In Hernandez v. Edison Properties, 2013 NY Slip Op 33620(U) (N.Y. Sup. Ct. Index # 103762/12 March 31, 2013), the court dismissed a complaint under the “election of remedies” doctrine codified in the New York State Human Rights Law (NYSHRL), Executive Law 297(9).
In this case, plaintiff asserted a discrimination complaint in the New York State Division of Human Rights, which issued a determination of “no probable cause”. This, held the court, was sufficient to bar subsequent claims under statutes not asserted in the Division, namely, the New York City Human Rights Law (NYCHRL) and 42 USC 1981.
It reasoned:
[P]laintiff’s claims, whatever the nomenclature used in the complaint, arise from the same alleged discriminatory and retaliatory practices as asserted before NYSDHR and therefore plaintiff’s claims are barred by the election of remedies doctrine even if plaintiff now attempts to seek relief under the [NYCHRL] and 42 USC 1981. [P]laintiff’s [NYSHRL] claims previously asserted and the [NYCHRL] claims now raised arise from the same alleged discriminatory and retaliatory practices. Having elected to pursue redress for those grievances before the SHRL, plaintiff is now foreclosed from bringing either [NYCHRL] or [NYSHRL] claims before this court. …
It is well-established in the Second Circuit that NYSDHR findings of ‘no probable cause’ preclude a subsequent claim pursuant to Section 1981 based on the same facts unless the plaintiff can demonstrate that he did receive a full and fair opportunity to litigate the issues before the NYSDHR.
Since plaintiff did not “assert that he was denied the opportunity to present and argue his claims before the NYSDHR … such claims are now barred from adjudication in this forum.”