Corrente v. St. Joseph's Hosp. and Health Center

• Decision Date: 15 February 1990
• Docket Number: No. 89-CV-890.,89-CV-890.
• Parties: Paul J. CORRENTE, Plaintiff, v. ST. JOSEPH'S HOSPITAL AND HEALTH CENTER, Thomas Shatraw, and James Dishaw, Defendants.
• Court: U.S. District Court — Northern District of New York

730 F. Supp. 493

Paul J. CORRENTE, Plaintiff, v. ST. JOSEPH'S HOSPITAL AND HEALTH CENTER, Thomas Shatraw, and James Dishaw, Defendants.

No. 89-CV-890.

United States District Court, N.D. New York.

February 15, 1990.

COPYRIGHT MATERIAL OMITTED

Seidenberg, Strunk, & Goldenberg, Syracuse, N.Y. (Faith A. Seidenberg, of counsel), for plaintiff.

Costello, Cooney & Fearon, Syracuse, N.Y. (Frances A. Ciardullo, of counsel), for defendants.

MEMORANDUM-DECISION & ORDER

MUNSON, District Judge.

Plaintiff commenced this action on July 18, 1989 contending that he was unlawfully discharged by St. Joseph's Hospital and Health Center (St. Joseph's) in violation of the first and fourteenth amendments to the U.S. Constitution, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Section 296 of the New York Executive Law. Defendants have moved to dismiss plaintiff's entire complaint under Rule 56. The court heard oral argument on November 3, 1989 in Syracuse, New York and reserved decision on defendants' motion.

BACKGROUND

Plaintiff was employed by St. Joseph's as an operating engineer from 1985 until his termination in January of 1988 at which time he was 59 years old. The incident that gave rise to plaintiff's termination occurred in December of 1987 when plaintiff was assigned to replace an ethylene oxide tank.¹ Employees assigned to perform this function are required to wear a monitor badge which is designed to measure an individual's exposure to ethylene oxide. After determining that there was a leak, plaintiff removed the badge and placed it near the leak. He then replaced the badge on his shirt and made note of the leak in his logbook.² According to St. Joseph's, plaintiff did not record in his log book, however, the manner in which he exposed the badge, nor did he immediately inform his supervisors of this action. St. Joseph's contends that it was only after the test results of the badge were determined to be within OSHA's limits for short term exposure that plaintiff informed St. Joseph's of his conduct. St. Joseph's believed that plaintiff's purpose in placing the badge near the leak was to have it appear that he had inhaled a large dose of ethylene oxide so that he could assert a fraudulent injury claim. St. Joseph's terminated plaintiff asserting as a basis this claimed safety violation. (Defendants' Exhibit B). Plaintiff contends that the actual reason why St. Joseph's terminated his employment was due to his age. In this regard, plaintiff asserts that a co-worker under the age of 30 entered the tank room with him without even wearing a badge and was neither disciplined nor discharged. (Complaint at ¶ 22).

On February 19, 1988, plaintiff, proceeding pro se, filed a complaint with the New York State Division of Human Rights (the Division) contending that St. Joseph's termination of his employment constituted an unlawful discriminatory practice on the basis of age in violation of Article 15 of the New York Executive Law. The matter before the Division was still pending at the time plaintiff, through counsel, commenced this action by filing a complaint on July 18, 1989.

Defendants initially moved for partial summary judgment on August 11, 1989 seeking dismissal of plaintiff's claim under the first and fourteenth amendments, plaintiff's state law claim, and plaintiff's punitive and compensatory damage claims under the ADEA. With respect to plaintiff's fourteenth amendment claim, defendants argued that summary judgment was warranted because there was no state action. Defendants also contended that there was no subject matter jurisdiction for plaintiff's state law claim because under section 297(9) of the New York Executive Law once plaintiff filed a charge of age discrimination under State law with the Division, no subsequent court action involving the state claim was permissible. Finally, St. Joseph's asserted that plaintiff's requested relief for punitive and compensatory damages was not permitted under the ADEA.

On August 14, 1989, plaintiff's attorney made a telephone call to the Division seeking a final decision. Four days later, the Division issued a decision in which it concluded that there was no probable cause to believe that St. Joseph's engaged in unlawful age discrimination.³ After the Division's determination, defendants moved to dismiss plaintiff's entire complaint on the grounds that under the Supreme Court's decision in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Division's determination has preclusive effect and therefore acts to bar plaintiff's ADEA action.⁴

DISCUSSION

As noted, this action was commenced on July 18, 1989. The Division did not make its determination until August 18, 1989. A preliminary question thus presents itself: Does the Division's determination have any binding effect on this court given that it was rendered subsequent to the commencement of this action?

Section 633(a) of the ADEA provides that "nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of an action under this chapter such action shall supersede any State action." (emphasis added). The legislative history to section 633(a) indicates that "commencement of an action under this act shall be a stay on any State action previously commenced." H.R. No. 805, 90th Cong., 1st Session, reprinted in, 1967 U.S.Code Cong. & Ad.News 2213, 2219, 2224 (emphasis added); see also Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044, 1049 n. 7 (2d Cir.1982). Given this mandatory language, it would appear that Congress intended that upon the filing of a federal ADEA action the State proceeding is automatically stayed without any need for the plaintiff to seek an order from the federal court directing the state agency to suspend any further consideration of the state age discrimination charge.

Section 633(b) provides in relevant part as follows:

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. ...

Thus, if a state has enacted laws prohibiting age discrimination in employment and has established an agency authorized to provide relief from such discrimination, that state is deemed a "deferral state" and under section 633(b) an aggrieved party must commence a proceeding before such agency sixty days prior to initiating a federal action. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072-73, 60 L.Ed.2d 609 (1979) (holding that "resort to administrative remedies in deferral States by individual claimants is mandatory, not optional"). If the state agency resolves the age discrimination claim to the satisfaction of the aggrieved party, there is, of course, no need to resort to the federal courts. If, however, the state agency has not rendered a final decision within sixty days from the commencement of that proceeding, under section 633(b) the aggrieved party may then institute a federal action which under section 633(a) acts to stay any further consideration by the state agency until termination of the federal action.

In the present case, plaintiff filed his original charge of age discrimination with the Division⁵ in February of 1988. The extensive record compiled by the Division and plaintiff's ongoing correspondence with its staff, belies plaintiff's attorney's claim that the filing with the Division was merely pro forma, that is, merely for the purpose of satisfying the procedural requirements of section 633(b) of the ADEA. On the contrary, the Division's record reveals plaintiff's genuine desire to obtain relief from the agency regarding his claim of age discrimination. As stated earlier, plaintiff did not commence a federal action immediately after the sixty day period expired as permitted under section 633(b), but rather continued to seek redress from the state administrative machinery. Indeed, plaintiff commenced this federal action approximately a year and a half after he filed charges of age discrimination with the Division. Upon this filing, the proceeding before the Division was automatically stayed under section 633(a). However, as noted, on August 14, 1989 plaintiff's attorney telephoned the Division and asked it to proceed with a final determination. A question thus arises whether, as argued by defendants, this course of action as a matter of law waived the section 633(a) stay.

Plaintiff states in his memorandum of law that his counsel requested a final determination from the Division "in order to clear up the record." (Plaintiff's Memorandum of Law, Docket (Doc.) 10, at 8). Exactly why plaintiff's counsel felt compelled to do so is not at all clear. As indicated in the above discussion of the relationship between section 633(a) and 633(b), such action was not a prerequisite to pursuing plaintiff's federal remedies. One possible interpretation for counsel's course of action is a misunderstanding of the requirements for commencing a federal ADEA action. A more plausible interpretation, however, is suggested by defendants. Defendants claim that plaintiff requested that the Division make a final ruling in response to its summary judgment motion filed with this court on August 11, 1989. One of the arguments advanced by defendants in that motion was that plaintiff's pendent state law claim must be dismissed under Section 297(9) of the New York Executive Law because at the time there was a pending state administrative proceeding involving that claim. Section 297(9) provides in...