United States District Court, Northern District of New York
June 21, 2000
TINA STAFFORD, PLAINTIFF,
SEALRIGHT, INC., DEFENDANT.
The opinion of the court was delivered by: Mordue, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Tina Stafford ("Stafford") worked for defendant
Sealright, Inc. ("Sealright") as a factory line worker from 1989
until 1998. Stafford alleges that she became the target of
gender based discrimination when a coworker began making
sexually inappropriate remarks. Stafford allegedly reported the
foregoing to Sealright but claims that no action was taken to
remedy her complaints. She consequently resigned from her
position on July 9, 1998.
Plaintiff alleges she filed a Charge of Discrimination with
the Equal Employment Opportunity Commission ("EEOC") on November
11, 1998.*fn1 Armstrong Aff. at Ex. A. Plaintiff requested a
Right to Sue letter simultaneously with the filing of the Charge
of Discrimination. See Id. As urged by plaintiff, the EEOC
issued a Right to Sue letter on November 27, 1998, well before
the expiration of the 180-day period within which the EEOC would
otherwise have begun the administrative process of investigating
plaintiffs claims. Plaintiff commenced the present action on
January 20, 1999, alleging violations of 42 U.S.C. § 2000e-5
("Title VII") and New York Executive Law § 296.
Defendant presently moves this Court to dismiss plaintiffs
complaint for failure to exhaust administrative remedies.
Specifically, defendant argues that the complaint should be
dismissed since plaintiff received her Right to Sue letter prior
to expiration of the 180-day investigation and conciliation
period established by 42 U.S.C. § 2000e-5(f)(1). In opposition,
plaintiff argues that (i) an "early" Right to Sue letter is not
jurisdictionally defective; (ii) an "early" Right to Sue letter
does not violate Title VII; and (iii) plaintiff is entitled to
rely on past practice of the EEOC and the state of the law as it
allegedly existed at the time plaintiff initiated the present
Regarding the issuance of Right to Sue letters by the EEOC and
the timing of civil suits, Title VII states in pertinent part as
If a charge filed with the Commission . . . 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 . . . 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 after giving such
notice a civil action may be brought against the
respondent named in the charge.
42 U.S.C. § 2000e-5(f)(1).
In 1977, the EEOC enacted a regulation which purports to give
the agency authority to issue a Right to Sue notice prior to the
180-day period set forth in 42 U.S.C. § 2000e-5(f)(1). See
29 C.F.R. § 1601.28(a)(2). This regulation provides that the EEOC
may, upon request by a person aggrieved, authorize a private
suit "at any time prior to the expiration of 180-days from the
date of filing the charge with the Commission . . . [if the
agency] has determined that it is probable that the Commission
will be unable to complete its administrative processing of the
charge within 180 days. . . ." Id. Courts are divided as to
whether the EEOC's issuance of an "early" Right to Sue letter
pursuant to this regulation is ultra vires in light of Title
VII's mandate that the Commission "shall" investigate all claims
of employment discrimination and "shall" endeavor to eliminate
any unlawful employment
practice via settlement and/or conciliation. See
42 U.S.C. § 2000e-5(b).*fn2
This Court agrees with the Stetz and Rodriguez courts
which held that the issuance of an "early" Right to Sue notice
by the EEOC before it has undertaken an investigation of the
charge is violative of the 180-day mandatory waiting requirement
of § 2000e-5(f)(1) and the duty imposed on the EEOC by 42 §
2000e-5(b) to attempt to resolve disputes short of litigation.
See 70 F. Supp.2d at 123, 65 F. Supp.2d at 107. Chief Judge
McAvoy held in Stetz that:
[i]ndeed, the issuance of a right-to-sue letter
before the EEOC is permitted to investigate a
plaintiffs allegation and attempt conciliation would
result in an emasculation of the clear statutory
language of Title VII and the Congressional policy
underlying Title VII, which is aimed at having the
EEOC, rather than the courts, resolving disputes
involving unlawful employment practices.
Stetz, 70 F. Supp.2d at 123. The Court also concludes that the
Second Circuit's holding in Weise v. Syracuse University,
522 F.2d 397
(2d Cir. 1975), does not preclude this determination.
See Stetz, 70 F. Supp.2d at 124-25. In Weise, the Second
Circuit concluded that the EEOC could issue an "early" Right to
Sue notice to a litigant who had filed a second claim of
employment discrimination against an employer after the EEOC had
fully investigated the litigant's earlier charge against the
Unlike Weise, there has been no
investigation or attempt at conciliation with respect to
plaintiffs allegations. To the contrary, the EEOC dismissed
plaintiffs Charge of Discrimination on grounds of administrative
convenience almost immediately after it was filed. Therefore,
the requirements of § 2000e-5(b) have not been satisfied in the
present action thereby distinguishing the present facts from
those considered in Weise.
Accordingly, the Court finds that notwithstanding
29 C.F.R. § 1601.28(a)(2), Title VII clearly prohibits the issuance of a
Right to Sue notice prior to expiration of 180-days following
the filing of an aggrieved person's administrative charge of
employment discrimination, particularly when the record
indicates, as it does here, that the EEOC has not conducted any
meaningful inquiry into plaintiffs charge prior to authorizing a
civil suit. Indeed, the statutory scheme of exhaustion of
administrative remedies outlined by Congress in Title VII is
"both mandatory and unqualified, and is not to be given short
shrift." Rodriguez, 65 F. Supp.2d at 111.
Accordingly, defendant's motion to dismiss the complaint is
GRANTED with respect to plaintiffs Title VII claim. Plaintiffs
action is remanded to the EEOC for further proceedings mandated
by Title VII and consistent with this decision. See Stetz v.
Reeher Enterprises, Inc. ("Stetz II"), 70 F. Supp.2d 126
(N.D.N.Y. 1999); Rodriguez, 65 F. Supp.2d at 112-13; New York
v. Holiday Inns, Inc., 656 F. Supp. at 680. Having dismissed
plaintiffs federal cause of action, the Court declines to
exercise supplemental jurisdiction over plaintiffs state law
claim. See 28 U.S.C. § 1367(c)(3).
Based on the foregoing, defendants' motion to dismiss
plaintiffs complaint is GRANTED and plaintiff's claims are
REMANDED to the EEOC for compliance with 42 U.S.C. § 2000e-5.
IT IS SO ORDERED.