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ST. VINCENT'S HOSP. & MED. CTR. OF NEW YORK v. DIV

December 28, 1982

ST. VINCENT'S HOSPITAL AND MEDICAL CENTER OF NEW YORK AND ARA HOSPITAL FOOD MANAGEMENT, INC., Plaintiffs,
v.
DIVISION OF HUMAN RIGHTS OF THE EXECUTIVE DEPARTMENT OF THE STATE OF NEW YORK AND ELIZABETH HART, Defendants



The opinion of the court was delivered by: POLLACK

Decision and Opinion, Pollack, District Judge. none

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 553 F. Supp.]

 MEMORANDUM

 St. Vincent's Hospital and Medical Center of New York and ARA Hospital Food Management, Inc. v. Division of Human Rights of the Executive Department of the State of New York and Elizabeth Hart, 82 Civ. 79977 (MP)

 For the second time, issues arising out of Elizabeth Hart's claim of employment discrimination on the basis of age under Human Rights Law, N.Y. Executive Law, Art. 15, are before this Court. In order to understand the present action, a brief summary of the history of the action is necessary.

 Prior Proceedings and Issue Before the Court

 Elizabeth Hart was the Director of Nutrition at St. Vincent's Hospital from 1963 until May of 1981 when she was terminated. On July 27, 1981 she filed a complaint with the Division of Human Rights of the Executive Department of the State of New York charging employment discrimination on the basis of age and sex. Hart's decision to file these claims with the agency constituted an election of remedies under Section 300 of the Human Rights Law, N.Y. Executive Law. This Section provides that claims under state employment discrimination law may be brought before the Division or in a Court but states that the decision to proceed in one forum precludes filing the claim in the other.

 Nonetheless, while this complaint was pending, Hart commenced an action in New York State Court asserting claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., under state Human Rights Law, Section 297 and under state tort law on February 2, 1982. This case was removed to the United States District Court for the Southern District of New York and was assigned to this Court's docket designated 82 Civ. 1478. The only activity undertaken in this Court was initiated by the Hospital which moved to strike Hart's jury demand. This motion was never reached. The state and federal claims of employment discrimination were dismissed with prejudice upon the request of the plaintiff and without opposition from the hospital. The remaining state tort claims in the complaint other than the Age Discrimination in Employment Act charges, were remanded to the state court.

 Plaintiffs in the present action seek a declaratory judgment under 28 U.S.C. § 2201 that the effect of the Court's Order dismissing Hart's state employment discrimination claim without opposition was to bar the continued investigation of that claim by the Division of Human Rights. On December 2, 1982, this Court ordered that the state administrative proceedings be stayed pending a study of the situation and that the defendants Hart and the Division of Human Rights show cause why the state administrative proceedings should not be declared barred by the federal court dismissal of the claim. The Division of Human Rights has moved to lift the stay and to dismiss the current suit. Hart has requested that attorney's fees and costs be awarded to her on dismissal of this proceeding.

 For reasons that follow, the stay will be lifted and the complaint dismissed, but without costs or fees to any party.

 Subject Matter Jurisdiction over the Present Action

 Plaintiffs have attempted to base their claim of subject matter jurisdiction on several grounds. Clearly, the mere fact that the complaint seeks a declaratory judgment under 28 U.S.C. § 2201 does not create subject matter jurisdiction. Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 94 L. Ed. 1194, 70 S. Ct. 876 (1950). Also, plaintiffs cannot establish subject matter jurisdiction under 28 U.S.C. § 1343(4) as their complaint does not seek relief under the Age Discrimination Act or under any other Civil Rights statute as required by that Section.

 Plaintiffs claim that jurisdiction is based upon the All Writs Statute, 28 U.S.C. § 1651, however, is valid. This Section provides that:

 
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and ...

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