Opinion
99 CIV. 5058 (DLC)
May 17, 2000
Todd J. Krouner, LAW OFFICES OF TODD J. KROUNER, for plaintiff.
Guy Petrillo, Yun Lee, SWIDLER BERLIN SHEREFF FRIEDMAN; LLP, Gerald S. Hartman, Alisa H. Reff, SWIDLER BERLIN SHEREFF FRIEDMAN, LLP for defendants.
MEMORANDUM OPINION ORDER
Plaintiff Gloria Huang brought this age and sexual discrimination action in July 1999, bringing several claims, including claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, and claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. In their amended answer, defendants alleged as their eighth and ninth affirmative defenses that plaintiff's Title VII and ADEA claims were barred because they were filed before the expiration of the waiting period for administrative review. Plaintiff now moves to strike those affirmative defenses; defendants have made a cross motion for partial summary judgment on those defenses. For the reasons set forth below, plaintiff's motion is granted and defendants' cross motion is denied.
BACKGROUND
Plaintiff, a 50-year-old Chinese woman, alleges that defendant Richard landoli, her supervisor at Gruner + Jahr USA Publishing, made disparaging references to her age, sex and national origin, and that he wrongfully terminated her employment. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC").on June 24, 1999. On July 6, 1999, pursuant to plaintiff's request, the EEOC issued a "right-to-sue" letter, certifying that it was probable that the EEOC would not complete an investigation of her allegations within 180 days. Plaintiff filed this action shortly thereafter.
DISCUSSION
Because defendants have moved for summary judgment on their eighth and ninth affirmative defenses, and because the Court has considered the evidence submitted by the parties as well as the pleadings in considering those defenses, the Court will treat plaintiff's motion to strike those defenses as a motion for summary judgment on those defenses. See Horn v. Greenwood Rehabilitation Center, Inc., No. 84 Civ. 312, 1984 WL 531 at *1 (S.D.N.Y. June 28, 1984). Summary judgment may be granted where the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. Here, the facts relevant to the issue at hand are not in dispute; the Court is presented with purely legal issues.
I. The Title VII Claims
Title VII provides:
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 . . . the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent.42 U.S.C. § 2000e-5 (f)(1). Here, the EEOC issued its right-to-sue letter pursuant to 29 C.F.R. § 1601.28 (a)(2), which provides:
When a person claiming to be aggrieved requests. that a notice of right to sue be issued . . . the Commission may issue such notice . . . at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided. it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.29 C.F.R. § 1601.28 (a)(2). Defendants argue that Section 1601.28(a)(2) is invalid because Section 2000e-5(f)(1) requires that the 180-day period expire before a complainant is permitted to sue.
The Second Circuit has not, yet ruled on this issue, and courts that have are sharply divided. Several courts in this District have held Section 1601.28(a)(2) invalid. See Olzewski v. Bloomberg L.P., No. 96 Civ. 3393 (RPP), 1997 WL 375690 at *4 (S.D.N.Y. July 7, 1997); Henschke v. New York Hosp.-Cornell Med. Ctr., 821 F. Supp. 166, 170 (S.D.N.Y. 1993); Spencer v. Banco Real. S.A., 87 F.R.D. 739, 743-45 (S.D.N.Y. 1980). These courts were joined recently by the District of Columbia Circuit inMartini v. Federal Nat'l Mortgage Assoc., 178 F.3d 1336 (D.C. Cir. 1999), which held that permitting the EEOC to issue early right-to-sue letters improperly permitted it to circumvent its own obligation to investigate. See id. at 1346-47.
Many courts, however, have upheld Section 1601.28(a)(2), including the Eleventh and Ninth Circuits, see Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061 (11th Cir. 1994), Brown v. Puget Sound Elec. Apprenticeship Training Trust, 732 F.2d 726, 729 (9th Cir. 1984), and several courts in this District. See Nodelman v. Gruner Jahr USA Publishing, 98 Civ. 1231 (LMM), 2000 WL 502858 at *5 (S.D.N.Y. April 26, 2000); Kahn v. Objective Solutions. Int'l, 86 F. Supp.2d 377 (S.D.N.Y. 2000); Palumbo v. Lufthansa German Airlines, No. 98 Civ. 5005 (HB), 1999 WL 540446 at *2 (S.D.N.Y. July 26, 1999); Figueira v. Black Entertainment Television. Inc., 944 F. Supp. 299, 304 (S.D.N.Y. 1996).
This Court joins that latter group in upholding Section 1601.28(a)(2). As is discussed more fully in the opinions cited above, and most recently by Judge McKenna in Nodelman, Section 1601.28(a)(2) conflicts neither with the language of Section 2000e-5(f)(1), nor with its purpose, which is to ensure that parties are not required to wait indefinitely for administrative action. See Nodelman, 2000 WL 502858 at *5 Section 1601.28(a)(2) is "based on a permissible construction of the statute," and therefore must be upheld. Figueira, 944 F. Supp. at 305 (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, 476 U.S. 837, 843 (1984)).
II. The ADRA Claims
Defendants also argue that summary judgment in their favor is appropriate on plaintiff's ADEA claims, because plaintiff filed this action less than sixty days after filing her complaint with the EEOC, in contravention, of 29 U.S.C. § 626 (d), which imposes a 60-day waiting period. Plaintiff argues that by filing an amended complaint on October 25, 1999, after the expiration of the 60-day period, she cured any defect in the timing of her original complaint. Plaintiff relies on Wilson v. Westinghouse Electric Corp., 838 F.2d 286 (8th Cir. 1988), where the Eighth Circuit refused to turn the "premature inclusion of [the plaintiff's] rehire claim into a irretrievable mistake that bars jurisdiction for the duration of this lawsuit." Id. at 289.
While the Second Circuit has not addressed this issue directly, it has held that "[f]ailure to met the sixty day notice requirements of Sections 626(d) and 633(b) . . . does terminate the individual's right to commence a private civil action in his own name," although the Department of Labor would retain the right to bring an enforcement action on the complainant's behalf.Reich v. Dow Badische Company, 575 F.2d 363, 367-68 (2d Cir. 1. 1978) (holding the plaintiff's oral statement of his intent to sue insufficient to meet the notice requirement of 29 U.S.C. § 333 (b)). There, however, curing the procedural flaw with an amended pleading was not a possibility, as the plaintiff's suit would have been time-barred had he waited for the 60-day period to expire before filing his suit. See id. at 367 n. 2.
The Court holds that plaintiff's failure to observe the 60-day waiting period before filing her original complaint was cured by her filing her amended complaint after the 60-day period had expired. Neither Section 626(d) nor Reich requires the Court to hold that a plaintiff, by filing suit before the expiration of the 60-day period, extinguishes, her right to bring a private cause of action in the future, where no independent factor such as a statute of limitations makes it impossible for her to bring suit after the 60 days have passed.
CONCLUSION
For the reasons discussed above, partial summary judgment on defendants' eighth and ninth affirmative defenses is granted in favor of plaintiff. Defendants' cross-motion for partial summary judgment is denied.
SO ORDERED:
Dated: New York, New York May 16, 2000