Patel v. Lutheran Medical Center, Inc.

• Decision Date: 29 January 1991
• Docket Number: No. CV-88-2050.,CV-88-2050.
• Citation: 753 F. Supp. 1070
• Parties: Harilal PATEL, M.D., Plaintiff, v. LUTHERAN MEDICAL CENTER, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

753 F. Supp. 1070

Harilal PATEL, M.D., Plaintiff, v. LUTHERAN MEDICAL CENTER, INC., Defendant.

No. CV-88-2050.

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

December 24, 1990.

As Modified January 29, 1991.

Hockert & Flamm, New York City, for plaintiff.

Wolff, Seminara & Mitherz, New York City, for defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff brings this action for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., New York Human Rights Law, Exec.Law § 296 et seq., and under state common law for tortious interference with contract.

Plaintiff alleges that he was employed by Lutheran Medical Center (LMC) as Chief of its Ambulatory Services Clinic until he was informed on June 23, 1987 of his termination effective July 28, 1987. Plaintiff alleges that he was harassed and terminated because of his age, and that he filed complaints on June 15, 1987 and July 6, 1987 against LMC with the Equal Employment Opportunity Commission (EEOC) based on age discrimination. He further alleges that in retaliation for his bringing a claim, LMC lured his employee, Dr. Kumar, from his business relationship with plaintiff, and that he filed a charge with the EEOC on March 29, 1989 for this retaliatory action.

His complaint alleges six causes of action. The first three, not at issue in this motion, are pursuant to the ADEA. The fourth cause of action is brought pursuant to the ADEA for retaliation by tortious interference with contract. The fifth cause of action is brought under New York Human Rights Law, Exec.Law § 296, a state employment discrimination statute. And the sixth cause of action is for common law tortious interference with contract. This motion to dismiss, based on multiple grounds, is aimed at part of the fourth and the entire fifth and sixth causes of action. Having evaluated each of those grounds, for the reasons below the court grants defendant's motion as to the fourth and sixth causes of action, and denies the motion as to the fifth.

I. Prior State Proceeding.

Defendant first moves to dismiss that portion of plaintiff's fourth cause of action which alleges that defendant retaliated against him for bringing age discrimination charges by interfering with his employment contract with Dr. Kumar, on the ground that it is barred for plaintiff's failure to first bring this claim in a state proceeding. ADEA § 14(b), 29 U.S.C. § 633(b), provides that "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." Defendant is quite correct that the Second Circuit has "confirmed the need for the commencement of state proceedings as an essential prerequisite to the institution of a civil action in a federal court under ADEA." Defendant's Memorandum, at 6. However, the Second Circuit has also explicitly held that once a claim is brought before the proper state agency, a plaintiff need not file a second claim with such agency in order to assert that second claim in federal court if the claim is "reasonably related" to the initial claim. Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2nd Cir.1981). In that case, the court held:

Although § 14(b) of the ADEA, 29 U.S.C. § 633(b) (1976), requires a claimant to file a complaint with the appropriate state agency before proceeding in a federal court, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the section is to be construed to accord with the similar requirements of § 706(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(c) (1976), 441 U.S. at 756, 99 S.Ct. at 2071. Under Title VII, we have held that a claimant need not file additional claims with the federal administrative agency when those claims, arising subsequent to the initial filing are reasonably related to the allegations of an initial claim that was properly filed. Kirkland v. Buffalo Bd. of Ed., 622 F.2d 1066 (2nd. Cir.1980). Similarly here, we conclude that plaintiff, having brought his age discrimination claim to the state agency, did not have to file a second claim with that agency in order to assert his retaliation claim in federal court.

Id. Defendant concedes that the initial claim was properly filed.¹ On the issue of what constitutes "reasonably related," Kirkland provides guidance. In that case, plaintiff's later claim, which the court permitted to be litigated, was found to be "reasonably related" when it was "in retaliation for plaintiff's initiation of litigation" over the employment discrimination claim. Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir.1980). Since Patel's claim of tortious interference with contract is said in his fourth cause of action to be in retaliation for his filing charges of age discrimination with the EEOC, under Kirkland it is reasonably related. Thus, the court's holding in Goodman v. Heublein applies in this case to obviate the requirement of a prior state filing on this later claim. This ground for dismissal is therefore rejected.

II. Statute of Limitations.

a. The ADEA Statute of Limitations on Civil Actions.

Defendant next moves to dismiss the retaliation claim under § 626(d) on the ground that it is barred by the ADEA statute of limitations.

Limitation of actions under the ADEA is governed by 29 U.S.C. §§ 255, 259. 29 U.S.C. § 626(e). Section 255 provides that an action under the ADEA must be commenced "within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255. Plaintiff, in his fourth cause of action, First Amended Complaint, states:

28. The actions of Defendant in terminating plaintiff and for inducing Dr. Kumar to terminate his relationship with Plaintiff were in retaliation for Plaintiff's having filed charges of age discrimination with the EEOC and this suit and thus constituted willful violations of rights secured to Plaintiff by Sec. 623(d) of the ADEA.

Because "willfulness" is alleged, the claim is subject to the three year statute of limitations. The act complained of allegedly occurred in June or July 1988, and the complaint was filed on August 27, 1990. The complaint does, therefore, state a timely cause of action for retaliation.

b. 300-Day Limit on Filing of EEOC Claims.

Defendant also contends that plaintiff's fourth cause of action is barred as untimely because no charge was filed with the EEOC within 300 days of the alleged discrimination, pursuant to 29 U.S.C. § 626(d)(2). However, under the Second Circuit's holding in Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2nd Cir.1980), no subsequent claim need be filed with the EEOC when the basis of a subsequent claim would be reasonably related to that of an earlier claim timely filed:

Under Title VII, we have held that a claimant need not file additional claims with the federal administrative agency when those claims, arising subsequent to the initial filing, are reasonably related to the allegations of an initial claim that was properly filed.

Goodman v. Heublein, 645 F.2d at 131 (noting that § 14(b) of the ADEA, 29 U.S.C. § 633(b), "is to be construed to accord with the similar requirements of § 706(c) of Title VII of the Civil Rights Act of 1964.") Thus, plaintiff did not have to file at all with the EEOC on the retaliation charge, let alone within 300 days. This basis for dismissal of part of the fourth cause of action is therefore rejected.

III. Failure to State a Claim for Retaliation under the ADEA.

Defendant next argues that tortious interference with the Patel-Kumar contract is not cognizable as a discriminatory practice under the ADEA. Defendant's argument has two elements. First, defendant argues that the ADEA only bars discriminatory acts against employees, and that since the employment relationship between plaintiff and defendant was terminated on July 28, 1987, no cause of action can lie. Second, defendant argues that even if a cause of action could be asserted by a former employee for retaliation, it couldn't be based on this allegation of tortious interference with contract.

Defendants are clearly in error on the first argument. The Second Circuit has held that federal antidiscrimination statutes, such as the ADEA, prohibit "discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct." Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir.1978); accord, Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir.1979), rev'd on other grounds, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980); Caruso v. Peat, Marwick, Mitchell & Co., 664 F.Supp. 144, 150 (S.D.N.Y. 1987).²

But the cases which stand for this proposition also demonstrate the limits of conduct cognizable as retaliation under the ADEA, and consistency with this line of cases requires that defendant's motion be granted as to plaintiff's fourth cause of action. The ADEA, 29 U.S.C. § 623(d), states:

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

The courts of appeals have uniformly determined that three elements comprise a prima facie case of retaliatory discrimination under this section:

In order to establish a claim for retaliation, the plaintiff must show: first, protected participation or opposition under Title VII known by the alleged retaliator; second, an employment action or actions disadvantaging persons engaged in protected activities; and third, a causal connection between the first two elements, that

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