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August 25, 1997


The opinion of the court was delivered by: LARIMER

 Plaintiff, Barbara M. McKinney, commenced this action by filing a pro se complaint on October 29, 1996. Using a form complaint for civil rights claims, plaintiff typed an "X" on the line stating that the action was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She did not check the line for claims brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. However, where the form stated, "Defendant's conduct is discriminatory with respect to which of the following (check all that apply)," plaintiff checked only the line for "Age," and gave her date of birth as "10/17/50."


 Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 23, 1996. Although she checked the boxes for sex discrimination, age discrimination and retaliation, her statement of facts said nothing about sex discrimination. Her entire factual allegations consisted only of the following:

I began working for the above-named Respondent in about November, 1981, with my most recent title being that of Product Coordinator. Respondent attempted to replace me with a 21 year old employee. When the employee declined my position, she was given a promotion to a higher level than my job. In May, 1995, I complained to management of the disparate treatment, and was laid off on October 9, 1995. I believe I was not given a promotion because of my age/45 (date of birth: 10/17/50) in willful violation of the Age Discrimination in Employment Act, and was discharged in retaliation for having complained about employment discrimination to management.

 On July 15, 1996, the EEOC sent plaintiff a letter advising her that it was investigating her claim and that it would be issuing its determination. The letter also stated, "You alleged that you were discriminated against in violation of the Age Discrimination in Employment Act, as amended, in that you were discharged during a reduction in force because of your age and in retaliation for protesting discrimination." Plaintiff never sought to amend the EEOC claim or to notify the EEOC that it had misconstrued her claim. On July 31, 1996, the EEOC issued a right-to-sue letter setting forth its finding that it was unable to conclude that a violation had occurred.

 As stated, plaintiff commenced this action on October 29, 1996. In addition to checking the boxes on the complaint form for Title VII and age discrimination (but not the ADEA), plaintiff provided a statement of her alleged facts. She stated, "I claim the charge of 'retaliation' against me for going to management and Human Resources in complaint of intentional unjust treatment by my supervisor, Thomas Batz." She stated that Batz had displayed favoritism toward another employee, Lisa Cairns, despite plaintiff's complaints to Batz that Cairns's mistakes on the job were adding to plaintiff's workload and were costing Kodak money. She alleged that in early 1994 she began complaining to higher management about the situation.

 Plaintiff also alleged that in December 1993, her husband suffered a stroke, and that she had to take a lot of time off from work to help him. She alleged that she used vacation time for these absences "because Mr. Batz was unaware of the Family Medical Leave Act," and that when she complained about this to Human Resources, Batz "got very annoyed with [her] and started treating [her] even more shabily [sic]." She stated that when she returned to work in August 1994 after her husband's death from cancer, Batz said to her that "it was really too bad that [plaintiff] had to miss so much work," and that because of her absence, Batz had been forced to give Cairns a promotion that would otherwise have gone to plaintiff.

 The original complaint alleges additional unfair treatment by Batz over the following months, although the allegations do not mention any type of discrimination. Plaintiff alleged that when she complained about some of these matters to Peter Barres in Human Resources, he was at first sympathetic, but later "totally changed his point of view" and did nothing to help her.

 The proposed amended complaint asserts five causes of action. The first is for sex discrimination under Title VII. Plaintiff alleges that prior to her termination, plaintiff held the position of Product Coordinator in Kodak's Health Services Division, and that after the layoff this title was given to Batz.

 The second cause of action alleges age discrimination. Plaintiff alleges that she was subjected to disparate treatment because Cairns was given a promotion that plaintiff should have received. She also asserts a disparate impact theory, alleging that Kodak's reliance on performance evaluations to decide whom to lay off tended to favor younger employees "because younger employees who were in the process of climbing through the ranks of the Defendant's organization and had not peaked in their positions with the company received higher performance ratings than older employees who had reached or neared the peak of their advancement with the Defendant." Proposed Amended Complaint P 30. Based on these allegations, the third cause of action asserts a claim of age discrimination under the HRL.

 The fourth cause of action is based on the FMLA. Plaintiff alleges that she was not paid for overtime that she had accrued by working nights and weekends to make up for her absences to care for her husband. She also ...

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