“Election of Remedies” Doctrine Bars NYC Human Rights Law Hostile Work Environment Claim

In Saudagar v. Walgreens Co. and Duane Reade Inc., 2019 WL 498349 (S.D.N.Y. Feb. 8, 2019), the court (inter alia) applied the “election of remedies” doctrine to dismiss plaintiff’s discrimination claim under the New York City Human Rights Law.

The court explained that under this doctrine, “a complainant who files a complaint with either the [New York State Division of Human Rights] or [the New York City Commission on Human Rights … cannot subsequently sue in court on the same claims.”

Notably, merely raising a new legal theory is insufficient to evade the bar:

Under the NYCHRL, “the remedies of administrative review through the [NYSDHR or the NYCCHR] or judicial review are mutually exclusive[.]” Williams v. City of N.Y., 916 F. Supp. 2d 517, 521 (S.D.N.Y. 2013) (citation omitted). Perhaps more importantly, “[t]he election of remedies bar is jurisdictional; a complaint that has previously been dismissed by the NYSDHR or NYCCHR must be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).” Marecheau v. Equal Employment Practices Comm’n, No. 13 Civ. 2440 (VEC), 2014 WL 5026142, at *4 (S.D.N.Y. Sept. 30, 2014).

The election of remedies doctrine imposes two kinds of jurisdictional bars: direct and derivative. See Smith, 2016 WL 3440553, at *2. The direct bar divests courts of subject matter jurisdiction “over any claims previously submitted to the NYSDHR” or NYCCHR (the direct bar). Id. And the derivative bar prevents courts from hearing “claims arising out of the same incident[s] on which [an NYSDHR or NYCCHR] complaint was based.” Id. (internal quotation mark omitted) (quoting Higgins, 836 F. Supp. 2d at 188). Because of this derivative bar, “[c]laims need not be identical in order to be barred by the state or city election of remedies provisions.” Rosario v. N.Y.C. Dep’t of Educ., No. 10 Civ. 6160 (DLC), 2011 WL 1465763, at *2 (S.D.N.Y. Apr. 15, 2011). To the contrary, if there is “a sufficient identity of issue[s] … between” the claims a plaintiff pursued before the NYSHRL or NYCCHR, and those he alleges in a federal complaint, then the election of remedies doctrine precludes courts from adjudicating those federal claims. Id. (quoting Spoon v. Am. Agriculturalist, Inc., 478 N.Y.S.2d 174, 175 (3d Dep’t 1984)).

The derivative bar is expansive: A plaintiff cannot escape the bar by raising a new legal theory, if that theory is premised on the same events underlying his NYSDHR or NYCCHR complaint.

Applying the law, the court held that plaintiff’s NYC Human Rights Law claim was foreclosed by the election of remedies doctrine, noting that “[b]ecause Plaintiff brought an [New York State Human Rights Law] claim that was investigated and dismissed with a determination of no probable cause, the election of remedies doctrine bars the NYCHRL claim to the extent it is based on the same incident.”