Opinion
No. 02-CV-4967 (FB)
November 5, 2002
Attorney for Plaintiff: SAMUEL SOMMER, pro se, from New Windsor, NY.
MEMORANDUM AND ORDER
Pro se plaintiff Samuel Sommer brings this action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112-12117. Plaintiffs request to proceed in forma pauperis is granted. As explained below, plaintiffs ADA claim is premature and venue appears to lie in a different judicial district.
1. Exhaustion
Before filing a civil action in federal court seeking relief under the ADA, a plaintiff must exhaust his administrative remedies by timely filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 12117 (a); 42 U.S.C. § 2000e-5; EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002). The EEOC has 180 days from the date the claim was filed to issue the right-to-sue letter. 42 U.S.C. § 2000e-5 (f); Waffle House, Inc., 534 U.S. at 291 (once a charge is filed . . . the EEOC is in command of the process. The EEOC has exclusive jurisdiction over the claim for 180 days. During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim.").
In contrast, there is no requirement under the ADEA that the EEOC issue a right-to-sue letter. 29 U.S.C. § 621; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 37 (1991) (In order for an aggrieved individual to bring suit under the ADEA, he or she must first file a charge with the EEOC and then wait at least 60 days.); Hodge v. New York College of Podiatric Med., 157 F.3d 164, 167 (2d Cir. 1998)("Whereas Title VII plaintiffs must receive a `right-to-sue' letter from the EEOC before filing suit in court, see id. § 2000e-5(f)(1), ADEA plaintiffs need only wait 60 days after filing the EEOC charge.").
Plaintiff filed an ADA claim with the EEOC on July 5, 2002 and initiated this action on September 5, 2002. His complaint states that he has not yet received the requisite right-to-sue letter from the EEOC. See Complaint, ¶ 12. His ADA claim, therefore, is premature and must be dismissed without prejudice. Provided that venue in this district is proper (see below), plaintiff may resubmit his ADA claim within 90 days of the EEOC's issuance of the right-to-sue letter. See 42 U.S.C. § 2000e-5 (f)(1). If the EEOC does not provide a right-to-sue letter within 180 days of the filing of the administrative claim, plaintiff may resubmit his ADA claim within 90 days after the EEOC finally issues the right-to-sue letter. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984); Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982).
2. Venue
Claims brought under the ADA are governed by the venue provision set forth in Title VII, 42 U.S.C. § 2000e-5 (f)(3):
[A]n action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.42 U.S.C. § 2000e-5 (f)(3) (emphasis added). Plaintiff alleges he was employed by defendant in Montvale, New Jersey and that defendant's principal place of business is located in Allerton, Pennsylvania. Complaint at ¶¶ 2-3. Therefore, New Jersey appears to be the state where the allegedly unlawful employment practices were committed and where plaintiffs employment records are likely to be kept. Venue for plaintiffs ADA claim appears to lie in the District of New Jersey.
Unlike the ADA, the ADEA has no independent venue provision. 29 U.S.C. § 626 (c)(1). The ADEA is thus governed by the general venue statute, 28 U.S.C. § 1391. Section 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
As with his ADA claims, plaintiffs ADEA allegations suggest that venue under § 1391(b) is proper in the District of New Jersey, not the Eastern District of New York. Plaintiff is directed, therefore, to show cause by Affirmation why this complaint should not be transferred to the District of New Jersey. The Court has attached an Affirmation form for Sommer to complete and file with the Clerk.
CONCLUSION
Sommer's ADA claim is dismissed without prejudice. He is directed to file an Affirmation within 30 days of this Order to show cause why his complaint should not be transferred to the United States District Court for the District of New Jersey pursuant to 42 U.S.C. § 2000e-5 (f)(3) and 28 U.S.C. § 1406 (a). No summons shall issue at this time. If plaintiff fails to comply, the complaint shall be transferred to the District of New Jersey. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
_____________________________________________________________________ PLAINTIFF'S AFFIRMATION 02-CV-4967 (FB)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------- SAMUEL SOMMER, Plaintiff,
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WOOD DINNING SERVICE, Defendant -------------------------------------------------- STATE OF ____________________ } COUNTY OF ___________________ } SS:
SAMUEL SOMMER makes the following affirmation under the penalties of perjury: I am the plaintiff in this action and I respectfully submit this affirmation in response to the Court's order dated _____________________. The instant complaint should not be transferred to the United States District Court for the District of New Jersey because __________________
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In view of the foregoing, it is respectfully submitted that the instant complaint should be permitted to proceed in the United States District Court for the Eastern District of New York.
DATED: ____________________________
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