The opinion of the court was delivered by: GETTLEMAN
Plaintiff, Marilyn Siciliano, has filed a three count complaint against her former employer, American National Can Company (the "Company"), and her union, Graphic Communications International Union (the "Union"), alleging violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5 ("Title VII"), the Americans with Disability Act, 42 U.S.C. § 12101(a) ("ADA"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"). Count I alleges that plaintiff was discriminated against because of her gender in violation of Title VII. Count II alleges that plaintiff was discriminated against because of her diabetes mellitus in violation of ADA. Count III alleges that plaintiff was terminated because of her age in violation of the ADEA. The Union has moved to dismiss all three counts; the Company has moved to dismiss Count III. Both motions, brought pursuant to Fed.R.Civ.P. 12(b)(6), allege that plaintiff has failed to exhaust her administrative remedies prior to filing suit in federal court. In addition, both respondents have moved to strike plaintiff's jury demand. For the reasons set forth below, the court grants the motions to dismiss in part and denies them in part, and denies the motion to strike the jury demand without prejudice.
The Company hired plaintiff as a film color separator in February of 1988. Plaintiff remained employed by the Company until her termination on August 31, 1994. Plaintiff was a member of the Union throughout her employment with the Company.
In addition to verbal harassment, plaintiff alleges that on January 13, 1993, Jim Young, the Company's General Manager, verified plaintiff's previously known diabetes with her physician. Thereafter, Mr. Young proceeded to test plaintiff's blood sugar level with an unsterile instrument. Subsequent to reporting this incident to the Union and the Company, both failed to investigate or take action. Moreover, the Company's superintendent told plaintiff that he believed her emotional problems were directly caused by her diabetes. Thereafter, plaintiff's physician assured the Union and the Company that her diabetes would not interfere with her employment.
On April 26, 1994, plaintiff filed charges with the EEOC against the Company alleging sex and disability discrimination. After an investigation by the EEOC, plaintiff received a right to sue notice against the Company on May 5, 1994.
Plaintiff also filed charges with the EEOC against the Union on August 11, 1994. In the charges against the Union, plaintiff checked the box asserting sex discrimination, and specifically stated that:
I began employment with the employer in February 1988. I am a member of the Graphic Communications International Union. Ongoing since October 15, 1993, I have made numerous complaints regarding various issues with the union. In May 1994, I filed two grievances against the employer with my local union. The union officials have not given my complaints and grievances the same attention and action as those filed by male employees. I have not been given a reason why the issue I raised have been ignored. I believe that I was discriminated against because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that the union has represented males in union matters better than they represent females.
The EEOC thereafter issued plaintiff a notice of right to sue the Union on September 13, 1995.
On August 31, 1994, four months after plaintiff filed charges against it with the EEOC, the Company terminated plaintiff. She was fifty-nine and a half years old at the time of her termination. She would have been eligible for retirement in December 1994. Plaintiff was replaced by an employee under the age of forty with no disability.
After her termination, plaintiff made the first of two amendments to the EEOC charges against the Company. In the first amendment dated September 13, 1994, plaintiff stated that,
I was accused of being insubordinate because I reported George Palitine for violation of Respondent's rules and would not accept Glen Stam as proper representation from the Union. Palitine was reprimanded while I was suspended and later discharged. Stam has been making it impossible for me to accomplish my daily work tasks in that he harasses me all the time by talking, tapping his pencil on the desk, and putting things ...