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June 21, 2000


The opinion of the court was delivered by: Mordue, District Judge.



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 action.


Regarding the issuance of Right to Sue letters by the EEOC and the timing of civil suits, Title VII states in pertinent part as follows:

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 same employer.*fn3 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. ยง 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 ...

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