Tewksbury v. Ottaway Newspapers

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-9667
• Citation: 192 F.3d 322
• Parties: (2nd Cir. 1999) LAURANCE A. TEWKSBURY, Plaintiff-Appellant, v. OTTAWAY NEWSPAPERS, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 322

192 F.3d 322 (2nd Cir. 1999)

LAURANCE A. TEWKSBURY, Plaintiff-Appellant, v. OTTAWAY NEWSPAPERS, Defendant-Appellee.

Docket No. 98-9667

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: July 13, 1999

Decided: September 22, 1999

Appeal from an order of the United States District Court for the Southern District of New York (Colleen McMahon, Judge) dismissing appellant's complaint because his charges of age and disability discrimination were time-barred. We reverse and hold that appellant complied with the sequential filing requirements of Section 706(e)(1) of the Civil Rights Act of 1964 because, upon filing his charges at the Equal Employment Opportunity Commission within 300 days of the alleged discriminatory acts, appellant's charges were also deemed filed with the New York State Division of Human Rights.

STEPHEN BERGSTEIN, Law Offices of Michael H. Sussman, Goshen, New York, for Plaintiff-Appellant.

CHRISTOPHER P. REYNOLDS, Morgan, Lewis & Bockius LLP (Robert J. Cicero, Betsy J. Floman, of counsel), New York, New York, for Defendant-Appellee.

Before: WINTER, Chief Judge, WALKER, and CABRANES, Circuit Judges.

WINTER, Chief Judge:

Laurance A. Tewksbury appeals from Judge McMahon's dismissal of his complaint. Judge McMahon held that appellant's discrimination claims against his former employer, Ottaway Newspapers ("Ottaway"), were time-barred under Section 706(e)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e)(1), because he filed his charges with the Equal Employment Opportunity Commission ("EEOC"), more than 180 days after the alleged discriminatory acts, without first having filed with a state agency. Appellant argues that the district court erred in applying a 180-day limitations period to his charges. He contends that his disability discrimination charge was subject to a 300-day limitations period because he must be deemed to have complied with the sequential filing requirement in Section 706(e)(1) when the EEOC, on his behalf, instituted proceedings with the New York State Division of Human Rights ("NYSDHR") pursuant to a work-sharing agreement. Appellant further argues that his charge of age discrimination was timely under the applicable limitations period. We agree with both contentions and reverse.

BACKGROUND

Tewksbury formerly worked as a salesperson for Tri-States Publishing Co., a division of Ottaway, in Port Jervis, New York. Ottaway terminated Tewksbury on January 5, 1996, for "performance problems." On either August 27 or 28, 1996 -- more than 180 days but less than 300 days after he was terminated -- Tewksbury submitted charges to the EEOC alleging that Ottaway discriminated against him on the basis of a disability and his age. The EEOC characterized Tewksbury's charges as arising under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Tewksbury never undertook to file these charges directly with the NYSDHR, the New York State agency empowered to remedy unlawful discrimination. However, pursuant to a "Work-Sharing Agreement," the EEOC later transmitted Tewksbury's charges to the NYSDHR.

Appellant received a right-to-sue letter from the EEOC on March 17, 1997. About one month later, he filed the instant complaint in the Southern District, claiming that Ottaway terminated him because of his age and an alleged disability in violation of the ADA, ADEA, and N.Y. Exec. Law §§ 296-297. Appellee moved to dismiss the ADA and ADEA claims as time-barred pursuant to Fed. R. Civ. P. 12(b)(6) and the pendent state-law claims pursuant to 28 U.S.C. § 1367(c)(3). Judge McMahon initially denied appellee's motion, but, after reconsideration, granted it. See Tewksbury v. Ottaway Newspapers, Inc., No. 97 Civ. 2904 (S.D.N.Y. Nov. 23, 1998); Tewksbury v. Ottaway Newspapers, Inc., No. 97 Civ. 2904 (S.D.N.Y. Dec. 14, 1998). This appeal followed.

DISCUSSION

We review the grant of summary judgment de novo.¹ See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Summary judgment is appropriate when, after reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998).

The material facts are not in dispute. The parties agree that Tewksbury filed his charges with the EEOC more than 180 days and less than 300 days after he was terminated and that Tewksbury did not file these charges directly with the NYSDHR. They also agree that the EEOC transmitted Tewksbury's charges to the NYSDHR and that, at all relevant times, the NYSDHR and the EEOC were parties to a "Work-Sharing Agreement." The dispute between the parties arises over the legal consequences of these facts.

a) ADA Charge

Tewksbury's ADA charge is subject to the time limitations set forth in Section 706(e)(1). See 42 U.S.C. § 12117(a) (providing that the procedures set forth in Section 706 apply to claims arising under the ADA). That Section requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act, unless the "person aggrieved has initially instituted proceedings with a State . . . agency with authority to grant or seek relief from such practice," in which case the claimant has 300 days to file his charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1). The NYSDHR has authority to remedy employment discrimination, rendering New York a so-called deferral state under Section 706(e)(1). See Harris v. City of New York, 186 F.3d 243, 247-48 n.2 No. 98-7614, (2d Cir. Aug. 3, 1999). Thus, Tewksbury's ADA claim, based upon incidents charged more than 180 days after their alleged occurrence, is barred unless he "initially" filed his corresponding charge with the NYSDHR. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) ("[Section 706(e)(1)] functions as a statute of limitations in that discriminatory incidents not timely charged before the EEOC will be time-barred upon the plaintiff's suit in district court.") (citations omitted).

Appellant argues that his ADA charge should be deemed to have been filed with the NYSDHR -- and was thus in compliance with the sequential filing requirement set forth above -- because he filed with the EEOC, which then filed his charge with the NYSDHR pursuant to the Work-Sharing Agreement. Appellee counters that the sequential filing requirement was not satisfied because Tewksbury did not himself "institute[] proceedings" with the NYSDHR, and, even if he did, he did not do so "initially," that is, before he filed with the EEOC. We agree with appellant.

When the EEOC files charges with a deferral-state agency on a claimant's behalf, the charges are deemed to be filed by the claimant. See, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 816 (1980) (holding that the EEOC instituted state proceedings on claimant's behalf by forwarding charge to deferral-state agency); Love v. Pullman Co., 404 U.S. 522, 525 (1972) ("Nothing in [Title VII] suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself . . . ."). Thus, Tewksbury "instituted proceedings" at the NYSDHR when the EEOC transmitted his ADA charge to that agency. 42 U.S.C. § 2000e-5(e)(1).

The unsettled question is whether Tewksbury is deemed to have filed "initially" with the NYSDHR. In Mohasco, a claimant submitted a charge to the EEOC 291 days after the alleged act of discrimination but did not submit the charge to the governing deferral-state agency -- the NYSDHR. The Supreme Court held, as a threshold matter, that the claimant's charge was "initially" filed with the NYSDHR, and thus was subject to the longer 300-day period, because the EEOC referred the charge to the NYSDHR, and, under Section 706(c), 42 U.S.C. § 2000e-5(c), the charge could not be regarded as formally filed with the EEOC until after the NYSDHR terminated its proceedings or sixty days had passed:

When respondent submitted his [employment discrimination charge] to the EEOC, he had not yet instituted any state proceedings. Under the literal terms of the statute, it could therefore be argued that he did not bring himself within the exception to the general 180-day requirement. But in Love v. Pullman Co., . . . we held that "[n]othing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself . . . ." Here, state proceedings were instituted by the EEOC when it immediately forwarded his letter to the state agency on June 15, 1976. Accordingly, we treat the state proceedings as having been instituted on that date. Since the EEOC could not proceed until either state proceedings had ended or 60 days had passed, the proceedings were "initially instituted with a State . . . agency" prior to their official institution with the EEOC.

Id. at 816-17 (citations omitted).

Mohasco does not precisely control this case because the EEOC could have proceeded on Tewksbury's ADA charge the day it received it. Under the Work-Sharing Agreement, the NYSDHR agreed to "waive[] its rights of exclusive jurisdiction to initially process . . . charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges . . . ." See Appellant's Br. at 13 (quoting 1996 Work-Sharing Agreement ¶ III(A)(1) and citing McGuirk v. Eastern Gen. Ins. Agency, 997 F. Supp. 395, 396-97 (W.D.N.Y. 1998)).² And, under current regulations, charges submitted to the EEOC are deemed filed with it on the date of receipt if the deferral-state agency has waived its rights to the 60-day exclusive jurisdiction period. See 29 C.F.R. § 1601.13(a)(4)(ii)(A); EEOC v. Commercial Office...