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TUMMINELLO v. CONTINENTAL BAKING CO.

August 22, 1994

DORA TUMMINELLO, Plaintiff,
v.
CONTINENTAL BAKING COMPANY, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 In this employment discrimination case, plaintiff alleges that she was dismissed in 1992 as a store manager based upon a back injury which she overheard a supervisor indicate should cause her replacement. The defendant employer asserts that the dismissal was based on breaches of company rules. Plaintiff contends that her work was exemplary and that any infractions consisted of small gifts of store merchandise to legitimate charities as a means of obtaining community good will for the store and similar acts which were insubstantial, whereas extremely serious violations by others were ignored by the employer.

 II

 Despite enactment of the Americans With Disabilities Act, 42 USC 12101 et seq., this suit was brought solely under New York State Executive Law 296. The case was initially filed in state court and removed by the defendant employer based upon diversity of citizenship.

 The motion is denied.

 III

 State procedural limitations upon state-created claims, including those imposed by New York Executive Law 297(9) must be enforced in diversity of citizenship cases, see Promisel v. First American Artificial Flowers, 943 F.2d 251, 256-57 (2d Cir 1991), cert. denied 112 S. Ct. 939, 117 L. Ed. 2d 110 (1992), even though a claim alleging the same facts based upon federal antidiscrimination laws could proceed notwithstanding failure to satisfy state procedures. Long v. AT&T, 733 F. Supp. 188 (SDNY 1990); Grossman v. Suffolk County, 777 F. Supp. 1101 (EDNY 1991); Carter v. AT&T, 759 F. Supp. 155 (SDNY 1991).

 The bar imposed by section 297(9) is imposed when and only when an aggrieved person "had filed a complaint . . .." The procedure for doing so is set forth in New York Executive Law 297(1), which provides that an aggrieved person may "sign and file . . . a verified complaint in writing . . . ."

 It is undisputed that plaintiff contacted the Orange County Human Rights Commission to request its intervention, but she denies filing a written complaint, and defendant has been unable to produce one notwithstanding access to the agency's records under the state freedom of information procedures.

 There is no evidence that a case number was ever assigned to the matter. This suggests that plaintiff's contact with the agency ...


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