In a recent case, Starks v. Metropolitan Transp. Authority, No. 155317/2022, 2023 WL 8035649, 2023 N.Y. Slip Op. 34133(U) (N.Y. Sup Ct, New York County Nov. 17, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s race/gender discrimination complaint on the ground that it is barred under the “election of remedies” doctrine of the New York State Human Rights Law.
In sum, plaintiff contends that, due to her race and/or gender, she was not promoted. Initially, she filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission – a necessary first step to assert a Title VII claim in federal court – and thereafter filed a complaint with the New York State Division of Human Rights, which contained the same allegations as in her EEOC charge. The NYSDHR issued a “no probable cause” determination; the EEOC did likewise. Plaintiff filed a lawsuit in federal court; the federal court dismissed plaintiff’s federal claims, and declined to exercise supplemental jurisdiction over plaintiff’s state law claims. Plaintiff then filed her lawsuit in state court; defendant now moves to dismiss.
After summarizing the black-letter law, the court applied it to the facts:
In this motion, Defendant … argue[s] that Plaintiff’s case is barred by the election of remedies doctrine because Plaintiff dually filed her charge of discrimination with EEOC and NYSDHR when she signed below the section stating: “We want this charge filed with both the EEOC and the State or local Agency.”
Upon review, this Court finds that Plaintiff’s claim is not barred by the election of remedies doctrine. The documents submitted show that Plaintiff originally filed her discrimination claim directly and only with the EEOC. It was the EEOC that transferred Plaintiff’s charge to the NYSDHR for filing and further processing and investigation. Then, NYSDHR informed Plaintiff of the transfer. Further, the “annexed rider” that Plaintiff attached to the “Charge of Discrimination” form (charge form) originally filed with EEOC did not mention that Plaintiff wished to dually file her complaint with NYSHDR. The language in the charge form states, “we want this charge filed with both EEOC and the State or local Agency, if any,” which appears to be standard language included in the form. In addition, in the charge form, Plaintiff only checked EEOC as the agency with which she wished to file her discrimination claim.
Additionally, the portion of the charge form that allows the complainant to add and specify a “State or local Agency, if any” with which they would wish to dually file their charge of discrimination, in addition to the EEOC, was left blank by the Plaintiff (see e.g. Bawa v Brookhaven Natl. Lab., Associated Universities, Inc., 968 F Supp 865, 870 [ED NY 1997] Thus, it is more than apparent that Plaintiff did not elect to file her charge of with NYSDHR. Rather NYSDHR was involved only at EEOC’s request. This Court further finds that since Plaintiff did **7 not have a choice in the matter, it cannot be deemed that she made a meaningful election of remedies (see Bawa, 968 F Supp at 870).
In Bawa, the court was clear that “Section 297(9) cannot be read to allow the EEOC to make such an election for an individual merely by satisfying the EEOC’s filing prerequisites” (id.). The documents submitted show that once EEOC transferred Plaintiff’s complaint to NYSDHR for filing and processing, she received a letter from NYSDHR stating: “Your complaint, originally filed with the Equal Employment Opportunity Commission (EEOC), has been transferred to the New York State Division of Human Rights for complaint filing and further processing and investigation…[t]he Division cannot proceed with the investigation of the EEOC charge until it receives the signed and notarized Division complaint.” NYSDHR’s letter did not at any point state that such a transfer was made at Plaintiff’s request. Per the instruction of NYSHDR, Plaintiff then forwarded the complaint that she filed with the EEOC to NYSDHR and explicitly stated that she authorizes NYSDHR to accept her verified complaint on behalf of EEOC. Thus, the facts here fall within the exception of Executive Law § 297 [9] because the filing a complaint with EEOC “which is ultimately referred to the NYSDHR does not constitute an election of remedies” (Bovell v City of Mount Vernon, New York, 2023 WL 3559544, *4, 2023 US Dist LEXIS 87445,* 12 [SD NY, May 18, 2023, No. 23CV1621; Executive Law § 297 [9] [“A complaint filed by the equal employment opportunity commission to comply with the requirements of 42 USC 2000e-5(c). . .shall not constitute the filing of a complaint within the meaning of this subdivision”]).
Defendant also cites numerous cases for the proposition that New York courts have pointed toward the NYSDHR opening and investigating a claim as support that an individual intended for a claim to also be filed with NYSDHR. However, those cases are distinguishable because the complainants in those cases either explicitly indicated that they wish to dually file with NYSDHR, **8 there was no transfer of the charge from EEOC to NYSDHR, or the plaintiff did not show that the charge was referred to the NYSDHR from EEOC. Additionally, adopting Defendant’s proposition would make the referral exception under Executive Law § 297 [9] and Administrative Code § 8-502 meaningless in situations where complainants do not elect an administrative forum for filing their discrimination claims.
The court further held that plaintiff’s action for employment discrimination, asserted under the New York State and City Human Rights laws, was timely commenced – applying, specifically, the “continuing violation” doctrine.