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MCGUIRK v. EASTERN GEN. INS. AGENCY

March 9, 1998

TERESA L. McGUIRK, Plaintiff,
v.
EASTERN GENERAL INSURANCE AGENCY and RONALD ZAVAGLIA, INDIVIDUALLY, Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Teresa L. McGuirk, commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendants, Eastern General Insurance Agency ("Eastern General") and Ronald Zavaglia, have moved to dismiss the complaint on the ground that plaintiff has not complied with the filing requirements of 42 U.S.C. § 2000e-5(e)(1).

 BACKGROUND

 The complaint alleges that plaintiff began working for Eastern General in October 1994. Plaintiff alleges that Zavaglia, the owner of Eastern General, continually made sexual advances toward her despite her protests. On or about February 23, 1995, plaintiff told her supervisor that she was considering filing a complaint about Zavaglia with the Equal Employment Opportunity Commission ("EEOC"). The supervisor then spoke privately to the office manager, who told plaintiff that plaintiff had to be "let go." No reason was given to plaintiff for her termination.

 Plaintiff filed a complaint with the EEOC on December 12, 1995, 292 days after her termination. That complaint alleged that plaintiff had been subjected to a hostile work environment and terminated in retaliation for her threat to file an EEOC complaint.

 On April 26, 1997, the EEOC issued a determination finding "reason to believe that violations have occurred ...," and inviting the parties to attempt to settle the matter. Donna Marianetti Aff. (Item 10) Ex. C. On July 31, 1997, the EEOC issued a right-to-sue letter, stating that it had not been able to find a settlement that would have provided relief for plaintiff. Marianetti Aff. Ex. D.

 DISCUSSION

 Defendants base their motion to dismiss on 42 U.S.C. § 2000e-5(e)(1), which states in pertinent part:

 
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ..., except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred ...

 Defendants contend that because New York has an agency with authority over this matter, i.e. the New York State Division of Human Rights ("DHR"), the 300-day period does not apply unless plaintiff first instituted proceedings with the DHR. Plaintiff concedes that she has not done so, but maintains that because New York has an agency with authority over this matter, the 300-day filing period applies, regardless of whether plaintiff actually instituted proceedings before that authority.

 Although on its face the statute does speak of a plaintiff having "initially instituted proceedings" before a state agency, an analysis of the statutory scheme and relevant case law supports plaintiff's position. Pursuant to its authority under 42 U.S.C. § 2000e-4(g)(1), the EEOC has entered into a "Worksharing Agreement" with the DHR. The 1995 Worksharing Agreement applicable to the case at bar provides that:

 
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.

 In addition, the EEOC will initially process the following charges:

 --All Title VII charges received by the [DHR] 240 days or more after the date of violation. 1995 Worksharing Agreement P III(A)(1) (quoted in Ford v. Bernard Fineson ...


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