y. 1989) 129 F.R.D. 71 (adopting Carter-Wallace as the
state's final interpretation of its own laws). Accordingly, we
are constrained to apply the First Department's interpretation of
the scope of the rights afforded plaintiffs under the state's
Human Rights Laws to the circumstances at hand. We therefore
grant defendant's motion to dismiss plaintiff's state claims for
failure to state a cognizable claim.
So to conclude, however, does not mean that plaintiff is
forever barred from pursuing her state claims in this judicial
forum. As the same court which issued the decision in
Carter-Wallace has more recently observed, under New York
Executive Law § 297(3)(c) a plaintiff may seek to have her state
claims dismissed by the DHR for administrative convenience. See
Eastman Chemical Products v. DHR (1st Dept. 1990) 162 A.D.2d 157,
556 N.Y.S.2d 571 (memorandum decision, before Kupferman,
J.P., and Sullivan, Asch, Wallach and Smith, JJ.) (noting that
the DHR may grant this request for the express reason of
the parties' election of remedies")*fn6; cf. 9 NYCRR
465-5(d)(2)(v); New York Administrative Code, Title IX. In the
event the DHR does grant such a request, § 297 expressly provides
that plaintiff is then free to pursue her state claims in any
court of competent jurisdiction, as if no complaint had ever been
filed with the state agency. See New York Executive Law §
297(9), supra n. 1.
Since it is axiomatic that we may exercise pendant jurisdiction
over cognizable state law claims, we therefore conclude that if
plaintiff files for a dismissal of her state claims before the
DHR within 30 days of this order, and if that agency decides to
grant her motion for reasons of administrative convenience,
plaintiff may make a timely motion to replead her state claims.