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July 20, 1976

Blanche Mitchell, Plaintiff
National Broadcasting Company, and S. Theodore Nygreen, Manager of Information Services, Defendants

Metzner, D.J.

The opinion of the court was delivered by: METZNER


Defendants National Broadcasting Company (NBC) and S. Theodore Nygreen move to dismiss the complaint and for summary judgment based on the theory that plaintiff Blanche Mitchell's employment discrimination claim has already been adjudicated and dismissed on the merits. The action is brought pursuant to 42 U.S.C. § 1981.

 The record discloses that plaintiff commenced employment in March 1972 as an Operations Administrator in the Information Services Department of NBC. She was discharged from her position on November 19, 1973, and filed a complaint with the New York State Division of Human Rights on December 3, 1973, claiming that she was discharged because she is black. Thus, the constitutional issue was presented by plaintiff from the inception of her attempt to obtain redress.

 On February 11, 1974, the Regional Director of the Division of Human Rights issued an order dismissing the complaint on a finding of no probable cause. This decision was based on both documentary evidence and oral testimony. Plaintiff was informed of her right to appeal to the New York State Human Rights Appeal Board, which appeal she perfected on February 12, 1974. On July 22, 1974, the Appeal Board, by a two-two vote of the panel, affirmed the Division of Human Rights' dismissal, a split vote requiring affirmance. Two members would have remanded for further investigation.

 On August 26, 1974, plaintiff, now represented by counsel, petitioned the Appellate Division, First Department, of the New York Supreme Court for a review of the Appeals Board decision pursuant to both Section 298 of the New York Human Rights Law, N. Y. Exec. Law § 298 (McKinney 1972), and Article 78 of the New York Civil Practice Law and Rules, N.Y.C.P.L.R. § 7801 et seq. (McKinney 1963 & Supp. 1975). On November 7, 1974, following a full review of the administrative record, plus oral argument of counsel on the petition, the Appellate Division unanimously confirmed the affirmance by the Appeal Board.

 Finally, on November 20, 1975, plaintiff filed this action under 42 U.S.C. § 1981 charging racial discrimination in employment. Thus, this court is presented with the narrow issue, seemingly of first impression, of whether a state administrative and judicial proceeding, instituted pursuant to required state exhaustion under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-5(c), has a res judicata effect barring later action under Section 1981.

 This is not a Title VII case and therefore plaintiff's heavy reliance on Voutsis v. Union Carbide Corporation, 452 F.2d 889 (2d Cir. 1971), is misplaced. Voutsis held that the determination by the state was not res judicata in the subsequent Title VII action. The statute (42 U.S.C. § 2000e-5(c)) requires resort to the state remedy as a prerequisite to maintaining such an action in the federal court. It would be anomalous to argue that the very state proceeding that is required by Title VII bars the contemplated federal remedy under Title VII.

 The same reasoning does not apply, however, to 42 U.S.C. § 1981. The Supreme Court has made it perfectly clear that Section 1981 provides a separate and independent federal remedy, differing from Title VII both in the relief available and the method of invocation. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). Accordingly, the question of estoppel by state proceedings must be examined largely without reference to the Title VII procedures.

 This is also not the case of Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 (1975). In Lombard, plaintiff had sued under Article 78 to overturn an arbitrary and capricious state administrative determination. He then brought a federal action under 42 U.S.C. § 1983 for denial of due process in the hearing afforded him. The court held that he had not raised the constitutional issue in the state court proceeding, and that he was not barred from first raising it in federal court on the basis that it could have been raised in the state proceeding. This holding has since been criticized, Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975); Note, 88 Harv. L. Rev. 453 (1974); cf. McCune v. Frank, 521 F.2d 1152, 1156 n.10 (2d Cir. 1975); but even the Lombard court agreed that if the constitutional issue had been actually raised, plaintiff would have "waived" the right to the federal action. Lombard v. Board of Education, 502 F.2d at 636-37; Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093, 42 L. Ed. 2d 686, 95 S. Ct. 686 (1974).

 The New York Human Rights Law provides protection without limitation against discrimination. This protection is broader than that afforded by the Fourteenth Amendment. Union Free School District No. 6 v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 320 N.E.2d 859, 362 N.Y.S.2d 139 (1974); State Division of Human Rights v. Kilian Manufacturing Corp., 35 N.Y.2d 201, 318 N.E.2d 770, 360 N.Y.S.2d 603 (1974). Accordingly, plaintiff cannot be heard to argue that a narrower standard was applied by the state proceedings than if her claim had been determined under the Fourteenth Amendment.

 Plaintiff had a full and fair opportunity to present her case and an opportunity to seek court review of any adverse findings. Under such circumstances, the judicial decisions, even of an administrative body, have binding effect. United States v. Utah Construction and Mining Company, 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966).

 It may be argued that the indicated result forces a party to make an election between a Title VII proceeding and an action under Section 1981 in view of the decision in the Johnson case, supra. However, I do not find this to be a deterrent to the result since it is obvious that a person who has commenced proceedings pursuant to Title VII is aware not only of its time limitations (cf. Johnson, supra), but is aiming for greater relief than afforded by Section 1981. Thus, the broad remedial purposes intended by Congress in this area are not curtailed by the result.

 Motion granted.

 So ordered. ...

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