PAUL G. GARDEPHE, District Judge.
Pro se plaintiff Dwight Andre Williams brings this action pursuant to Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, Executive Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. ("NYCHRL"). Williams alleges that the City of New York (the "City") and the Department of Parks and Recreation (the "Parks Department") discriminated against him on the basis of his sex, marital status, and criminal record.
Defendants have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that; (1) the Complaint fails to state a claim under Title VII; (2) Williams's Title VII claims are time-barred; and (3) Williams's state and city law claims are barred by the election of remedies provisions of the NYSHRL and NYCHRL. (Dkt. No. 14) Williams has submitted an affirmation in opposition. (Dkt. No. 13) For the reasons set forth below, Defendants' motion will be GRANTED.
Williams alleges that Defendants discriminated against him on the basis of his sex, marital status, and criminal record, and subjected him to unequal terms and conditions of employment. (Cmplt. at 3, 17
On August 4, 2008, Levy assigned Williams a maintenance position rather than a clerical position. (Id. at 7, 16-17) Williams was told that there were no clerical positions available at that time. (Id. at 7, 18) Williams also was told that he was denied a clerical position because he lacked clerical experience, even though he had advised the coordinator of the POP program that he had answered telephone calls and performed filing and computer work at a previous job, and that he had obtained a certificate in word processing and secretarial skills in 1999. (Id. at 18-19) Williams' resume, which is attached to the Complaint, indicates that he was self-employed as a licensed vendor of merchandise between December 1991 and February 2008, worked as a handyman between January 1990 and December 1991, and was employed as a security guard from April to December 1989. (Id. at 13)
Williams alleges that he was denied a clerical position because of his sex, marital status, and criminal record. (Id. at 17-19) In support of this allegation, Williams claims that a female JTP applicant without clerical experience was assigned to a clerical position and that another female JTP applicant was assigned a clerical position after Williams had been told that no such positions were available. (Id. at 18-19) Williams further claims that a male JTP worker who owed child support received an additional year on his contract, while Williams did not. (Id.) In addition, Williams alleges that he was told by Parks Department personnel that he was denied the clerical position because of his criminal record, which includes thirteen misdemeanor offenses. (Id. at 17)
On July 13, 2009, Williams filed a complaint with the New York State Division of Human Rights ("NYSDHR") alleging that Defendants violated the NYSHRL by discriminating against him on the basis of his sex, marital status, and criminal record. (See Cmplt. at 20-22) Defendants filed an answer denying Williams' allegations. (Id. at 5-8) Williams submitted a "rebuttal" to Defendants' answer on October 2, 2009. (Id. at 16-19) On August 23, 2011, the NYSDHR dismissed Williams' complaint, finding that there was no probable cause to believe that Defendants had discriminated against Williams. (Id. at 20-22) On October 5, 2011, the Equal Employment Opportunity Commission ("EEOC") adopted the findings of the NYSDHR and issued Williams a "right to sue" letter. (Cmplt. at 4)
Williams filed his complaint in this action on January 4, 2012. (Dkt. No. 2)
Defendants argue that Williams' NYSHRL and NYCHRL claims are barred by the election of remedies provisions of those statutes. (Def. Br. 17-19) "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). "A plaintiff
"Generally, the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive.... `[O]nce a complainant elects the administrative forum by filing a complaint with the Division of Human Rights, a subsequent judicial action on the same complaint is generally barred.'" Moodie v. Fed. Reserve Bank of New York, 58 F.3d 879, 882-83 (2d Cir. 1995) (quoting Marine Midland Bank v. New York State Div. of Human Rights, 75 N.Y.2d 240, 245, 552 N.Y.S.2d 65, 551 N.E.2d 558 (1st Dep't 1989)) (emphasis in Moodie).
The NYSHRL and the NYCHRL provide that an individual who files a complaint with either the NYSDHR or the New York City Commission on Human Rights (the "Commission") waives his right to sue in court. Section 297(9) of the NYSHRL provides in relevant part:
N.Y. Exec. Law § 297(9),
Similarly, Section 8-502(a) of the NYCHRL provides in pertinent part:
N.Y.C. Admin. Code § 8-502(a).
"Thus, both the NYSHRL and the NYCHRL require dismissal of a suit in court if the complainant lodges a complaint with either the SDHR or the Commission. This bar applies in federal as well as state court." Higgins v. NYP Holdings, Inc., 836 F.Supp.2d 182, 187 (S.D.N.Y.2011) (emphasis in original) (citing York v. Ass'n of the Bar of the City of New York, 286 F.3d 122, 127 (2d Cir.2002)). "The election of remedies bar is jurisdictional, such that claims dismissed pursuant to it must be dismissed under Fed.R.Civ.P. 12(b)(1) rather than 12(b)(6)." Id. (citing Moodie, 58 F.3d at 882). "The election of remedies bar also precludes consideration of any claim—whether brought under the NYSHRL or the NYCHRL—arising out of the same incident on which [plaintiff's] SDHR complaint was based." Id. at 188. Accordingly, Williams's claims are barred "if they are based on the same operative events he presented to the SDHR." Id. at 189 (citing Jackson v. New York State Dep't of Labor, 709 F.Supp.2d 218, 224-25 (S.D.N.Y.2010)).
Here, the allegations in Williams's Complaint and the allegations he asserted before the NYSDHR are based on the same operative facts and arise from the same
Although neither side has submitted Williams' NYSDHR complaint to the Court, the NYSDHR's dismissal order makes clear that Williams made the same allegations in that proceeding that he makes in the instant complaint. Before the NYSDHR, he alleged that Defendants had discriminated against him based on his sex, marital status, and criminal record, and that he was denied a clerical position and was instead assigned a maintenance position because of his sex and criminal record. (Cmplt. at 17-20) He also alleged that he has "a certificate proving competence with computers and clerical experience," and that two female JTP workers, who are less qualified than him, were assigned clerical positions. (Id. at 21) In addition, Williams claimed that he was discriminated against because of his marital status, because "people who owed child support received an additional year on their contracts," while Williams did not. (Id.) Williams further claimed that Parks Department personnel told him that he was denied the clerical position because of his criminal record. (Id. at 17)
Williams makes these same claims in the instant complaint. Even if his claims were not precisely the same, "[cjlaims need not be identical in order to be barred by the state or city election of remedies provisions.... A `[c]laimant cannot avoid the jurisdictional bar by merely adding additional elements of damage arising out of the same underlying conduct [or] by changing his legal theory.'" Rosario v. New York City Dep't of Educ., No. 10 Civ. 6160(DLC), 2011 WL 1465763, at *2 (S.D.N.Y. Apr. 15, 2011) (citing and quoting Bhagalia v. State, 228 A.D.2d 882, 644 N.Y.S.2d 398, 399 (3d Dep't 1996)); see also Saunders v. New York City Dep't of Educ., No. 07 CV 2725(SJF)(LB), 2010 WL 2816321, at *8 (E.D.N.Y. July 15, 2010) ("Moreover, the doctrine [of election of remedies] `is not limited to the precise claims brought in the administrative proceeding, but extends to all claims arising out of the same events.'") (quoting Wiercinski v. Mangia 57, Inc., No. 09-CV-4413(ILG), 2010 WL 2681168, at *2 (E.D.N.Y. July 2, 2010)).
Here, Williams elected his remedy by filing a complaint with the NYSDHR, which rejected his claims. (Cmplt. at 20-22) Accordingly, Williams's NYSHRL and NYCHRL claims must be dismissed unless an exception to the election of remedies doctrine applies.
Courts recognize two exceptions to the election of remedies doctrine. "First, where a complaint filed with the administrative agency is dismissed for administrative convenience rather than on the merits, a plaintiff is not barred from filing a lawsuit in federal court." Henriquez v. Starwood Hotels Resorts Worldwide, Inc., No. 08 Civ. 7666(RO), 2011 WL 4526143, at *3 (S.D.N.Y. Sept. 29, 2011) (citing Skalafuris v. City Univ. of New York, No. 09 Civ. 5693(SAS), 2010 WL 1050299, at *2 (S.D.N.Y. Mar. 22, 2010)). This exception is not applicable, because Williams' NYSDHR complaint was dismissed on the merits. (Cmplt. at 20-22)
"The second exception to the election of remedies doctrine applies when a claim is filed directly with the EEOC rather than with the SDHR, and is only thereafter filed with the SDHR by the EEOC in accordance with Title VII requirements that all complaints filed with the EEOC be referred to the local agency." Id. at *3 (citing Alston v. Microsoft Corp., No. 08 Civ. 3547(DC), 2009 WL 1116360, at *4 (S.D.N.Y. Apr. 27, 2009)). This exception is likewise inapplicable, because Williams
Defendants argue that Williams' Title VII claims are time-barred, because "the placement decision by the Parks Department ... occurred over 300 days from the date that the NYSDHR complaint was filed." (Def. Br. 16-17) A charge of discrimination under Title VII must be filed with the agency charged with investigating such matters within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(l). "The filing deadlines for a charge of discrimination act as a `statute of limitations' and a failure to timely file a charge acts as a bar to a plaintiffs action." Kubicek v. Westchester Cnty., No. 08-CV-372(KMK), 2009 WL 3720155, at *4 (S.D.N.Y. Oct. 8, 2009) (quoting Hill v. Citibank Corp., 312 F.Supp.2d 464, 473 (S.D.N.Y.2004)). However, where "an act contributing to the claim occurs within the filing period, the entire time period of the [claim] may be considered by a court for the purposes of determining liability." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Nicoletti v. N.Y. City Dep't of Educ. Office of Legal Servs., No. 08 Civ. 11305(WHP), 2009 WL 4756508, at *2 (S.D.N.Y. Dec. 7, 2009).
Here, Williams filed his NYSDHR complaint on July 13, 2009. (See Cmplt. at 20) Accordingly, only claims based on conduct that took place between September 16, 2008-300 days prior to July 13, 2009—and July 13, 2009 were timely filed. Although Williams does not plead when the allegedly discriminatory conduct took place, the documents attached to the Complaint make clear that the alleged discriminatory conduct about which Williams complains—Defendants' failure to assign Williams to a clerical position—occurred on August 4, 2008. (Id. at 7, 16) Furthermore, the conduct complained of was a discrete act and not of a continuing nature. As such, the 300-day limitations period began to run on August 4, 2008, and expired before July 13, 2009. See Morgan, 536 U.S. at 114, 122 S.Ct. 2061 ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.' Morgan can only file a charge to cover discrete acts that `occurred' within the appropriate time period."); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir.2010) ("With respect to claims based on `termination, failure to promote, denial of transfer, or refusal to hire,' section '2000e-5(e)(l) "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period," even if other acts of discrimination occurred within the statutory time period.'") (quoting Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir.2004) (quoting Morgan, 536 U.S. at 105, 122 S.Ct. 2061)) (emphasis in Patterson); Matthews v. Corning Inc., 737 F.Supp.2d 133, 135 (W.D.N.Y.2010) ("The 300-day limitation period begins to run, for each discrete act of alleged discrimination or retaliation, on the date that the act—such as termination, failure to promote, or refusal to hire— takes place."); Manko v. Deutsche Bank, 554 F.Supp.2d 467, 476 (S.D.N.Y.2008) (same).
Because the August 4, 2008 denial of a clerical position took place more than 300 days before Williams' July 13, 2009 NYSDHR complaint was filed, his Title
Although Williams has not requested leave to re-plead, the Court has considered whether he should be given an opportunity to do so. The Second Circuit has admonished that courts "should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (internal quotation marks and citation omitted). However, a court may decline an opportunity to re-plead "when amendment would be futile." Tocker v. Philip Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir.2006) (citing Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.2003)).
Here, the Court finds that amendment would be futile, because the deficiencies in Williams' claims are not a result of "inadequate[ ] or inartful[ ]" pleading, Cuoco, 222 F.3d at 112, and are not susceptible to cure. Williams's NYSHRL and NYCHRL claims are barred by the election of remedies doctrine, and his Title VII claim is time-barred. These obstacles cannot be overcome through re-pleading.
For the reasons stated above, Defendants' motion to dismiss is granted. The Clerk of Court is directed to terminate the motion (Dkt. No. 14) and to close this case. The Clerk will mail a copy of this order by certified mail to pro se plaintiff Dwight Andre Williams, 86 Mother Gaston Blvd., Apt. IF, Brooklyn, New York 11233.
SO ORDERED.
