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BOUKER v. CIGNA CORP.

March 14, 1994

EDMUND P. BOUKER
v.
CIGNA CORPORATION



The opinion of the court was delivered by: JOHN R. PADOVA, J.

 Padova, J.

 On January 4, 1994, plaintiff Edmund P. Bouker ("Bouker") filed a complaint averring the following facts. From 1961 until 1990, Equicor, an entity that provides and sells various types of insurance and related administrative services to various institutional clients, employed Bouker. In December of 1990, defendant CIGNA Corporation ("CIGNA") acquired Equicor, with the intention of partially continuing Equicor's business and employment relationships.

 Subsequently, by letter dated April 20, 1992, CIGNA informed Bouker that his position would be eliminated on June 15, 1992 because of the relocation of its National Accounts Department from New York to Connecticut. On June 15, 1992, CIGNA terminated Bouker, who was then 52 years old, and replaced him with a 33 year old employee who was not asked to take on the same case management responsibilities as Bouker.

 On January 20, 1993, Bouker filed a written charge of discrimination with the United States Equal Employment Opportunity Commission (the "EEOC"). On April 27, 1993, Bouker's attorney, on behalf of Bouker and pursuant to the requirements of ADEA, 29 U.S.C.A. § 633(b), filed a written charge of discrimination with the New York State Division of Human Rights (the "Division"). *fn1" More than 60 days have passed since the written charges were filed with the state and federal agencies, and these agencies have not made final determinations. Based upon these allegations, Bouker asserts claims of age discrimination in employment in violation of ADEA and the NYHRL. Pursuant to Federal Rule of Civil Procedure 12(b)(6), CIGNA moves to dismiss Bouker's NYHRL claim. In deciding a motion to dismiss under Rule 12(b)(6), I must treat the facts alleged in the complaint as true, construe the complaint in the light most favorable to plaintiff, and ask whether, under any reasonable reading of the complaint, plaintiff may be entitled to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1410 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991). This standard will guide my analysis of CIGNA's motion.

 Because Bouker's NYHRL claim is asserted in conjunction with a federal ADEA claim, it comes within this Court's supplemental jurisdiction. See 28 U.S.C.A. § 1367 (West 1993). *fn2" With respect to a supplemental state law claim, federal courts must apply state substantive law. See Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991)(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)), cert. denied, 112 S. Ct. 939 (1992). As the state claim in this case is asserted under a New York statute, I must apply New York law. See id.

 Under New York law, age discrimination in employment is an "unlawful discriminatory practice." N.Y. Exec. Law § 296(1)(a). *fn3" To redress a grievance for an "unlawful discriminatory practice," the New York statutes provide, in relevant part, that:

 
1. Any person claiming to be aggrieved by an unlawful discriminatory practice may, by himself or his attorney-at-law, make, sign and file with the division a verified complaint in writing [the administrative charge] . . . .
 
9. Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint [an administrative charge] hereunder with any local commission on human rights*fn4" ] . . . . A complaint filed by the equal employment opportunity commission to comply with the requirements of 42 U.S.C. § 2000e-5(c) and 42 U.S.C. § 12117(a) and 29 U.S.C. § 633(b) shall not constitute the filing of a complaint within the meaning of this subdivision . . . .

 N.Y. Exec. Law § 297(1),(9). *fn5"

 New York courts have strictly construed N.Y. Exec. Law § 297(9) and have consistently held that a person who is the object of unlawful discrimination may assert a NYHRL claim in either a judicial or administrative forum, but not in both fora. See Promisel, 943 F.2d at 257. New York courts have unanimously held that where the plaintiff himself files an administrative charge, he elects the administrative forum and is precluded from asserting his NYHRL claim in the judicial forum. See, e.g., Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986). However, where the EEOC automatically refers an administrative charge to the Division, a plaintiff has not elected the administrative forum. See N.Y. Exec. Law § 297(9). *fn6"

 CIGNA moves to dismiss Bouker's NYHRL claim, arguing that Bouker's attorney's filing of the administrative charge operates as an election of remedies under N.Y. Exec. Law § 297(9). Bouker responds by comparing his attorney with the EEOC. Bouker argues that because his attorney filed the administrative charge on his behalf, he himself has not elected a remedy. This case presents the novel issue of whether an attorney's filing of an administrative charge on behalf of the claimant operates as the claimant's election of the state administrative forum with respect to his NYHRL claim.


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