In ANNA WURTZBURGER, Plaintiff, v. EVERETT KORET, JERRY FLORY, JAMY FLORY, and FLORY CORP., Defendants., 16-cv-7897, 2018 WL 2209507, at *4 (S.D.N.Y. May 14, 2018), the court dismissed plaintiff’s failure-to-hire age discrimination claim under the Age Discrimination in Employment Act (ADEA).
This case illustrates the importance of complying with that statute’s “administrative exhaustion” requirement.
Under the ADEA, a claimant may bring suit in federal court only if he or she has filed a complaint with the EEOC “within 300 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d); see also Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (“As a precondition to filing [an employment discrimination claim] in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC.”); Anderson v. Royal Realty Corp., No. 14-CV-6797, 2014 WL 6908971, at *2 (E.D.N.Y. Dec. 8, 2014) (same); Spruill v. N.Y.C. Health & Hosp., No. 06-CV-11362, 2007 WL 2456960, at *2 (S.D.N.Y. Aug. 23, 2007) (“A plaintiff must exhaust his administrative remedies with the EEOC or an authorized agency before filing . . . ADEA claims in federal court.”), aff’d 367 F. App’x 269 (2d Cir. 2010). “Exhaustion of administrative remedies through the EEOC is an essential element of the . . . ADEA statutory scheme[ ] and, as such, a precondition to bringing such claims in federal court.”
Here, plaintiff did not file any charge of discrimination with the EEOC.
That did not end the matter, however, since “the exhaustion of administrative remedies is a precondition to bringing [an employment discrimination claim] claim in federal court, rather than a jurisdictional requirement,” such that “a plaintiff’s failure to exhaust is subject to equitable defenses.”
The court held that plaintiff was not entitled to rely on equitable tolling, noting that plaintiff was represented by counsel at all relevant times, and “[lack] of diligence by a plaintiff’s attorney generally will not prompt a court to provide relief from a limitations period by way of an equitable toll.”
Thus, the court held that “[p]laintiff’s claim that this Action was unwittingly filed by counsel in the ‘wrong forum,’ … is no excuse” and that “[s]uch attorney errors do not warrant equitable tolling. “