From D’Antonio v. Little Flower Children & Family Services of New York et al, 17-cv-1221, 2018 WL 1385897 (E.D.N.Y. March 19, 2018):
This Court is persuaded by Judge Lynch’s reasoning in Collette, and based on the facts presented in this case, holds that Plaintiff’s hostile work environment and retaliation claims under Title VII and Section 290 are not barred by Section 740’s election of remedies provision. In this action, Plaintiff claims that she was subjected to sexual harassment that created a hostile work environment and retaliated against for reporting the harassment. She also made complaints about safety conditions at the facility, which are alleged in greater detail in the complaint in the State Court Action. However, her complaint in the State Court Action makes no mention of sexual harassment. Additionally, federal and state anti-discrimination statutes were enacted to protect different interests than Section 740. See Barker, 885 F. Supp. 2d at 569 (“[T]he issue is whether Plaintiff’s disability discrimination claims protect against the same wrongs that Section 740 prohibits.”). Title VII and Section 290 seek to prevent discrimination on the basis of personal characteristics, while Section 740 is “aimed at protecting employees who report violations of law that present a danger to public health or safety.” Cabrera, 2013 WL 4525659, at *3 (internal quotations marks and citation omitted); see also Barker, 885 F. Supp. 2d at 569 (discussing purposes behind Section 290). Thus, Plaintiff’s claims in this action are not waived because they are based on “separate facts” and involve a “different legal interest”–to be protected from sexual harassment and retaliation in the workplace–than her Section 740 claim. Collette, 132 F. Supp. 2d at 274; see also Magnotti, 126 F. Supp. 3d at 315 (determining that discrimination claims were not waived since they sought to “vindicate rights completely separate from those sought to be protected by Section 740”) (internal quotations marks and citation omitted); Wooding, 2017 WL 2559942, at *8-9 (holding that claims under Title VII and Section 290 were not waived by instituting a Section 740 claim). Defendants’ generalizations about the rights at stake in both actions–that, for example, both actions seek to vindicate Plaintiff’s “right to be free from harassment or [supposed] danger”–are unconvincing. …
To be sure, the facts relevant to Plaintiff’s hostile work environment and retaliation claims and the Section 740 claim do overlap, and both complaints allege that she was constructively discharged from her position. However, a plaintiff may bring “legitimately independent claims not related to whistleblowing even if the claims have overlapping facts, such as the same underlying retaliatory action.