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January 17, 1992


The opinion of the court was delivered by: MORRIS E. LASKER

 This action arises out of an alleged incident of physical sexual harassment. According to plaintiff, on April 18, 1990, she was violently assaulted at her place of employment by a fellow-worker, Stephen Rosenberg. She sues (1) Rosenberg, (2) Dinesh Ahluwalia, her direct employer, (3) New York Life Insurance Company ("NYLIC"), the company for whom Ahluwalia and Rosenberg both work as insurance agents, and (4) Al Magliano, the NYLIC office manager of the office where the alleged attack occurred. The gravamen of plaintiff's claims against defendants NYLIC, Magliano and Ahluwalia, is not the attack itself but their conduct towards her following the incident. According to plaintiff, they attempted to suppress her complaints and then retaliated against her when she would not drop her complaints against defendant Rosenberg. Her termination by defendant Ahluwalia, her direct employer, just over three months after the alleged attack, was, according to plaintiff, compelled and participated in by NYLIC and the other defendants.

 She charges the defendants with creating a sexually hostile environment, committing guid pro quo sexual harassment and retaliatory sex discrimination, all in violation of Title VII of the Civil Rights Act, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq.; the New York Human Rights Law ("HRL"), N.Y. Exec. Law § 290, et seq.; the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq; and various state common law torts. Defendants move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and, consequently, to dismiss the pendent state law claims. Defendant NYLIC also moves for summary judgment on the tenth cause of action, the ERISA claim, contending that no genuine questions of material fact exist and that, in any case, the claim is moot.

 NYLIC's motion for summary judgment on the ERISA claim is denied. Defendants' motion to dismiss the Title VII claim pursuant to Rule 12(b)(1) is also denied. Decision on the pendent claims is reserved pending a trial on the jurisdictional issues.


 These motions raise important questions as to the reach of Title VII, the federal anti-discrimination law targeted at workplace discrimination. NYLIC is a nationwide insurer with offices and places of business throughout the United States. It employs hundreds of insurance agents and in the case of defendants Ahluwalia and Rosenberg, provides them with office space rent-free, training courses, an allowance for office supplies and secretarial help, and medical insurance. Nevertheless, it is agreed that the relationship of these insurance agents to NYLIC is legally that of independent contractors, not of employees. The significance of their legal status for purposes of this motion is that it may render NYLIC immune to Title VII claims brought by its insurance agents and employees of its agents.

 Defendants Ahluwalia and Rosenberg work out of offices in the Vanderbilt General Office, a sales office maintained by NYLIC in Manhattan on three floors of a building located at 660 Madison Avenue, New York, New York 10021 ("Vanderbilt Office"). Approximately 150 to 200 persons work at the Vanderbilt Office, including officials and employees of NYLIC, its sales agents and employees of its sales agents. Plaintiff worked for defendant Ahluwalia, bookkeeping, soliciting leads, writing correspondence, and scheduling appointments; she worked out of his office. Defendant Ahluwalia hired plaintiff, paid her salary, set her schedule, and evaluated her performance. There is no dispute that he was plaintiff's sole direct employer.

 Magliano is the general manager of the Vanderbilt Office, in charge of the operations of that office for NYLIC. According to plaintiff, his responsibilities include the hiring of NYLIC sales agents who work out of the Vanderbilt Office, the monitoring of their sales, and the assigning and reassigning of their office spaces.

 The complaint alleges that, in the early evening of April 18, 1990, defendant Rosenberg, apparently drunk, emerged from his office, went into defendant Ahluwalia's office, which adjoins his, where plaintiff was working, grabbed her, and violently sexually assaulted her, not stopping until two of the persons present pulled him off of her. The complaint further alleges that for about an hour, both before and after the attack, Rosenberg yelled vulgar and explicit sexual remarks to plaintiff from his office, inter alia, asking plaintiff to come into his office and perform various sex acts with him.

 According to plaintiff, following the attack, her demands for corrective action and her requests to have defendant Rosenberg's office relocated were ignored, and the defendants engaged in a concerted campaign to defame and slander her in order to force her to drop her complaints -- spreading rumors that she was a liar and a thief. Plaintiff asserts that this conduct culminated on July 18, 1990, when Rosenberg and Magliano prepared and circulated a petition throughout the Vanderbilt Office accusing plaintiff of theft and asking that she be fired for such dishonesty. Less than a week later, on July 24, 1990 -- approximately three months after the alleged assault -- plaintiff was discharged by Ahluwalia. Plaintiff claims that NYLIC coerced Ahluwalia into firing her by threatening him with loss of his office and office privileges the Vanderbilt Office. *fn1"


 Defendants move to dismiss for lack of subject matter jurisdiction on the grounds that plaintiff's Title VII claim is defective because (1) she failed to make a proper filing with the EEOC, and (2) she was not an employee of any of the defendants within the meaning of the Act.

 Defendants argue that plaintiff's Title VII claim is defective because plaintiff failed to "submit to state jurisdiction," as is required, prior to filing her Title VII action. A prerequisite to filing a Title VII action is to file a charge with the EEOC. The Supreme Court has held that the procedural requirement of giving state agencies the first opportunity to resolve discrimination claims is met where the EEOC, acting on behalf of the complainant, refers such charge to the appropriate state agency, and then, in order to allow the state agency the first opportunity to resolve the dispute, defers its own proceedings until the earlier of sixty days after the state agency receives the charge or termination of the state proceedings. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64, 64 L. Ed. 2d 723, 100 S. Ct. 2024 (1980); Love v. Pullman Co., 404 U.S. 522, 525, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). *fn2"

 In this case, all of these events occurred. Plaintiff filed a charge of discrimination with the EEOC on October 12, 1990. The EEOC referred the charge to the SDHR on October 29, 1990, and received back from the SDHR its Form 212, the form utilized by the SDHR to waive state agency action on the charge, thereafter. On December 28, 1990, after the expiration of the sixty day period, the SDHR advised plaintiff it had received her charge and would close its file administratively based ...

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