Court Dismisses Sexual Harassment, Discrimination, Hostile Work Environment, and Retaliation Claims; Discusses Election of Remedies, Statute of Limitations, and Exhaustion of Remedies Principles

In Black v. Anheuser-Busch in Bev, No. 14 CIV. 2693 (RWS), 2016 WL 3866583 (S.D.N.Y. July 13, 2016), the court dismissed plaintiff’s sexual harassment, discrimination, retaliation, and hostile work environment claims.

Plaintiff filed a complaint with the NYC Commission on Human Rights (NYCCHR), which set forth claims for gender discrimination and sexual harassment. The NYCCHR issued a “no probable cause” finding. Although it determined that the complained-of incidents occurred, they “were not sexual in nature in the context of the workplace environment where horseplay regularly occurred.”

The court explained the New York City Human Rights Law’s (NYCHRL) “election of remedies” provision, codified at N.Y.C. Admin. Code § 8-502:

[The] New York City Human Rights Law provides: [A]ny person claiming to be aggrieved by an unlawful discriminatory practice … shall have a cause of action in any court of competent jurisdiction … unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice or act of discriminatory harassment or violence. [T]he election of remedies provision erects a jurisdictional bar to relitigation of claims that have been brought before the NYCCHR and found to be without probable cause. … Thus, by the terms of the statute and code, respectively, the [NYS and NYC Human Rights Law] claims, once brought before [a human rights agency], may not be brought again as a plenary action in another court. Whether the claims for relief in Plaintiff’s instant complaint can be read to arise under different statute than the NYCCHR claim does not save the claim from the election of remedies bar. A different pled form of relief arising out of the same incident forming the basis of the claims before the Agency is likewise barred by the election of remedies provision. Plaintiff cannot substantively litigate his claims before a competent state agency, then circumvent the concomitant jurisdictional bar by pleading the same events but checking a different box on the next effort.

While one incident was not litigated before the NYCCHR, that incident was time-barred by the NYC Human Rights Law’s three-year statute of limitations; the incident occurred in 2010 and plaintiff did not file his complaint until 2014. Also, since plaintiff “did not allege any claim in his NYCCHR complaint arising from [that] incident, the statute of limitations was not tolled” and “[a]ny federal [Title VII] claim Black may have had therefore lapsed 300 days after the … event occurred.”

The court dismissed plaintiff’s wrongful termination (retaliation/discrimination) claims under Title VII for failure to exhaust administrative remedies. “Courts may only hear claims that were raised in the underlying administrative charge.” Plaintiff was terminated after the NYCCHR adjudication, and did not thereafter file a wrongful termination or retaliation claim with the EEOC. It could not be said that plaintiff’s retaliation claim was “reasonably related” to the claims actually asserted, because the underlying administrative claim made no reference to retaliatory conduct.

It also dismissed plaintiff’s discrimination-related wrongful termination claim:

With respect to any wrongful termination claim stemming from discrimination that may be deemed reasonably related to what Plaintiff did bring before the EEOC, Plaintiff has failed to plead any facts giving rise to an inference of discrimination sufficient to support a plausible claim of termination on this basis. In New York and under Title VII, “[t]o establish a prima facie case of intentional discrimination, a plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse action took place under circumstances giving rise to an inference of discrimination.” Wright v. City of Syracuse, 611 Fed.Appx. 8, 11 (2d Cir. 2015). Plaintiff pleads no adverse action or any facts suggesting adverse action except his termination. However, even if the incidents in question constitute harassment, Plaintiff pursued a reporting and accountability process, subsequently having productive discussions with management about the events. Even if he was dissatisfied with the ultimate response, there are no facts to raise an inference that the termination was on the basis of his membership in a protected class.

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