OPINION AND ORDER
MICHAEL B. MUKASEY, U.S.D.J.
Lesia Figueira sues Black Entertainment Television, Inc. and its wholly owned subsidiary, Paige Publications (collectively "BET"), for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, including the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Plaintiff also sues for violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2615 et seq., New York State Executive Law § 296 and the New York City Administrative Code § 8-101. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendant's motion to dismiss is denied.
The following assertions, presumed true for the purposes of this motion, are taken from plaintiff's complaint: Figueira is female and a citizen of New York. (Compl. P 8) BET is a New York corporation with its principal place of business at 380 Madison Avenue, 20th Floor, New York, New York. (Id. P 9)
Figueira started working for BET in August 1993 as an account executive. Her primary duty was to sell advertising in BET's publication, YBS Magazine. Plaintiff performed her duties well, and achieved a high volume of sales. (Compl. P 11) On or about January 1, 1995 plaintiff told her immediate supervisor that she was pregnant and would give birth sometime in August 1995. Plaintiff also told her supervisor that she would take maternity leave as authorized by the FMLA. (Compl. P 12) Shortly thereafter, Figueira's supervisor informed her that an Executive Vice President of BET, when informed of Figueira's request for maternity leave, had "expressed concern . . and challenged whether plaintiff's absence should be approved." (Compl. P 13)
Before plaintiff informed her supervisor that she was pregnant, plaintiff had no adverse disciplinary action in her personnel record. (Compl. P 14) However, after she told her supervisor about her pregnancy, BET's attitude towards her turned critical and negative, and BET personnel made "unsubstantiated charges of misconduct." (Id. PP 14, 15) Based upon these charges, defendant terminated plaintiff's employment on April 28, 1995. (Id. P 15) Plaintiff was replaced by a non-pregnant female sometime in August 1995. (Id. P 17)
On January 31, 1996, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Compl. P 5) On February 15, 1996 the EEOC issued plaintiff a notice of right to sue, signed by Spencer H. Lewis, District Director of the EEOC, stating that although less than 180 days had expired since plaintiff filed her charge, he had determined that the Commission would be unable to complete its administrative process within 180 days. (Compl. P 6, Ex. A) Plaintiff filed a complaint in this court on May 1, 1996, claiming that she was fired because she was pregnant and expressed a wish to take maternity leave.
BET now moves to dismiss. BET claims that plaintiff's Title VII claim is barred by the applicable statute of limitations, or in the alternative must be remanded to the EEOC. BET argues also that plaintiff's FMLA claim must be dismissed because plaintiff is not an eligible employee under the Act. Defendant argues also that all claims for punitive damages, other than that based on alleged Title VII violations, must be dismissed. Finally, defendant argues that the court should dismiss all pendent state law claims pursuant to 28 U.S.C. § 1367(c)(3).
A. Title VII -- Statute of Limitations
BET argues that plaintiff failed to file her Title VII charge with the EEOC within the applicable limitations period. Although the general time limitation for EEOC filings is 180 days "after the alleged unlawful employment practice occurred," 42 U.S.C. § 2000e-5(e)(1), if the discrimination took place in a state or locality with an agency authorized to grant or seek relief from discrimination, and the complainant has filed a charge with that agency, that time limitation is extended to 300 days. Id. However, in a state with its own agency, no charge may be filed with the EEOC "before the expiration of 60 days after proceedings have been commenced under State or local law . . . ." 42 U.S.C. § 2000e-5(c). The EEOC charge may be filed before 60 days from the filing with the state agency only if the state agency has "terminated" its proceedings. Id.
In Equal Employment Opportunity Commission v. Commercial Office Prods. Co., 486 U.S. 107, 121, 100 L. Ed. 2d 96, 108 S. Ct. 1666 (1988), the Supreme Court stated that when a charge is filed initially with the EEOC in a state with a fair employment practices agency, the EEOC holds the charge in "suspended animation" until either 60 days have elapsed or the state proceeding is terminated. 486 U.S. at 113. Therefore, in state with a fair employment practices agency, to file in a timely fashion with the EEOC -- within 300 days of the alleged discriminatory practice -- a complainant must actually file with the EEOC within 240 days of the alleged discriminatory practice, because the EEOC holds the charge in "suspended animation" for 60 days. See Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980).
However, if the state terminates its proceedings, a charge filed with the EEOC between 240 and 300 days after the alleged discriminatory practice would be timely filed. The Mohasco Court stated:
If a complainant files later than that [240 days after the discriminatory conduct] (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300 day period.
Id. Further, in Commercial Office Prods the Court held that a state agency's "waiver" of its exclusive 60-day period pursuant to a Workshare Agreement between the EEOC and the state agency is a "termination" of the state proceeding. Thus, in a state with its own fair employment practices agency, a plaintiff's filing with the EEOC between 240 and 300 days after the discriminatory practice is timely if the state waives its exclusive 60-day period.
Defendant argues first that plaintiff failed to file with the EEOC within the 300-day outer limit set by § 2000e-5(e)(1). BET argues that the alleged "unlawful employment practice" in this case -- discrimination based on plaintiff's pregnancy -- occurred in January 1995, when BET's conduct towards the plaintiff changed. Defendant argues that plaintiff should have been aware of its negative and critical attitude by March 1995 at the latest. Although "the timeliness of a discrimination claim is to be measured from the date the claimant had notice of the allegedly discriminatory action," charges based on any discriminatory acts or practices which fall within the 300 days preceding the filing of an EEOC charge are timely filed -- even if there were acts that occurred before the 300 days which would give rise to charges that would not be timely filed. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Here, plaintiff filed her charge with the EEOC on January 31, 1996. Accordingly, any charges based on discriminatory employment practices which occurred between April 6, 1995 and January 31, 1996 are timely filed. Plaintiff was fired on April 28, 1995, 278 days before she filed her charge. Further, plaintiff alleges only that it was termination of her employment, and not the negative and critical conduct of BET, which constituted discrimination. Indeed, on her EEOC charge, in the box labelled "Date Discrimination Took Place," plaintiff listed April 27, 1995 as both the earliest and latest date of discrimination. Thus, plaintiff's charge relating to her firing was timely. Because I find that plaintiff filed her charge within 300 days after she was terminated, I need not consider her continuing violation claim or her argument that the period should be tolled based on her illness or the government shut-down which occurred in November and December of 1995.
Defendant next argues that even if plaintiff filed her charge with the EEOC 278 days after the discriminatory conduct, it was not timely filed pursuant to § 2000e-5(c) because the fair employment practices agency in New York, the Division of Human Rights ("DHR"), did not affirmatively waive its 60-day deferral period. As noted, in Commercial Office Prods. the Supreme Court held that an agency's waiver of its exclusive 60-day deferral period, pursuant to a Workshare Agreement, terminates the state proceeding such that the EEOC may immediately proceed. 486 U.S. at 121. Defendant argues that the DHR did not waive its 60-day period, and therefore plaintiff's charge was in suspended animation for those 60 days and it should not be deemed to have been filed until the expiration of that period -- which would be 338 days after the last discriminatory act and untimely. Defendant's argument fails for two reasons.
First, there is evidence here that the DHR actually waived its rights. Plaintiff has attached to her opposition papers a copy of a memorandum from the EEOC dated February 5, 1996. The memorandum to plaintiff's charge file from Maria Segarra, a supervisor in the Charge Receipt Technical Information Unit reads as follows: "I called the NYS Division of Human Rights this date to request a waiver of the 60 day deferral period. The waiver was granted as of this date." (Harger Aff., Ex. E) Indeed, defendant was aware that the DHR had waived the 60-day deferral period because on or about June 4, 1996 it received a letter from the DHR, in response to a request pursuant to the Freedom of Information Law, which stated that "the case was a waiver." (Schenkel-Savitt Aff., Ex. D, Tab 1)
Second, the DHR automatically waived it 60-day deferral period in this case pursuant to a Workshare Agreement with the EEOC. The Second Circuit has recently held that a Workshare Agreement in effect between the DHR and the EEOC contained an automatic and self-executing waiver of the DHR's exclusive 60 day period permitting the EEOC to proceed immediately to process a charge of discrimination. Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 310-11 (2d Cir. 1996).
In Ford, the plaintiff filed his charge with the DHR 281 days after the alleged discrimination. Id. at 305. The DHR forwarded the charge to the EEOC and then commenced a four-month investigation, concluding that there was no probable cause of discrimination. Id. Thereafter, the plaintiff asked the EEOC to review his charge, and four months later received a notice of right to sue. Id. The plaintiff then sued in the Southern District of New York, and the defendant moved to dismiss, arguing that the plaintiff's EEOC charge was time barred because the DHR did not waive its 60-day period. The plaintiff argued that the Workshare Agreement between the DHR and the EEOC waived the state's right to an exclusive 60 day period, and constituted an immediate termination of the state proceeding. The Workshare Agreement at issue in Ford, covering 1995, stated:
For charges originally received by the EEOC and/or to be initially processed by the EEOC, the [DHR] waives its rights of exclusive jurisdiction to initially process such charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day.
Id. at 310 (bracketed material in original). Because the plaintiff's charge was one of those "to be initially processed by the EEOC," the Court held that the state had waived its rights, and the plaintiff's charge was timely filed with the EEOC. Id.
Here, the waiver clause in the Workshare Agreement in effect between the DHR and the EEOC at the time plaintiff filed her charge is the same as the one at issue in Ford. (Harger Aff., Ex. C) Defendant tries to escape the result mandated by Ford and attempts to distinguish Ford by arguing that because the plaintiff there filed first with the DHR, "the State Division made the decision to transfer the charge to the EEOC for processing and, thus, affirmatively waived its 60-day deferral period." (Def. Reply Mem. at 15) (alteration in original)
That distinction is inconsistent with the Second Circuit's reasoning in Ford. The Second Circuit did not base its decision on the DHR's transfer of the charge to the EEOC. Rather, the Court expressly stated that "the DHR's signing of the Agreement effected a waiver of its otherwise exclusive statutory right to handle Ford's case" and "the unqualified language of the 1995 Agreement makes this waiver self-executing . . . the DHR's waiver . . . went into effect as soon as Ford filed his Title VII charge on the 281st day." Id. at 310 (emphasis added). The Court concluded:
When state agencies unambiguously waive their statutory right to exclusively process certain discrimination claims they (and the EEOC) have made an arrangement for the benefit of claimants . . . the timeliness of a claimant's filing therefore should not be made to depend on whether one or the other agency follows through on its undertakings under a Worksharing Agreement.
Id. at 312; see also Mayo v. Securities Ind. Ass'n., 1995 U.S. Dist. LEXIS 15200, No. 95 Civ. 4350, 1995 WL 608291 (S.D.N.Y. Oct. 17, 1995) (holding that the Workshare Agreement between DHR and EEOC was self-executing and stating that "nothing in Title VII, the federal regulations, or the worksharing agreement between the EEOC and the [DHR] requires the state to confirm its waiver as each new case arises.") (citations omitted).
Here, plaintiff filed her case with the EEOC. Pursuant to the Workshare Agreement, which designates the DHR and the EEOC as agents for one another for the purpose of receiving and drafting charges, the charge was deemed filed with the DHR on the same date. Plaintiff's charge, because it was "originally received by the EEOC," falls with the category of charges over which the DHR "waives its right of exclusive jurisdiction." (Harger Aff. Ex. C) The DHR's waiver went into effect as soon as plaintiff filed her charge, and the EEOC could immediately proceed. Plaintiff's charge with the EEOC was thus timely filed pursuant to both § 2000e-5(c) and § 2000e-5(e)(1).
B. Early Notice of Right to Sue
Alternatively, BET argues that the EEOC's notice of right to sue was a nullity and this case should be remanded to the EEOC to complete its administrative review because the EEOC is "statutorily precluded from issuing a right to sue letter to a claimant until the expiration of 180 days after the claimant has initially filed charges with the EEOC." (Def. Mem. at 13) Here, the EEOC issued plaintiff a notice of right to sue on February 15, 1995, 15 days after plaintiff filed her charge.
The relevant section, 42 U.S.C. § 2000e-5(f)(1), states in relevant part:
If a charge filed with the Commission pursuant to subsection (b) of this section. . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days of giving such notice a civil action may be brought against the respondent named in the charge . . . .