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VOLLINGER v. MERRILL LYNCH & CO.

April 8, 2002

ELINOR VOLLINGER, PLAINTIFF,
V.
MERRILL LYNCH & CO., INC., DEFENDANT.



The opinion of the court was delivered by: Constance Baker Motley, U.S. District Judge

  MEMORANDUM OPINION & ORDER

I. INTRODUCTION

Plaintiff Elinor Vollinger filed this action against her former employer, Merrill Lynch & Co., Inc., in April 2001, alleging discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law § 290 et seq. In June 2001 Ms. Vollinger filed an amended complaint, dropping the NYSHRL claims, and adding claims under the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq.

Now before the court is defendant's motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the plaintiff's claims are barred by relevant statutes of limitation. For the reasons stated in this opinion, defendant's motion will be granted. Plaintiff's ADEA claims will be dismissed with prejudice, and the court will decline to exercise jurisdiction over the pendent NYCHRL claims, dismissing them without prejudice.

II. FACTUAL BACKGROUND

Plaintiff alleges that she was hired by defendant as an executive secretary in its Investment Banking Division in February 1984. Am. Compl. ¶ 6. When plaintiff's supervisor was transferred to another department in May 1991, defendant allegedly began to treat plaintiff differently and significantly worse than younger secretaries in her division, despite the fact that she had a record of outstanding performance appraisals. Id. ¶¶ 7, 8. Specifically, plaintiff alleges that she was not permitted to transfer with her supervisor, despite the fact that it was company policy to transfer secretaries with the managers for whom they worked, and further, that she was not given the same opportunity to transfer to other secretarial positions over the next two years despite the fact that other, younger secretaries were given such opportunities. Id. ¶¶ 9-11. Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) on March 5, 1993. Id. ¶ 15. She was placed on probation on March 24, 1993, and on June 17, 1993, she was discharged. Id. ¶ 16.

III. PROCEDURAL BACKGROUND

The procedural history subsequent to the filing of the EEOC charge on March 5, 1993, determines the outcome of the instant motion. Unless otherwise indicated, the following recitation of the procedural history is undisputed.

On March 5, 1993, plaintiff filed a charge of age discrimination with the EEOC. Am. Compl. ¶ 15; Clifton 8/21/01 Decl. Ex. A. Under the terms of a Worksharing Agreement between the EEOC and the New York State Division of Human Rights ("State Division"), the EEOC operates as an agent of the State Division for purposes of accepting charges of discrimination. Id. Ex. S.

On March 24, 1993, plaintiff was placed on probation by defendant, and on June 17, 1993, she was discharged. Am. Compl. ¶ 16.

Almost one year later, on June 13, 1994, plaintiff filed a second complaint with the State Division against defendant, alleging retaliation for having filed the initial March 5, 1993, age discrimination complaint. Clifton 8/21/01 Decl. Ex. B. Plaintiff alleged in this complaint filed with the State Division that defendant had violated "Article 15 of the New York Executive Law," i.e., the NYSHRL, but plaintiff did not allege violations of the New York City Administrative Code, i.e., the NYCHRL. Id.

On January 29, 1996, the State Division issued two Determinations and Orders in connection with the March 5, 1993, discrimination complaint and the June 13, 1994, retaliation complaint. Id. Exs. C, D. In both cases, the State Division found no probable cause that defendant had discriminated or retaliated against plaintiff. Id.

On February 15, 1996, plaintiff's attorney requested reconsideration of the two Determinations. Id. Ex. E. A copy of that request was served on defendant, and on March 15, 1996, defendant responded to the State Division, opposing the request for reconsideration. Id. Ex. F.

On April 25, 1996, the State Division issued an Order Granting Reopening, stating that "further investigation" was necessary. Id. Ex. C.

On September 20, 1996, the EEOC District Director issued his own Determination in which he wrote, "having examined the [State Division's] findings and the record presented, I conclude that the evidence obtained during the investigation does not establish violations of the statutes." Id. Ex. I. This Determination included a notice of plaintiff's right to sue, informing her that if she wished to bring a lawsuit against defendant, it must be brought "within 2 years of the date of alleged discrimination and within 90 days of receipt of this letter, whichever is earlier, in order to assure the right to sue." Id. (original emphasis).

On October 2, 1996, plaintiff advised the EEOC by letter that the State Division had reopened its investigation and requested that the EEOC's Determination be withdrawn pending completion of the State Division investigation. Id. Ex. J. Plaintiff claims that defendant was served with a copy of ...


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