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Duttweiller v. Upstate Building Maintenance Companies

November 20, 2006

CHRISTINE DUTTWEILLER, PLAINTIFF,
v.
UPSTATE BUILDING MAINTENANCE COMPANIES, INC.; EAGLE JANITORIAL INC.; EAGLE JANITORIAL SERVICES, INC.; EAGLE BUILDING SERVICES INC.; LOCAL 200 UNITED SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

There are three motions before the Court: first, the motion (Dkt. No. 16) by defendant Service Employees International Union, Local 200 United, to dismiss the complaint on the grounds of lack of subject-matter jurisdiction and failure to state a claim, Fed. R. Civ. P. 12(b)(1),(6); second, the motion (Dkt. No. 18) by defendant Eagle Janitorial Inc. to dismiss the complaint on the same grounds; and third, the cross motion (Dkt. No. 21) by plaintiff for leave to amend the complaint, for a stay, and for discovery.

In support of their dismissal motions, defendants point out that plaintiff has not exhausted her administrative remedies because she has not obtained a right-to-sue letter from the Equal Employment Opportunities Commission ("EEOC"). Such a letter is a statutory prerequisite to suit under the Americans with Disabilities Act ("ADA," 42 U.S.C. § 12101 et seq.), or Title VII of the Civil Rights Act ("Title VII," 42 U.S.C. §2000e-5 et seq.). See 42 U.S.C. §§ 2000e-5(e)(1); 12117(a).

Plaintiff concedes that she has not yet obtained a right-to-sue letter. In her attorney's affidavit (Dkt. No. 20) she claims:

The plaintiff has filed with the Human Rights Commission against the employer

Eagle Janitorial and against the union SEIU as follows:

a. On or about 11/4/05 I filed the charge of discrimination with New York Division of Human Rights against Eagle Janitorial Services. Receipt acknowledged March 24, 2006. ***

b. On or about 11/4/05 I filed a charge of discrimination with the New York Division of Human Rights against the SEIU receipt acknowledged 3/24/06. *** Plaintiff's counsel's affidavit states in paragraph 3:

The complaint has three parts:

Part 1: a breach of contract claim against the employer and Union

a) firing without proving just cause as required by the contract (Article IX)

b) breach of the clause requiring no discrimination based on handicap (Art VI/VII)

c) failure to arbitrate the contract (Art XXIV)

Part 2: a claim against the Union for a failure to fairly ...


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