be brought in federal court. See 42 U.S.C. § 2000e-5(f)(1).
The EEOC's statutory framework of administrative review serves two important purposes. First, it serves a conciliatory function of bringing the charged party before the EEOC in an attempt to secure voluntary compliance with the law. See Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 26 (2d Cir.) (ADEA case), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985); McCarthy v. Cortland County Comm. Action Program, Inc., 487 F. Supp. 333, 336 (N.D.N.Y. 1980). Second, it notifies the charged party of the asserted violation. See Franklin v. Herbert Lehman College, 508 F. Supp. 945, 951-52 (S.D.N.Y. 1981).
As the filing requirements of the ADEA were largely modeled after the filing provisions of Title VII, many of the governing procedures of these two statutes are the same.
See Tolliver v. Xerox Corp., 918 F.2d 1052, 1055-57 (2d Cir. 1990), cert. denied, 499 U.S. 983, 113 L. Ed. 2d 736, 111 S. Ct. 1641 (1991). Accordingly, in view of the similarities between Title VII and the ADEA, a number of courts have applied Title VII jurisprudence to guide their interpretation of analogous ADEA provisions. See 917 F.2d 1049 at 1056-57.
In the instant case, the defendants argue that summary judgment must be granted because the plaintiffs have failed to satisfy the statutory prerequisites for bringing an action in federal court. Specifically, the defendants contend that the plaintiffs failed to file charges with the EEOC or the relevant state agency, and moreover have failed to obtain a right-to-sue letter from the EEOC. In order to determine whether the plaintiffs have failed to satisfy these "statutory prerequisites," some elaboration upon this phrase is required.
The seminal case in this regard is Zipes v. Trans World Airlines, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), in which the Supreme Court held that Title VII's requirements concerning the filing of a charge with the EEOC are statutory prerequisites, and not jurisdictional in nature. Because these prerequisites are statutory and not jurisdictional, should a plaintiff fail to satisfy these requirements, a federal court, in its discretion, may elect to hear the action because "like a statute of limitations, [these requirements are] subject to waiver, estoppel and equitable tolling." Id. at 393, 102 S. Ct. at 1132. Had these elements instead been jurisdictional, a plaintiff's failure to file timely, and to obtain a right-to-sue letter, would deprive the court of subject matter jurisdiction, thereby necessitating the dismissal of the suit. This distinction likewise applies to ADEA actions. See Miller, 755 F.2d at 24.
The plaintiffs bear a heavy burden in establishing that equitable principles should permit the procedural requirements in question to be bypassed, as courts in this circuit are generally "reluctant to hear claims that were not originally filed with the EEOC." Dennis v. Pan Am. World Airways, 746 F. Supp. 288, 290 (E.D.N.Y. 1990). Strong policy reasons direct that a plaintiff should not be able to "circumvent the Congressionally-created administrative scheme designed to facilitate voluntary compliance with or to settle disputes falling under Title VII" or the ADEA. Moche v. City Univ. of New York, 781 F. Supp. 160, 167 (E.D.N.Y. 1992), aff'd, 999 F.2d 538 (2d Cir. 1993). Furthermore, "procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. . . . In the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723, 1726, 80 L. Ed. 2d 196 (1984) (internal quotations omitted).
The Second Circuit Court of Appeals has noted that an equitable modification to the statutory prerequisites will not be permitted unless "the employee was actively misled by his employer, he was prevented in some extraordinary way from exercising his rights, or he asserted his rights in the wrong forum . . . ." Miller, 755 F.2d at 24 (citing Smith v. American President Lines, 571 F.2d 102, 109 (2d Cir. 1978)). Thus, "an 'extraordinary' circumstance permitting tolling of the time bar on equitable grounds might exist if the employee could show that it would have been impossible for a reasonably prudent person to learn that his discharge was discriminatory." Id.
Of the potential bases for equitable modification noted by the Second Circuit Court of Appeals in Miller, the ground that is most applicable to this case is the plaintiffs' assertion of their rights in the wrong forum. As another district court within this circuit recently stated, "the Second Circuit has . . . indicated in dicta that tolling of the time bar may be permitted as a 'matter of fairness' if a plaintiff asserts her rights in the wrong forum." Ryan v. New York State Thruway Auth., 889 F. Supp. 70, 79 (N.D.N.Y. 1995) (citing Miller, 755 F.2d at 24). In Ryan, the court concluded that the plaintiff's filing of a complaint alleging sexual harassment with the Office of Civil Rights of the United States Department of Transportation, ["DOT"] failed to toll the limitations period for filing a charge with the EEOC. See 889 F. Supp. at 78-79. In reaching this determination, Judge Pooler rejected the plaintiff's attempt to analogize her filing with the DOT to a filing with the Office of Federal Contract Compliance ["OFCC"], which the Second Circuit regarded in Egelston v. State Univ. College, 535 F.2d 752, 755 n.4 (2d Cir. 1976), to constitute a constructive filing with the EEOC, in accordance with the EEOC's own administrative practice. See Ryan, 889 F. Supp. at 78-79. Rather, Judge Pooler concluded that "because [the plaintiff] should have known that she should file her sexual harassment complaint with EEOC or DHR, equitable tolling is not appropriate." See id. at 79.
In a similar vein, in Franklin v. Herbert Lehman College, 508 F. Supp. 945 (S.D.N.Y. 1981), Judge Tenney concluded that the plaintiff's use of internal grievance procedures established by a college did not toll the limitations period for filing a charge with the EEOC. See id. at 952. The circumstances in Franklin and in Ryan are to be contrasted with those presented in Stutz v. Depository Trust Co., 497 F. Supp. 654 (S.D.N.Y. 1980), in which equitable tolling was permitted where a pro se complainant was provided incorrect advice by a DHR representative concerning the filing of a charge with the EEOC. See id. at 656. In Stutz, in contrast to the instant case in which the EEOC has not appeared as amicus curiae, the EEOC itself advocated the position that the plaintiff should be entitled to proceed to federal court without a right-to-sue letter. See 497 F. Supp. at 655-56.
In the case at bar, the plaintiffs have filed neither with the EEOC, nor with the appropriate state agency. Instead, the plaintiffs have filed a complaint of discrimination with the UCS EEO office, which upon review was denied on its merits by Administrative Judge McGinity, and affirmed on appeal by Deputy Chief Administrative Judge Traficanti. While it is possible that the plaintiffs may have believed that their pursuit of an administrative claim with the UCS EEO office satisfied the requirements for instituting an action in federal court, the Court regards the affirmation set forth on the same form that the plaintiffs executed to commence their administrative complaint to hold considerable significance in its evaluation of whether the plaintiffs are entitled to an equitable modification of the applicable statutory prerequisites. The affirmation appears immediately above the plaintiffs' respective signatures, and reads as follows:
I affirm that the information contained in this claim is true to the best of my knowledge, information and belief.