Wong v Sunnex, Inc.
Annotate this CaseDecided on April 11, 2006
Supreme Court, New York County
Queenie Wong, Plaintiff,
against
Sunnex, Inc. and Conrad Lung, Defendants.
103847/05
Leland DeGrasse, J.
Defendants Sunnex, Inc. ( Sunnex") and Conrad Lung ( Lung") move for an order granting dismissal of the complaint with prejudice based on the grounds that this court lacks subject matter jurisdiction, the action is barred by collateral estoppel, and plaintiff fails to state a cause of action (CPLR 3211 [a] [2], [5] and [7]). In the alternative, defendants move for summary judgment dismissing the complaint (CPLR 3212).
FACTS
Plaintiff began employment at Sunnex as a Technical Designer in July 2000, at the age of forty-two, and remained employed by Sunnex until July 2002, when she was fired. In August 2002, plaintiff filed a complaint with the New York State Division of Human Rights ( NYSDHR") alleging that she was discharged by her former employer on account of her age and disabilities in violation of the New York State Human Rights Law, Executve Law § 296 et seq. ( NYSHRL"), the Age Discrimination in Employment Act of 1967, 29 USCA § 621 et seq. ( ADEA"), and the Americans with Disabilities Act of 1990, 42 USC § 12101 et seq. ( ADA"). By Determination and Order After Investigation," dated May 28, 2004, the NYSDHR dismissed the complaint for lack of probable cause. In November 2004, plaintiff commenced an action against Sunnex and Lung in the Supreme Court of the State of New York, County of New York, under Index Number 115563/04, asserting causes of action in violation of the NYSHRL; the New York City Human Rights Law, Administrative Code of the City of New York § 8-107 et seq. ( NYCHRL"); the Family and Medical Leave Act, 29 USC § 2611 et seq. ( FMLA"); Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq. ( Title VII"); and the ADA.
Defendants timely moved the complaint to the United States District Court for the Southern District of New York. On February 23, 2005, after a hearing on a motion to dismiss, Justice Jed S. Rakoff issued a decision from the bench dismissing plaintiff's Title VII, FMLA and ADA claims with prejudice. With the federal claims gone, the district court declined to exercise supplemental jurisdiction over plaintiff's state law claims and dismissed the entire complaint. Plaintiff now brings this action against her former employers alleging that defendants terminated her employment on account of her disability. The complaint alleges that in January [*2]2001, plaintiff was diagnosed with an ulcer and in May 2002, plaintiff was diagnosed with fibroids. The complaint further alleges that after informing Lung about her medical condition, Lung began to treat plaintiff differently and on July 9, 2002, plaintiff was fired from her position. Plaintiff asserts claims against defendants under Executive Law § 296 and the Administrative Code § 8-107.
DISCUSSION
In support of their motion to dismiss, defendants argue that this court is without jurisdiction to entertain plaintiff's state and city human rights claims because the present claims are based on the same facts as the claims that were litigated before the NYSDHR and dismissed for lack of probable cause.
Executive Law § 297 (9) provides, in relevant part, that: Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages unless such person had filed a complaint hereunder or with any local commission on human rights."
Similarly, Administrative Code § 8-502 (a) provides, in relevant part, that: Except as otherwise provided by law, any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages unless such person has filed a complaint with the city commission on human rights or with the state division of human rights."
Thus, by the terms of the above statute and code, once a complainant elects to pursue his or her discrimination claim administratively by filing a complaint with the NYSDHR, the complainant may not bring a subsequent judicial action based on the same alleged discriminatory practices. A complainant may elect to seek redress in either an administrative or judicial forum, but may not choose both, the remedies being mutually exclusive (see Matter of James v Coughlin, 124 AD2d 728 [1986]; Legg v Eastman Kodak Co., 248 AD2d 936 [1998]; Matter of Universal Packaging Corp. v New York State Div. of Human Rights, 270 AD2d 586 [2000]). An exception to the above election-of-remedies provisions arises where the complaint is filed with the EEOC and is then referred by the EEOC to the NYSDHR (see York v Assn. of the Bar of the City of New York, 286 F3d 122 [2002], cert denied 537 US 1089 [2002]; Hirsch v Morgan Stanley & Co., Inc., 239 AD2d 466 [1997]). The purpose of the exception is to preserve the complainant's right to sue in court when the EEOC automatically files a discrimination charge with the state agency because the grievant has no choice in the matter, and thus cannot be said to have exercised his or her right of election" (Scott v Carter-Wallace, Inc., 147 AD2d 33, 36 [1989], appeal dismissed 75 NY2d 764 [1989]).
In opposition, plaintiff asserts in her affidavit that in July 2002, she called the EEOC and was told that the EEOC would not take [her] case because it was a State case" and that she [*3]should file her claim with the NYSDHR. In further opposition, plaintiff's attorney, who was retained by plaintiff in November 2002, after she filed her complaint with the NYSDHR, argues that since plaintiff was instructed by the EEOC to file her NYSHRL and NYCHRL claims with the NYSDHR, she should not be precluded from litigating said claims in state court. In support of his argument, counsel cites Olsen v Citibank (1990 US Dist LEXIS 7271 [SD NY, April 3, 1990]); Bawa v Brookhaven National Laboratory (968 F Supp 865 [ED NY 1997]) and Williams v J. C. Penney Company, Inc. (1990 US Dist. LEXIS 14454 [SD NY, October 29,1990]), for the proposition that the grievant cannot be said to have elected to pursue his or her claim administratively when the EEOC refers a discrimination charge to the NYSDHR. Thus, counsel maintains that plaintiff's case falls within the election-of-remedies exception.
Counsel's reliance on the above cited cases is misplaced. In those cases, the plaintiffs filed a charge of discrimination with the EEOC who then transferred the plaintiffs' complaint to the NYSDHR. In the instant case, plaintiff, rather than the EEOC, filed her claims with the NYSDHR. Although plaintiff seeks to bring herself within the exception to the election-of-remedies bar, the exception applies only where the case is actually filed with the EEOC, which then files it by automatic referral with the NYSDHR (see York 286 F3d at 127; Hirsch, 239 AD2d at 467). Here, plaintiff, who filed her discrimination claim with the NYSDHR after she called and consulted the EEOC," freely elected to pursue an administrative route and cannot now claim that she is being subjected to the forced-election predicament that the exception is intended to remedy" (York 286 F3d at 127).
As to counsel's assertion that plaintiff was not informed of the implications of filing with the NYSDHR, [t]he statute does not provide that a grievant have advice of counsel, or a full appreciation of the finality of an election to proceed in the administrative forum. The policy of the statute is result oriented: since plaintiff has had the benefit of a full hearing and determination on the merits of [plaintiff's] claim [her] attempted recourse to the courts [is] thereby foreclosed" (Magini v Otnorp, Ltd., 180 AD2d 476, 477 [1992]).
Under the circumstances, plaintiff's election of an administrative remedy is a jurisdictional bar to commencing a lawsuit against defendants for violation of state and city human rights laws (Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240, 245 [1989], rearg denied 75 NY2d 240 [1989]; Hirsch 239 AD2d at 467; Brown v Wright, 226 AD2d 570 [1996]. The fact that Lung was not named as a party defendant in the administrative complaint does not change this result, because the present claims are based on the same facts as the claims raised in the administrative proceeding (see Bhagalia v State, 228 AD2d 882, 883 [1996]; Hirsch, 239 AD2d at 468; Brown, 226 AD2d at 571).
CONCLUSION
Based on the foregoing, defendants' motion to dismiss pursuant to CPLR 3211 (a) (2) is granted, and plaintiff's NYSHRL and NYCHRL claims are dismissed for lack of subject matter jurisdiction. The Clerk shall enter judgment dismissing the complaint.
This constitutes the decision and order of the court.
DATED: April 11, 2006
J.S.C.
[*4]
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