I have a legal question. If a pro se litigant files an incomplete discrimination complaint because they were trying to meet the EEOC 90 day “right to sue” deadline, and explains to the judge that they would like an extension to amend the complaint in the future because presently they are dealing with health challenges, and the Federal Court dismisses the case for incompleteness, can the now completed complaint be filed in the State Supreme Court?
If so, what role does the EEOC’s 90 day “right to sue” letter play in state court, if it plays a role at all?
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Roberto (Brooklyn, NY:
You can certainly file your claim in state court. The problem you will likely run into is the EEOC’s filing a “Notice of Removal.” Removal jurisdiction refers to the right of the EEOC to remove a lawsuit filed against them in state court to the federal district court for the federal judicial district in which the state court sits.
Jurisdictional Removal is governed by federal statute, 28 U.S.C. § 1441 et seq. A case must be removed to the federal district court that encompasses the state court where the action was initiated. In your case, that would be the Southern District of New York.
The EEOC has a right to agree to be sued in New York’s State Supreme Court. In the very unlikely chance the EEOC will agree to be sued in New York’s State Supreme Court, they will assuredly use your failure to timely file your claim.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.
Best of luck,
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