damages, injunctive relief, costs and attorneys' fees.
 Currently before the court is a motion made by the International
defendants for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Plaintiff has entered opposition to this motion.
The court notes that plaintiff appears pro se and the court is required
to review pro se complaints more liberally than those prepared by an
attorney, and should be especially hesitant to dismiss for procedural
deficiencies where that failure is by a pro se litigant. Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Spencer v.
Doe, 139 F.3d 107, 112 (2d Cir. 1998).
 A motion for judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c) is analyzed under the same standard applicable to a motion to
dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied,
513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). Consequently, judgment
on the pleading is appropriate only if, after drawing all reasonable
inferences in favor of the non-moving party, it is apparent from the
pleadings that the moving party is entitled to judgment as a matter of
law. United States v. Weisz, 914 F. Supp. 1050, 1052 (S.D.N Y 1996). In
deciding a motion for judgment on the pleadings, a court may consider the
factual allegations in the complaint, which are accepted as true,
documents attached to the complaint as an exhibit or incorporated by
reference, matters of which judicial notice may be taken, or to documents
either in plaintiffs possession or of which plaintiff had knowledge and
relied on in bringing suit. Brass v. American Film Technologies, Inc.,
987 F.2d 142, 150 (2d Cir. 1993).
A finding that plaintiff has had notice of documents used by defendants
in support of their motion for judgment on the pleadings is significant
since the problem that usually arises when a court reviews statements
extraneous to a complaint is the lack of notice to the plaintiff that
they may be considered. To meet this notice requirement, 12(c) motions
are often converted into summary judgment motions. However, when
plaintiff has actual notice of all the information in the movant's
papers, and has relied on these papers in framing the complaint the
necessity for turning the Rule 12(c) motion into one under Rule 56 is
In support of their motion, the International defendants have submitted
copies of the IBEW/NECA collective bargaining agreement (Exhibit A), the
charges file by plaintiff with the EEOC (Exhibits B and C), and the
right-to-sue letter issued to plaintiff by the EEOC. These defendants
maintain that plaintiff did not attach these documents to the complaint
even though he relied upon their content in instituting this lawsuit by
alleging that several paragraphs of the collective bargaining agreement
were used by the IBEW and Local 43 to discriminate against him because of
his age, (Complaint ¶ ¶ 25-30), and to establish jurisdictional
requisites to instituting this action, by alleging that he had filed a
charge with the EEOC, (Complaint ¶ ¶ 17-18), and was issued a
right-to-sue letter by the EEOC (Complaint ¶ 19).
Plaintiff does not deny that he had notice of these documents. Although
these documents were not attached to plaintiffs complaint, the court
finds that they are documents of which plaintiff had notice, and upon
which plaintiff relied upon in bringing this action. Therefore, they may
properly be considered by the court on a Rule 12(b) motion for judgment on
the pleadings. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42,
47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118
L.Ed.2d 208 (1992).
The International defendants contend that plaintiffs claim against it
must b dismissed because the IBEW was no named in a charge filed with the
the NYSDHR. In Vital v. Interfaith Medical Center, 168 F.3d 615, the
Second Circuit Court of Appeals held that a Title VII or ADEA complainant
must first file a charge against a party with the EEOC or an authorized
state agency before the complainant can sue that part in federal court.
Id. at 619 (citing 42 U.S.C. § 2000e(f)(1)). The object of this
requirement is "to notify the charged party of the alleged violation and
also [to] bring the party before the EEOC, making possible effectuation
of its primary goal of securing voluntary compliance with its mandates."
Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130,
657 F.2d 890, 905 (7th Cir.), cert. denied, 455 U.S. 1017, 102 S.Ct.
1710, 72 L.Ed.2d 134, (1982).
 The Circuit further held that because the administrative charges
are generally filed by parties not versed in the vagaries of Title VII or
the ADEA and its jurisdictional and pleading requirements, the courts
recognize an exception to the exhaustion rule which permits a Title VII
or ADEA action to proceed against an unnamed party "where there is clear
identity of interest between the unnamed defendant and the party named in
the administrative charge." Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.
1991). The following four factors must be considered by the court in
deciding whether an identity of interests exists:
1) whether the role of the unnamed party could through reasonable effort
by the complainant be ascertained at the time of the filing of the EEOC
2) whether, under the circumstances, the interests of a [named] party are
so similar as the unnamed party's that for the purpose of obtaining
voluntary conciliation and compliance it would be unnecessary to include
the unnamed party in the EEOC proceedings;
3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party;
4) whether the unnamed party has in some way represented to the
complainant that its relationship with the complainant is to be through
the named party.
Johnson v. Palma, 931 F.2d at 209-10, (quoting Glus v. G.C. Murphy Co.,
562 F.2d 880, 888 (3d Cir. 1977)).
Because it is undisputed that plaintiff failed to file an
administrative complaint against the International defendants with the
NYSDHR or the EEOC and that the EEOC did not mention these defendants in
its Determination and Right-to-Sue letter, the court will apply the above
factors to the instant case.
 Applying the four factors here, it is clear that the identity of
interest exception does not save plaintiffs ADEA claim. First, plaintiff
cannot argue that at the time of his initial EEOC filing he did not know
of what role he considered the International defendants played in the
alleged misconduct of the other defendants. Namely, that defendant Local
43 was the agent of the International defendants and liable for the acts
of its agent. Plaintiff alleges that he was discriminated against over a
ten year period, and three years have elapsed since he filed his initial
administrative charge. If the International defendants had participated
in the discriminatory actions alleged in this case, plaintiff would have
undoubtedly been able to discern it at some point during this thirteen
year period. Second, the interests of the International defendants and
the other defendants are sufficiently disparate that the International
defendants' participation would be necessary to voluntary conciliation.
The complaint's allegations are concerned with the operation of a hiring
hall, and certain provisions in the collective bargaining agreement.
Local 43 operates the hiring hall and the International defendants are
not party to the collective bargaining agreement. The focus of the
complaint is the relationship between plaintiff and defendants Local 43
and the electrical contractors, the International defendants were not
part of this nexus. Third, the
absence of the International defendants from the administrative
proceedings has prejudiced them, since they have not been provided the
opportunity to set forth their position that they had no involvement in
the alleged discriminatory administration of the collective bargaining
agreement, and, furthermore, that they were not vicariously liable for
the conduct of their affiliated unions. Fourth, plaintiff does not allege
that the International defendants represented to him that his
relationship with them would be through the named party, defendant Local
Plaintiffs failure to name the International defendants in his
administrative charge bars his ADEA claim against them.
The complaint in this action alleges no specific acts of wrongdoing on
the part of the International defendants, paragraph 37 merely asserts
that the defendant union (Local 43) is the agent of the defendant IBEW
(the International defendants) and the IBEW is liable for any acts of its
 "An international union has no independent duty to intervene in the
affairs of its local chapters, even where the international has knowledge
of the local's unlawful acts." Phelan v. Local 305, United Association of
Journeymen, 973 F.2d 1050, 1061 (2d Cir. 1992), cert. denied, 507 U.S. 972,
113 S.Ct. 1415, 122 L.Ed.2d 785 (1993) (citing Carbon Fuel Co. v. United
Mine Workers, 444 U.S. 212, 217-18, 100 S.Ct. 410, 414-15, 62 L.Ed.2d 394
(1979)). "Common law agency principles govern an international union's
liability for actions of its local chapters or their officers." Rodonich
v. House Wreckers Union, Local 95, 817 F.2d 967, 972-73 (2d Cir. 1987).
Thus, the International defendants can only be held liable for
participating or acquiescing in the alleged discrimination scheme if,
having knowledge of the material facts involved, they evidenced an
intention to ratify the schemes. Id. The complaint contains no
allegations that the International defendants controlled, authorized or
otherwise ratified the act of defendant Local 43. Without such
allegations, the complaint fails to state a claim upon which relief may
be granted against the International defendants.
The International defendants further propound that plaintiffs state and
federal claims are barred by the applicable statutes of limitations. The
complaint, outlines a series of purported discriminatory conduct actions
starting in 1989 and ending with plaintiff filing a charge with the
National Labor Relations Board ("NLRB") on March 20, 1997. (Complaint
¶ ¶ 30-36). Plaintiff never filed a discrimination charge against
the International defendants, but named them as defendants in this
lawsuit, which he filed on July 28, 2000.
 The New York Human Rights Law, Executive Law § 297, sets up an
election of remedies procedure. Individuals seeking assuagement for
employment discrimination under state law may either bring their claim in
a proper court or file a complaint before the NYSDHR, but they may not do
both. "Stated simply, the remedies are mutually exclusive." West v.
Technical Aid Corp., 111 Misc.2d 23, 24, 443 N.Y.S.2d 318, (1981).
Construing the state statute and the AEDA literally, their combined
effect means that a plaintiff may not bring a court action alleging both
federal and state age discrimination claims. The exception to this rule
is that under N.Y.Exec. Law § 297(9) a plaintiff is not barred from
bringing a later court action on a state law claim if his NYSDHR
complaint has been dismissed "on the grounds of administrative
If a person elects to file a complaint with the NYSDHR, it must be
filed within one year of the alleged unlawful discriminatory conduct.
N.Y.Exec.Law § 297(5). If the person chooses instead to institute
legal proceedings, the suit must be commenced within three years of the
unlawful discriminatory conduct. N.Y.Civ.Prac.L. & R. § 214(2).
Plaintiff's claim under the New York Human Rights Law is barred because
he failed to file a charge against the International defendants within
of the alleged transgression, or file the case at bar within three years
Prior to initiating an ADEA legal proceeding, the plaintiff must file a
charge with the EEOC 29 U.S.C. § 626(d)(10-(2)). There are two
limitation periods for filing the charge with the EEOC, 300 days if it is
filed in a state that has its own age discrimination remedial agency, a
"deferral state," 180 days if the state is without such an agency.
29 U.S.C. § 626(d)(1)-(2). New York is a deferral state under the
ADEA because it has a law prohibiting age discrimination and the NYSDHR.
Brodsky v. City University of New York, 56 F.3d 8, 9 (2d Cir. 1995), and
a complainant must file an EEOC charge within 300 days after the alleged
discriminatory event. Id.
Since plaintiff failed to file his ADEA claim with the EEOC within
three hundred days (300) of the alleged violation, this claim is time
baited as against the International defeats.
Accordingly, the motion for judgment on the pleadings made by the
International Brotherhood of Electrical Workers and J.J. Barry, as
President of the International Brotherhood of Electrical Workers (the
International defendants) is GRANTED and the complaint is DISMISSED as
against these two defendants.
IT IS SO ORDERED
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