Rodriguez v. Connection Tech. Inc., CV 98-7631-ADS.

• Decision Date: 09 September 1999
• Docket Number: No. CV 98-7631-ADS.,CV 98-7631-ADS.
• Citation: 65 F.Supp.2d 107
• Parties: Maria Z. RODRIGUEZ, Plaintiff, v. CONNECTION TECHNOLOGY INC., and John Cardona, Defendants.
• Court: U.S. District Court — Eastern District of New York

65 F.Supp.2d 107

Maria Z. RODRIGUEZ, Plaintiff, v. CONNECTION TECHNOLOGY INC., and John Cardona, Defendants.

No. CV 98-7631-ADS.

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

September 9, 1999.

Vladimir & Associates, North Babylon, NY, Peter L. Vladimir, of counsel, for the plaintiff.

Lawrence M. Monat, Hauppauge, NY, for the defendant Connection Technology, Inc.

John Cardona, Brentwood, NY, defendant pro se.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This decision examines an unresolved issue in this Circuit. Indeed, the resolution of the motion presently before the Court involves an issue in which there exists a split in Circuit authority; a divergence in opinion within the Southern, Northern and Western Districts of New York; and one that has apparently not been addressed by the Eastern District. Namely, whether the early issuance by the Equal Employment Opportunity Commission ("EEOC" or the "Commissioner") of a "right-to-sue letter," pursuant to 29 C.F.R. § 1601.28(a)(2) is permissible in view of the 180-day waiting period established by 42 U.S.C. § 2000e-5(f)(1).

The plaintiff Maria Z. Rodriguez, (the "plaintiff" or "Rodriguez"), commenced this action against her employer, Connection Technology, Inc., ("Connection Technology" or the "defendant") and her direct supervisor at Connection Technology, John Cardona ("Cardona") (collectively, the "defendants"), alleging sexual harassment and discrimination on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. ("Title VII"), and the New York State Human Rights Law, N.Y.Exec.Law § 290, et seq. (the "NYHRL").

Presently before the Court is the motion by the defendant Connection Technology, with which the defendant pro se Cardona joins, seeking dismissal of the plaintiff's complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

The defendants assert that: (1) the complaint should be dismissed due to the undisputed fact that the EEOC issued the plaintiff a right-to-sue letter prior to the expiration of the 180-day period set-forth in Title VII; (2) Cardona cannot be personally liable under Title VII; and (3) if the federal claims are dismissed, the Court should refuse to exercise supplemental jurisdiction over the remaining state law cause of action.

I. BACKGROUND

Unless otherwise stated, the following facts are from the plaintiff's complaint, filed on December 10, 1998. Connection Technology is a company engaged in the electronics manufacturing business. Cardona is a supervisor at Connection Technology. From March 26, 1995 to September 18, 1998, the plaintiff was employed by Connection Technology as a photo printer.

The plaintiff alleges that immediately after she began working at Connection Technology, her supervisor, John Cardona, began to sexually harass her. The plaintiff claims that despite her repeated refusals, Cardona continued to demand that she go out with him. In addition, the plaintiff alleges that Cardona made sexual comments directed at her, and, on several occasions, grabbed and caressed her in a sexual manner. While the plaintiff contends that she told Cardona on numerous occasions that his conduct was unwelcome, Cardona's conduct did not change.

On August 13, 1998, the plaintiff alleges that she complained about Cardona's behavior to "Mr. Hiss," Connection Technology's Vice-President. The plaintiff claims that although Mr. Hiss told her that he would look into her complaints and would take care of the situation, no action was taken by Connection Technology to stop the harassment.

On September 18, 1998 Connection Technology terminated the plaintiff's employment. The plaintiff was informed that she was terminated due to "Slow Business, [and to] cut down costs." The plaintiff argues that this explanation was a pretext and highlights the fact that Connection Technology did not terminate any other employees during this time; that other employees were working overtime; and that new employees were hired during the same period. The plaintiff concludes that she was discriminated against by Connection Technology in retaliation for her complaint about Cardona's sexual harassment.

On October 14, 1998, the plaintiff filed a charge of discrimination with the EEOC against Connection Technology and Cardona. On November 23, 1998, the EEOC District Director, Spencer H. Lewis, determined that "Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of the charge." As a result, the EEOC terminated the processing of the plaintiff's charge, and upon the plaintiff's request, issued a Notice of Right To Sue. On November 30, 1998, the plaintiff received notice of her Right To Sue the defendant in federal court.

II. DISCUSSION

The Court notes at the outset that the plaintiff has consented to the withdrawal of her Title VII claim against Cardona. As such, the only issue for the Court's resolution centers on whether the Court presently has jurisdiction over the plaintiff's claims despite the fact that the EEOC issued an early right-to-sue letter.

42 U.S.C. § 2000e-5(f)(1) states, in pertinent part, that:

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 ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after giving such notice a civil action may be brought against the respondent named in the charge....

In 1977, the EEOC promulgated a regulation that purported to authorize the Commissioner to issue an early right-to-sue notice. In particular, 29 C.F.R. § 1601.28(a)(2) provides that the Commission may, upon a complainant's request, authorize a private suit:

at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided that [an appropriate Commission official] has determined that 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.

Id.

As previously stated, the plaintiff filed her EEOC complaint on October 14, 1998. On November 23, 1998, pursuant to 29 C.F.R. § 1601.28(a)(2) and only 39 days after the filing of the complaint, an early right-to-sue notice was issued at the plaintiff's request. The early right-to-sue notice claimed that "it [was] unlikely that the EEOC [would] be able to complete its administrative processing within 180 days from the filing of [the plaintiff's] charge."

Courts are divided as to whether, under 29 C.F.R. § 1601.28(a)(2), the EEOC's early issuance of a right-to-sue letter, presents an impediment to proceeding with a Title VII claim in federal court. The Eleventh and Ninth Circuits in Sims v. MacMillan, 22 F.3d 1059 (11th Cir.1994) and Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251 (9th Cir.1980) held that when the EEOC issues a right-to-sue letter at a claimant's request and prior to the expiration of 180 days from the filing of the complaint with the Commission, the premature issuance by the EEOC does not preclude the complainant from filing suit in the appropriate federal court. Other district courts have joined the Eleventh and Ninth Circuits. See Palumbo v. Lufthansa German Airlines, 98 CV 5005, 1999 WL 540446 (S.D.N.Y. July 26, 1999); Rosario v. Copacabana Night Club, Inc., 97 CV 2052, 1998 WL 273110 (S.D.N.Y. May 28, 1998); Figueira v. Black Entertainment Television, 944 F.Supp. 299 (S.D.N.Y.1996); Parker v. Noble Roman's, Inc., IP-96-65-C-D/F, 1996 WL 453572 (S.D.Ind. June 26, 1996); Martinez v. Labelmaster, 96 C 4189, 1996 WL 580893 (N.D.Ill. Oct.4, 1996); Defranks v. Court of Common Pleas, 95-327, 1995 WL 606800 (W.D.Pa. Aug.17, 1995); Rolark v. University of Chicago Hosps., 688 F.Supp. 401 (N.D.Ill.1988); Cattell v. Bob Frensley Ford, Inc., 505 F.Supp. 617 (M.D.Tenn. 1980); Vera v. Bethlehem Steel Corp., 448 F.Supp. 610 (M.D.Pa.1978); Howard v. Mercantile Commerce Trust Co., 74-417C(1), 1974 WL 302 (E.D.Mo. Nov.27, 1974).

The decision in the Eleventh Circuit in Sims, supra, is typical of the rationale underlying the permissibility of the EEOC's premature issuance of a right-to-sue letter:

the purpose of the 180-day period is to protect the aggrieved party from extended administrative proceedings or bureaucratic backlog; and ... where the EEOC determines, due to its huge backlog, that it cannot investigate an aggrieved party's charge within the 180-day period and notifies the aggrieved party that it is terminating its investigative efforts, it is pointless for the aggrieved party to stand by and mark time until the 180-day period expires.

Sims, 22 F.3d at 1061.

In contrast, the United States Court of Appeals for the District of Columbia Circuit in Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336 (D.C.Cir.1999) recently concluded that the "EEOC's power to authorize suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress's unambiguous policy of encouraging informal resolution of charges up to the 180th day." Id. at 1347. Many district courts have similarly concluded that the 180 day waiting period is a prerequisite to filing a claim in federal court. See Stetz v. Reeher Enters., Inc., ___ F.Supp.2d ___, 99 CV 223, 1999 WL 636598 (N.D.N.Y.1999); Olszewski v. Bloomberg L.P., 96 CV 3393, 1997 WL 375690 (S.D.N.Y. July 7, 1997); Pearce v. Barry Sable Diamonds, 912 F.Supp. 149 (E.D.Pa.1996); Montoya v. Valencia County, 872 F.Supp. 904 (D.N.M. 1994); Henschke v. New York Hospital-Cornell Medical Ctr., 821 F.Supp. 166 (S.D.N.Y.1993); Wilk v....