determination unless she notified the SDHR that she desired to utilize the SDHR's administrative procedures.
The defendants contend, however, that plaintiff refused to "submit to state jurisdiction" thus derailing the EEOC filing process, when plaintiff's counsel stated the following in a letter to the EEOC dated October 3, 1990:
Accordingly, only the EEOC is to assert jurisdiction over this charge. Under no circumstances is the EEOC to defer this charge to the jurisdiction of the SDHR, or allow the SDHR to assert, or attempt to assert, jurisdiction over this matter.
I am aware that pursuant to Section 706(d) of Title VII, 42 U.S.C. Subsection 2000e-5(d), the EEOC must refer the charge to the SDHR. In doing so, however, the EEOC is to retain jurisdiction, and the SDHR is to immediately waive the normal 60-day referral period, dismiss the charge for "administrative convenience" if necessary, and forthwith return the charge to the EEOC for investigation and processing.
(Letter dated October 3, 1990, from plaintiff's counsel to the EEOC).
Under Title VII the appropriate state agency must be afforded a bona fide first opportunity to act upon a claim over which it has jurisdiction, before a claimant may maintain an action in federal court. New York Gaslight, 447 U.S. at 63-65. The referral to the state agency is not simply a token gesture -- the state agency must be given the first opportunity to resolve the matter. Once a claimant files a charge with the EEOC, "submitting to state jurisdiction" is not at plaintiff's option. Thus, the plaintiff's counsel's "instruction" to the EEOC was simply of no legal significance. The dictate of Title VII is that state agencies be given an opportunity to resolve plaintiff's charge before a federal action is filed. Thus when the EEOC "refers" the charge to the SDHR, the SDHR automatically assumes jurisdiction.
In fact, it appears that the SDHR took jurisdiction over plaintiff's charge and continued to retain jurisdiction until July 8, 1991. On July 3, 1991, plaintiff's counsel advised the SDHR that plaintiff had instituted suit in federal court on both her Title VII and state law discrimination claims, and requested that the SDHR "dismiss the charge for 'administrative convenience' on the grounds that the processing of the charge by the SDHR would not advance the State's Human Rights goals." On July 8, 1991, the SDHR issued an "Administrative Convenience Dismissal." Without any evidence to the contrary, there is no reason to conclude that the EEOC and SDHR did not fulfill their statutory duties, ignoring plaintiff's counsel's "instructions," evaluating the charge and reaching an independent determination not to pursue an investigation.
Defendants argue that where a plaintiff affirmatively chooses not to pursue state or local proceedings, even if the EEOC issues a Notice of Right to Sue, and even if the EEOC refers the discrimination charge to a state or local agency, the procedural requirements of Title VII may not be met, citing Albano v. General Adjustment Bureau, Inc., 478 F. Supp. 1209, 1213-1214 (S.D.N.Y 1979), aff'd, 622 F.2d 572 (2d Cir. 1980). However, unlike Albano where plaintiff refused to cooperate when a city agency sought further information on a charge and requested an amended charge to be filed, in this case, the state agency never made any requests for information or asked for anything which the plaintiff refused to provide. The holding of Albano is that the state agency has the right to investigate a charge first "if it so desires," Albano, 478 F. Supp. at 1214, -- there is simply no basis for concluding in this case that the SDHR "so desired."
For these reasons, the defendants' motion to dismiss on the ground that the filing with the EEOC was not properly effected is denied.
Defendants also move to dismiss for lack of subject matter jurisdiction on the ground that the necessary employee/employer relationship as defined by Title VII does not exist between plaintiff and any of them. As a general rule, Title VII is applicable only to the claims of an employee (or prospective employee) seeking redress for the unlawful employment practices of her employer, see, e.g., Tadros v. Coleman, 717 F. Supp. 996, 1002 (S.D.N.Y. 1989), aff'd, 898 F.2d 10 (2d Cir. 1990), cert. denied, 112 L. Ed. 2d 149, 111 S. Ct. 186 (1990). At first glance, none of the named defendants appears to qualify as a Title VII "employer." None of the defendants except Ahluwalia was ever plaintiff's direct employer, and Ahluwalia never had fifteen employees and thus cannot qualify as a Title VII employer.
However, it is the rule in this Circuit that, in appropriate circumstances, the absence of a direct employment relationship does not bar a Title VII claim:
It is generally recognized that the term "employer," as it is used in Title VII, is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an "employer" of an aggrieved individual as that term has generally been defined at common law.
Spirt v. Teachers Ins. & Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982) (citation omitted), cert. denied, 469 U.S. 881, 83 L. Ed. 2d 185, 105 S. Ct. 247 (1984); see also EEOC v. KDM School Bus Co., 612 F. Supp. 369 (S.D.N.Y. 1985); United States v. Yonkers, 592 F. Supp. 570 (S.D.N.Y. 1984); Amarnare v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 611 F. Supp. 344 (S.D.N.Y. 1984), aff'd, 770 F.2d 157 (2d Cir. 1985); EEOC v. Sage Realty Corp., 87 F.R.D. 365 (S.D.N.Y. 1980). "To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited." Sibley Memorial Hospital v. Wilson, 160 App. D.C. 14, 488 F.2d 1338, 1341 (D.C. Cir. 1973).
Plaintiff does not allege that an ordinary employment relationship existed between herself and defendant NYLIC, Magliano or Rosenberg, or that defendant Ahluwalia qualifies as a Title VII employer. Neither does she contend that NYLIC is responsible for the conduct of Ahluwalia towards his own employees. She argues rather that NYLIC "interfered with her employment opportunities" with defendant Ahluwalia -- first, by creating a sexually hostile work environment, then by compelling Ahluwalia to terminate her --, and that the other defendants are liable as "agents" for allegedly participating in NYLIC's discriminatory conduct.
According to plaintiff, NYLIC interfered with her employment opportunities with defendant Ahluwalia by, inter alia, denying her access to the building where she engaged in work for defendant Ahluwalia, and instigating or coercing defendant Ahluwalia to terminate plaintiff's employment. Plaintiff contends that her discharge was "directly caused by, participated in, coerced and compelled by defendants Magliano and NYLIC" and "was acquiesced and participated in by defendants Ahluwalia and Rosenberg," Compl. para. 42, and asserts that:
On July 24, 1990, shortly after reporting to work, plaintiff was told by defendant Ahluwalia that he had been ordered by "the Home office" to discharge her from her job, effective immediately. In the discussion that ensued between them, defendant Ahluwalia . . . confirmed that the [petition accusing her of stealing] had been received at defendant NYLIC's home office, that plaintiff was not allowed to have keys or access to the Vanderbilt Office, and that if he did not get the keys back from plaintiff and discharge her at once, he would no longer be allowed to have his office in the Vanderbilt Office and would have to immediately move out. Defendant Ahluwalia then repeated to plaintiff that she was "fired", stating: "New York Life gives me the office and makes the rules."
Compl. para. 27.
Defendants assert that there is no precedent for recognizing an "interference with employment opportunities" on these facts and that the 2d Circuit cases cited by plaintiff are distinguishable because they involve either a delegation of duties or an employment agency situation, which is not the case here. However, the principle embodied in those cases -- that is, of tracing responsibility -- is precisely the issue to be determined here. As a general rule, independent contractors may not sue their employers for discrimination under Title VII. But cases like this depend on the facts. For example, where an employer exerts significant control over the working conditions of its independent contractors and their employees, where it controls their access to office space, their receipt of substantial allowances for office supplies and secretarial help, and their remedies for resolving workplace grievances -- a power to interfere with employment opportunities may exist.
In sum, in a case like this where the facts can only be partly conveyed by affidavits and motion practice and where the factfinder needs further information and testimony to interpret the significance of the facts, disposition by motion under Fed. R. Civ. P. 12(b)(1) is inappropriate. However, it does make sense to decide the jurisdictional issue first. Accordingly, the issues raised by the motion will be set down for separate trial prior to a trial of the merits which, of course, will not be necessary if it is ultimately determined that jurisdiction does not exist.
Plaintiff contends that NYLIC (as insurer under the medical insurance policy purchased from NYLIC by insurance agents and employees of such agents) breached an alleged fiduciary duty to her and violated ERISA by interfering with plaintiff's continued medical insurance coverage following her discharge -- deliberately misrouting and then refusing to accept checks which were necessary to continue her coverage under NYLIC's medical insurance policy after her discharge -- all in retaliation against her for filing her EEOC charge. NYLIC moves for summary judgment on the ERISA claim on the grounds that plaintiff has not alleged that she submitted any claims for medical treatment that were denied during this period, and that, in any case, the claim is moot.
Although, on the material presented, one may have doubts whether plaintiff can prove her claims, summary judgment nevertheless cannot be granted because there are issues of fact relating to the allegedly deliberate misrouting and refusal to accept plaintiff's January 1991 premium payment and to the plaintiff's dentist's alleged refusal to perform dental services on her during the week of July 4, 1991, because of a conversation he had with the office manager of the Vanderbilt Office regarding her coverage. In addition, NYLIC's mootness argument also fails because the fact that NYLIC reassured plaintiff that her medical coverage was continuing on May 30, 1991, does not render moot, her allegations of interference with her medical coverage prior to May 30, 1991.
* * *
The motions for summary judgment are thus denied. It is so ordered.
Date: January 17, 1992
New York, New York
MORRIS E. LASKER