Opinion
01 CV. 8059 (ILG)
December 3, 2002
MEMORANDUM ORDER
SUMMARY
Plaintiff brings this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626 et. seq., the Older Worker's Benefits Protection Act ("OWBPA"), 29 U.S.C. § 626 (f), the Worker Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. § 2101 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. §§ 290 et. seq. and the New York City Human Rights Law ("NYCHRL"), Title 8 of the New York City Charter Administrative Code. She names as defendants Key Food Stores Cooperative, Inc. ("Key Food") and Grocery Haulers, Inc. ("Grocery Haulers"), the company that purchased Key Food's assets. Defendant Grocery Haulers has settled with the plaintiff. Defendant Key Food seeks to dismiss all of her claims except that alleging violation of the WARN.
FACTS
Plaintiff had been employed by Key Food as a typesetter for 24 years, and was 65 years of age when the acts at issue occurred. Her performance evaluations were always very good to excellent, she was never reprimanded, and her punctuality and attendance were excellent. On March 10, 2000, Key Food employees were notified that the company was going to reorganize or restructure itself, and planned to sell off a portion of its business, laying off a number of employees effective May 1, 2000. No further details were supplied, and no layoffs occurred on May 1. On June 22, 2000, the Key Food staff at the Brooklyn office received a letter from the CEO referring to the prior notice, and stating that the layoffs would not take place until July 22.
Thereafter, her department manager (aged 59) was transferred to a different position within Key Food, and the assistant manager (aged 40-41) was offered a job by Grocery Haulers. Two other employees in the department were interviewed and hired by Grocery Haulers: a female clerical worker aged 50, and a low level employee aged 34-36. Three other people in the department, consisting of the plaintiff, a male "pressman" aged 55 and a male "paste-up" artist aged 49 were never considered for employment by Grocery Haulers. On July 18, plaintiff was interviewed by another department at Key Food, as was the only other member of her department, another typesetter aged 44. The position was offered to the other typesetter. The three remaining employees were terminated on July 28.
On August 4, plaintiff was called by Key Food and told that she would have to sign a release to receive her final accrued leave check. Plaintiff refused to sign. Key Food withheld her check until an attorney she had hired called Key Food and got them to send it to her. She alleges that she never received a termination letter or formal notice of termination, but includes as an exhibit a letter dated August 1 that "confirm[s] that [her] employment with Key Food . . . has ceased," effective July 29, 2000.
On January 22, 2001, plaintiff filed a charge against defendants with the EEOC. The charge against Key Food was dismissed and a right-to-sue letter issued dated August 16, 2001. The charge against Grocery Haulers was also dismissed and a right-to-sue letter issued dated August 28, 2001. While it is unstated when the first of these letters was received, the second was received by plaintiff's attorney on September 5, 2001, and by plaintiff a few days later. The complaint in this action was filed on December 3, 2001.
DISCUSSION
I. ADEA Claim: Failure to File Within 90 Days of Receipt of Right-to-Sue Letter
The complaint's first claim for relief is asserted under the ADEA. To be timely, a claim under the ADEA must be filed within 90 days of receipt of a right-to-sue letter. 29 U.S.C. § 626 (e). Here, the right-to-sue-letter pertaining to Key Food was mailed on August 16. Plaintiff's attorney argues that since the letter was sent to him and not to the plaintiff, its receipt by him did not start the running of the 90-day period. This position is squarely rejected by the pertinent case law, which holds that receipt by a party's representative is sufficient to start the period running. See Irwin v. Dept. of of Veterans' Affairs, 498 U.S. 89, 92-93 (1990); Ogodor v. New York, 2001 WL 210192, *3 (S.D.N.Y.). Since neither the complaint nor the briefs indicate when plaintiff's attorney received the letter, which was properly addressed to him and without impediment to its delivery, the court applies the presumption in Fed.R.Civ.P. 6(e) that a letter is received three days after it is mailed. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1 (1984); Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2d Cir. 1996). The date of receipt of the letter is therefore presumed to be August 19, which is more than 90 days prior to the filing of this action on December 3.
Plaintiff's attorney contends that the action against Key Food was timely filed. He notes that the charges against Key Food and Grocery Haulers were filed jointly, and "arbitrarily" and "artificially" assigned different case numbers by the EEOC. He argues that therefore the date that the right-to-sue letter as against Grocery Haulers was received should be the date on which the 90 day period began running as to both defendants. While this is a creative argument, plaintiff's counsel cannot cite, nor has this court been able to discover, any case law to support it. In light of the absence of any such authority, it was incumbent upon counsel to file the action within 90 days of the receipt of the first (Key Food) right-to-sue letter, rather than ignore it in contemplation of another letter arriving later. In fact, since the right-to-sue letter as to Grocery Haulers was received on September 5, there was ample time (from September 5 to November 17) to file a complaint naming both defendants within the 90 day period from receipt of the first letter. Therefore, even though plaintiff takes issue with the EEOC's decision to assign two different case numbers to the charges against each of the two defendants, plaintiff was in no way prejudiced by that decision. See Vollinger v. Merrill Lynch Co., 2002 U.S. Dist. Lexis 6020, *10-11 (S.D.N.Y. April 9, 2002) ("'in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.'") (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982); cf. Skibinski v. Zevnick, Horton, Guilbord, McGovern, Palmer Fognani, LLP, 2002 U.S. Dist. LEXIS 6630, *5 (S.D.N.Y. April 15, 2002) (difficulty obtaining documents from the EEOC does not excuse lateness of filing made more than 90 days after receipt of a right-to-sue letter). Plaintiff's ADEA claim against Key Food is therefore dismissed as time-barred.
II. Claims under the OWBPA
The first claim for relief in the complaint also alleges a violation of the OWBPA as a separate cause of action. Plaintiff concedes, however, that violation of the OWBPA does not give rise to a cause of action separate from the alleged violation of the ADEA. That claim is therefore dismissed together with the court's dismissal of the first claim for relief.
III. Claims Under the NYSHRL and the NYCHRL: Election of Remedies
The third and fourth claims for relief arise under the NYSHRL and the NYCHRL. Each provides that a party who has filed a charge with the State Division of Human Rights ("DHR") is precluded from bringing a civil action based on the same claim(s). N.Y. Exec. L. § 297(9); NYC Administrative Code and Charter § 8-502. Therefore, these claims would be barred by the doctrine of election of remedy if plaintiff had filed a charge with the DHR based on the same facts. See Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62, 75 (2d Cir. 2000). There is no indication here, however, that a charge was ever filed with the DHR, and plaintiff never took any action to correct this apparent oversight so as to pursue the charge in that forum. She therefore has not filed a charge with the DHR, and has not elected an administrative remedy.
The case of Hernandez v. VK Foodshop, Inc., 2000 N.Y. Misc. LEXIS 520 (Sup.Ct. April 10, 2000), upon which defendants rely, is distinguishable. In that case, the plaintiff's complaint was filed with the DHR, and she pursued it in that forum until she sought to have it dismissed after she had filed her civil action. Rather thanHernandez, the court finds this case more similar to EEOC v. Rotary Corp., 164 F. Supp.2d 306 (N.D.N.Y. 2001). In Rotary Corp., plaintiff filed a charge with the EEOC and accompanied it with an affidavit specifically requesting a dual filing with the DHR. Id. at 308. The EEOC, however, never forwarded the charge, and the DHR never received any notice of the claim or began an investigation into it. Id. The court held that plaintiff had never "filed" a charge with the DHR, and thus was not barred from bringing suit by the doctrine of election of remedy. Specifically, the court stated that "a charge of discrimination filed with the EEOC cannot be considered filed with the DHR for election of remedy purposes until such time as the complaint is actually forwarded to the DHR by EEOC, and DHR opens a file." Id. at 309. Since there is no indication in this case that the DHR ever received the complaint or opened a file, the court finds that plaintiff's claims under the NYSHRL and the NYCHRL are not barred by the doctrine of election of remedy.
In any event, Hernandez is not binding authority on this Court.
IV. Punitive Damages Under the NYSHRL
Key Food moves to have the complaint dismissed to the extent that it seeks punitive damages under the NYSHRL. Plaintiff does not contest this point, but merely alerts the court that such damages are recoverable under the NYCHRL. The motion to dismiss the complaint to the extent that it seeks punitive damages under the NYSHRL is therefore granted.
CONCLUSION
For all of the above reasons, Key Food's motion to dismiss the first claim for relief under the ADEA and the OWBPA is granted. Its motion to dismiss the third and fourth claims for relief under the NYSHRL and the NYCHRL are denied. Its motion to dismiss the third claim for relief to the extent that it seeks punitive damages under the NYSHRL is granted.
SO ORDERED.