Bailey v. Intego Insurance Services LLC

Filing 23

ORDER granting 19 Motion for Judgment on the Pleadings and dismissing complaint with prejudice; finding as moot 22 Motion. Signed by Hon. Michael A. Telesca on January 27, 2012. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
KATHLEEN M. BAILEY,
Plaintiff,

11-CV-6138
DECISION
and ORDER

v.
INTEGO INSURANCE SERVICES, LLC,
Defendants.
________________________________________
Plaintiff,

Kathleen

M. Bailey

(“Plaintiff”),

brings

this

action, pro se, pursuant to the Age Discrimination in Employment
Act (“ADEA”) of 1967, 29 U.S.C. §§ 621 et seq., alleging that the
Defendant, Intego Insurance Services, LLC (“Intego”), unlawfully
terminated her employment based on her age. (Docket No. 1.)
Plaintiff alleges that she was terminated on April 2, 2009 and this
was the last date any discriminatory action was taken against her.
Plaintiff

filed

a

charge

of

discrimination

with

the

Equal

Employment Opportunity Commission (“EEOC”) on January 24, 2011.
The EEOC dismissed Plaintiff’s charge as untimely, and sent her a
dismissal and notice of right to sue on February 8, 2011.
Plaintiff then filed the instant action on March 18, 2011.
Defendant now moves to dismiss Plaintiff’s complaint for
failing to file a charge of discrimination with the EEOC within the
statutory deadline - 300 days. (Docket No. 19.) Plaintiff has not
responded to the instant motion, but instead she filed a “motion
for a one month postponement” of oral argument on the motion to
dismiss.

Local Rule 7(c) states that the Court, in its discretion, may
decline to hear oral argument on any motion.

Accordingly, in its

notice to the parties scheduling the instant motion, the Court
stated that the motion would be submitted without oral argument and
no court appearance were required. Accordingly, Plaintiff’s motion
to extend the time for oral argument is denied as moot.
To pursue a claim for discrimination under the ADEA in New
York a plaintiff must first file a charge of discrimination with
the EEOC within 300 days of the alleged unlawful action. See Hodge
v. New York College of Podiatric Medicine, 157 F.3d 164, 166 (2d
Cir. 1998). This requirement functions as a statute of limitations
which will bar any suit in district court based on allegations
which are not timely raised before the EEOC. See Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Heller v.
Consolidated Rail Corp., 331 Fed. Appx. 766, 768, 2009 WL 1448977
(2d Cir. 2009).
Here, Plaintiff filed her charge with the EEOC nearly one year
after the 300 day deadline expired. Accordingly, because Plaintiff
failed to timely exhaust her administrative remedies with the EEOC,
Plaintiff’s complaint is hereby dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 27, 2012