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