State/City Human Rights Law Religion and National Origin Hostile Work Environment Claims Dismissed Against Marriott; Retaliation and Title VII Hostile Work Environment Claims Continue

In Rasmy v. Marriott Int’l, Inc., No. 16-CV-04865 (AJN), 2017 WL 773604 (S.D.N.Y. Feb. 24, 2017), the court discussed and applied the doctrines of election of remedies, administrative exhaustion, and mandatory arbitration in the context of defendant’s motion to dismiss the hostile work environment (religion, national origin) and retaliation claims asserted by plaintiff.

Plaintiff, an Egyptian and practicing Christian, alleged (among other things) that he was subjected to a hostile work environment (in the form of, e.g., ethnic and religious slurs, such as “camel,” “mummy,” “fucking Egyptian,” “fucking Christian”) by his co-workers, and terminated by defendant after he complained about it and filed administrative charges of discrimination.

Initially, the court held that plaintiff’s hostile work environment claims were barred by the “election of remedies” provisions embodied in the New York State and City Human Rights Laws. Plaintiff’s hostile work environment claims arose from the “same discriminatory practices” as those alleged in his New York State Division of Human Rights (NYSDHR) complaint, and were thus barred. On the other hand, plaintiff’s retaliation claims were “not explicitly asserted in the [NYSDHR] Complaint and are fundamentally premised on at least one crucially distinct fact—the termination of his employment—that is not alleged expressly or by implication in the [NYSDHR] Complaint.” Therefore, those claims were not barred.

Next, the court held that plaintiff’s hostile work environment and retaliation claims were not subject to dismissal under the “administrative exhaustion” doctrine. Plaintiff’s Title VII hostile work environment claim was either identical to the claim disposed by the EEOC, or at least “reasonably related” to that claim. Plaintiff’s retaliation claim was likewise exhausted; for example, plaintiff’s court complaint “explicitly alleges that Marriott in fact later terminated Rasmy’s employment at least in part because of his harassment complaints, including but not limited to his complaints to the EEOC.”

Finally, the court rejected defendant’s argument that plaintiff’s claims were barred by the arbitration provision in the collective bargaining agreement between plaintiff’s union and defendant’s trade association. Notably, “the portions of the CBA to which Marriott directs the Court do not come close to constituting ‘clear and unmistakable’ waiver of Rasmy’s rights to pursue Title VII and state and city-law discrimination claims in federal court.”

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