In Klaper v. Cypress Hills Cemetery, No. 2016-12547, 9951/15, 2020 N.Y. Slip Op. 03505, 2020 WL 3443488 (N.Y.A.D. 2 Dept. June 24, 2020), the court, inter alia, discussed and applied the NYC Human Rights Law’s “election of remedies” doctrine.
Plaintiff alleged that, during his employment, his supervisors and coworkers referred to him by derogatory names which purportedly mocked his age and national origin, and that, as a result of the harassment, he became depressed and started drinking alcohol.
From the decision:
Administrative Code § 8–502(a) states that a person claiming to be aggrieved by an unlawful discriminatory practice pursuant to the New York City Human Rights Law may commence a civil action for damages “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.” “ ‘Pursuant to the election of remedies doctrine, the filing of a complaint with [the Division] precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts’ ” (Luckie v. Northern Adult Day Health Care Ctr., 161 A.D.3d 845, 846, 73 N.Y.S.3d 454, quoting Vetro v. Hampton Bays Union Free Sch. Dist., 148 A.D.3d 963, 964, 50 N.Y.S.3d 102; see Emil v. Dewey, 49 N.Y.2d 968, 969, 428 N.Y.S.2d 887, 406 N.E.2d 744; Rodriguez v. Dickard Widder Indus., 150 A.D.3d 1169, 1171, 56 N.Y.S.3d 328). Here, the plaintiff’s causes of action are based on the same alleged discriminatory conduct asserted in the NYSDHR complaint, which were ultimately dismissed on the merits (see Craig–Oriol v. Mount Sinai Hosp., 201 A.D.2d 449, 449–450, 607 N.Y.S.2d 391). Therefore, the plaintiff is barred from asserting those claims under the New York City Human Rights Law in this action (see Luckie v. Northern Adult Day Health Care Ctr., 161 A.D.3d at 846, 73 N.Y.S.3d 454; Rodriguez v. Dickard Widder Indus., 150 A.D.3d at 1171, 56 N.Y.S.3d 328; Vetro v. Hampton Bays Union Free Sch. Dist., 148 A.D.3d at 964, 50 N.Y.S.3d 102). The fact that the plaintiff proceeded pro se in filing the NYSDHR complaint or had other difficulties, such as a language barrier, does not preclude the application of the doctrine of the election of remedies (see Magini v. Otnorp, Ltd., 180 A.D.2d 476, 477, 579 N.Y.S.2d 669). Although the plaintiff is currently alleging violations of the New York City Human Rights Law as opposed to violations of the New York State Humans Rights Law, the election of remedies doctrine still applies to foreclose the plaintiff from proceeding with the instant action.
The claims for hostile work environment and wrongful termination were part of a “continuing process”, and therefore it was not dispositive that the instant complaint contained additional facts that did not appear in plaintiff’s administrative filing.