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December 7, 1978

Rubin KREMER, Plaintiff,

The opinion of the court was delivered by: PIERCE


The plaintiff, Rubin Kremer, instituted this Pro se action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. The plaintiff alleges that the defendant, Chemical Construction Corp. ("Chemico"), both discharged him and failed to rehire him because of his religion and national origin. The defendant has moved for dismissal under Fed.R.Civ.P. 12(b) or, alternatively, for summary judgment under Rule 56 on the ground of res judicata. For the reasons that follow, the Court finds that the plaintiff is entitled to a De novo hearing on the claims presented to the Court as provided for in 42 U.S.C. § 2000e-5 and therefore denies defendant's motion.


 The plaintiff, a former employee of Chemico, alleges that he was terminated by the defendant on August 1, 1975 because of his national origin and his adherence to the Jewish religion. He also alleges that Chemico refused to rehire him later because of his national origin and religion. These alleged discriminatory acts are prohibited by both federal and state laws. 42 U.S.C. § 2000e-2(a)(1) (1970); N.Y.Exec.Law § 296(1) (McKinney Supp.1977). *fn1"

 The plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on May 6, 1976, within the filing period. The EEOC referred the matter to the New York State Division of Human Rights ("HRD") as mandated in 42 U.S.C. § 2000e-5(c). *fn2" HRD is the state agency charged with the enforcement of state law prohibiting employment discrimination. That agency reviewed the complaint which alleged age as well as religious discrimination. New York's statute expressly prohibits age discrimination whereas Title VII does not. Compare 42 U.S.C. § 2000e-2(a)(1) With N.Y.Exec.Law § 296(1) (McKinney Supp.1977).

 On March 4, 1977 while the matter was still pending before HRD, the plaintiff again requested EEOC to investigate his claim because of the state's delay in resolving his claims. HRD subsequently reached a determination on April 28, 1977 that the plaintiff's claims were meritless. Its determination was based on the findings that the plaintiff was not rehired because one employee who was rehired had greater seniority than the plaintiff, that another employee who was rehired filled a lesser position than that previously held by the plaintiff, and that the plaintiff's creed and age were not factors considered in Chemico's selection. HRD did not, however, make an express finding that his creed and age were not factors considered by Chemico in its decision to discharge him. On administrative appeal, HRD's determination was affirmed on November 25, 1977 by the State Human Rights Appeals Board on the grounds that HRD's findings were not arbitrary or capricious.

 The plaintiff then appealed the decision to the New York State Supreme Court, Appellate Division, First Department, under N.Y. Exec. Law §§ 296-298. That intermediate appellate court affirmed the decision on February 27, 1978. The matter was not appealed further.

 On May 11, 1978, the EEOC reviewed the HRD's findings, the complaint, and the record and determined that there was no reasonable cause to believe that the plaintiff's claims were valid. It then issued a notice of right to sue. Plaintiff subsequently instituted this action Pro se, and requested a De novo trial under Title VII.


 The issue presented to the Court by the instant motion to dismiss the complaint or, in the alternative, for summary judgment is whether the prior state appellate court review of the state agency's action under state law bars a federal action under Title VII.

 Chemico urges this Court to adopt the approach followed in Mitchell v. National Broadcasting Co., 553 F.2d 265 (2d Cir. 1977) and dispose of this motion similarly. In Mitchell, the plaintiff had instituted an action under 42 U.S.C. § 1981, but prior to instituting the federal action, the plaintiff had brought an action under the N.Y. Human Rights Law with HRD. Only after she was denied relief and after instituting an appeal from HRD's decision with the Appeals Board did that plaintiff seek federal relief by filing a charge of discrimination with the EEOC. The EEOC issued a finding of no probable cause after HRD's determination was affirmed by the Appeals Board and the Appellate Division.

 The plaintiff then instituted an action under § 1981 in federal court, but the action was dismissed on the ground of res judicata. On appeal, the Court of Appeals held that the federal action was indeed barred by res judicata because the plaintiff had sought state court review of the state agency determination. Id. at 276. However, it expressly reserved judgment on the question of whether the principle of res judicata would bar a similar action under Title VII. Id. at 275 n.13.

 In comparison, the plaintiff in this action initially filed a complaint with the EEOC, was referred to HRD, and resumed his request that the EEOC investigate his charges prior to HRD reaching its conclusion. Like the complainant in Mitchell, the plaintiff commenced this action in federal court after failing in his appeal to the state Appellate Division regarding the Appeals Board's affirmance of the HRD determination.

 The similarity of the facts of the instant action to those in Mitchell, Chemico contends, is sufficient to justify a ruling similar to that in Mitchell, particularly since Title VII does not require exhaustion of state judicial remedies prior to instituting federal claims and since the plaintiff chose not to appeal the Appellate Division's affirmance to the New York State Court of Appeals. While Title VII does require that the EEOC defer complaints to HRD, 42 U.S.C. § 2000e-5(c) (1970), it does not require that complainants exhaust state judicial remedies before seeking federal relief. On the contrary, Title VII allows the filing of a complaint with the EEOC 60 days after proceedings are initiated under state law. Id. Chemico contends that if the plaintiff had sought federal relief immediately after the rulings from the HRD and from the State Appeals Board rather than appealing to the state court, his right to a De novo federal trial would have been preserved. See Voutsis ...

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