United States District Court, Southern District of New York
April 13, 1990
SAMUEL E. SONG, PLAINTIFF,
IVES LABORATORIES, INC., A DIVISION OF AMERICAN HOME PRODUCTS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Kimba M. Wood, District Judge.
Plaintiff Dr. Samuel Song was hired in 1975 as the Associate
Medical Director at Ives Laboratories. Beginning in July 1981,
disputes arose involving plaintiff's role at Ives until, in
October 1983, plaintiff was notified that his employment was to
be terminated. On May 30, 1984, plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC"). In accordance with its own regulations, the EEOC
referred plaintiff's charge to the State Division of Human
Rights ("SDHR").*fn1 SDHR did not perform its own
investigation of plaintiff's allegations. After the EEOC issued
plaintiff a Notice of Right to Sue, SDHR, on September 26,
1986, dismissed plaintiff's complaint on grounds of
Plaintiff then commenced this action against defendant Ives
Laboratories, Inc., alleging that he was discharged because of
his Korean national origin in violation of the Civil Rights Act
of 1866, as amended, 42 U.S.C. § 1981 ("Section 1981"), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"), and the New York State Human Rights Law, N Y
Exec.Law § 296 (McKinney 1982 & Supp. 1989).
Defendant moves for partial summary judgment, seeking
dismissal of plaintiff's Section 1981 claim and the pendent
Human Rights Law claim. Defendant argues that plaintiff's
Section 1981 claim is no longer viable in light of the Supreme
Court's recent decision in Patterson v. McLean Credit Union,
___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Defendant
moves to strike plaintiff's Human Rights Law claim on the basis
of a recent New York intermediate appellate court decision that
defendant argues bars plaintiff's claim on the ground of
election of remedies. For the reasons that follow, defendant's
motion to dismiss the Section 1981 claim is granted, but its
motion to dismiss the Human Rights Law claim is denied.
I. Plaintiff's Section 1981 Claim
Plaintiff's complaint alleges discrimination in the
workplace, beginning six years after his employment commenced.
In Patterson, the Supreme Court held that Section 1981 "extends
only to the formation of a contract, but not to problems that
may arise later from the conditions of continuing employment."
109 S.Ct. at 2372. Plaintiff concedes that because he is not
alleging discrimination in the formation of his contract,
Patterson would ordinarily bar his Section 1981 claim. He
argues, however, that Patterson should not be applied
retroactively. Citing a single district court opinion,
Gillespie v. First Interstate Bank, 717 F. Supp. 649, 651 n. 1
(E.D.Wis. 1989), plaintiff contends that in light of the
substantial time and money plaintiff has invested in
prosecuting the Section 1981 claim, it would be unfair and
inequitable to apply Patterson retroactively.
Patterson must be applied retroactively in this case. The
general rule is that cases are decided "in accordance with the
law existing at the time of decision." Goodman v. Lukens Steel
Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621, 96 L.Ed.2d 572
(1987). The Supreme Court has adopted a three-prong test to
determine, in most cases, whether an exception should be made
to the general rule of retroactive application. See Chevron Oil
Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d
296 (1971).*fn2 There are, however,
circumstances in which courts must apply new decisional law
retroactively without applying the three-prong test. When the
Supreme Court itself has given retroactive application to a
newly-adopted principle "to govern the very claim at issue in
the case before it," lower courts must do likewise, without
regard to the Huson criteria. Welyczko v. U.S. Air, Inc.,
733 F.2d 239, 241 (2d Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct.
512, 83 L.Ed.2d 402 (1984). See also Kofer v. Village of
Pelham, 710 F. Supp. 483, 485 (S.D.N.Y. 1989) ("Judicial
decisions, of course, always work retroactively unless a court
specifically directs otherwise, as did the Supreme Court in
Huson."). In Patterson, the Supreme Court, by affirming the
Circuit Court of Appeals' dismissal of plaintiff's claim,
applied retroactively its ruling concerning the scope of
Section 1981 and thus barred the very claim that was in front
of the Court. Therefore, this Court is without discretion even
to apply the Huson test, and plaintiff's Section 1981 claim
must be dismissed.*fn3
II. Plaintiff's Pendent State Law Claim Under the Human Rights
Defendant argues that plaintiff's pendent state law claim
under the state Human Rights Law, N.Y.Exec.Law § 296, is barred
by the doctrine of election of remedies. Section 297(9) of the
Human Rights Law provides, in relevant part:
Any person claiming to be aggrieved by an unlawful
discriminatory practice shall have a cause of
action in any court of appropriate jurisdiction
for damages and such other remedies as may be
appropriate, unless such person had filed a
complaint hereunder [with the State Division for
Human Rights] or with any local commission on
human rights, . . . provided that, where the
division has dismissed such complaint on the
grounds of administrative
convenience, such person shall maintain all rights
to bring suit as if no complaint had been filed.
Under this section, an aggrieved plaintiff has the option of
instituting either judicial or administrative proceedings, but
not both. Once a particular procedure is invoked, a claimant is
subsequently barred from electing any other remedy, unless SDHR
dismisses the complaint for administrative convenience. Filing
an administrative complaint directly with the state or local
agency thus ordinarily cuts off the complainant's right to
resort to the state courts to redress human rights law
violations. See Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887,
406 N.E.2d 744 (1980); West v. Technical Aid Corp., 111 Misc.2d 23,
24, 443 N.Y.S.2d 318, 320 (Sup.Ct. 1981).
Citing a recent decision of a New York state appellate court,
Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780
(1st Dept. 1989),*fn4 defendant contends that plaintiff's
filing of a complaint with the EEOC constitutes a binding
election of state law remedies that would bar the claim from
being brought in state court. In Carter-Wallace, the court,
overruling precedent, held that a plaintiff who files a charge
of discrimination with the EEOC, which in turn refers the
complaint to SDHR, is barred from instituting an action in
state court under the Human Rights Law because "[t]he right to
bring an action in state court should not depend on which
agency the grievant files with, the decision to file with one
rather than the other being more likely than not fortuitous."
Id. 541 N.Y.S.2d at 780. Put simply, the court held that the
EEOC's referral of the claim to the state agency serves as an
effective election of remedies under section 297(9).
In the instant case, plaintiff Samuel Song filed his claim of
discrimination with the EEOC, which in turn referred it over to
SDHR. SDHR, on September 26, 1986, ordered dismissal of the
complaint "on the grounds of administrative convenience."
Defendant argues that, in light of Carter-Wallace, Song must be
deemed to have elected his remedies under the Human Rights Law,
and that a state court would now be obliged to dismiss his
complaint, and thus that this Court must also dismiss the state
Carter-Wallace does not require dismissal of plaintiff's
Human Rights Law claim. Section 297(9) of the Human Rights Law
provides that "where the Division has dismissed such complaint
on the grounds of administrative convenience, such person shall
maintain all rights to bring suit as if no complaint had been
filed." New York courts interpreting this language have held
that an administrative convenience dismissal does not bar a
complainant from maintaining the same type of action in state
court. See, e.g., Pan American Airways, Inc. v. New York Human
Rights Appeal Bd., 61 N.Y.2d 542, 548-49, 475 N.Y.S.2d 256,
259, 463 N.E.2d 597, 600 (1984). Indeed, in Carter-Wallace, the
court explicitly referred to this exception and stated that an
election of remedies has not taken place when "an
administrative proceeding is dismissed on the ground of
administrative convenience, in which event a court action may
then be commenced (Executive Law § 297)." Carter-Wallace,
541 N.Y.S.2d at 781. Federal courts in New York have recognized
that because state courts may still entertain such claims,
administrative convenience dismissals do not prevent the
exercise of pendent jurisdiction over Human Rights Law claims.
See Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494
(S.D.N.Y. 1989); Sprott v. Avon Products, Inc., 596 F. Supp. 178,
184 (S.D.N.Y. 1984); see also Koster v. Chase Manhattan
Bank, N.A., 609 F. Supp. 1191, 1196 (S.D.N.Y. 1985); Meschino v.
& Telegraph Corp., 563 F. Supp. 1066, 1074 (S.D.N.Y. 1983).
Therefore, because Song could still maintain his Human Rights
Law action in state court, defendant's reliance on
Carter-Wallace is misplaced.
The doctrine of pendent jurisdiction provides ample authority
for entertaining plaintiff's state claim. In United Mine
Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966), the Supreme Court broadly defined the power
of a federal court to hear a pendent state law claim:
Pendent jurisdiction, in the sense of judicial
power, exists whenever there is a claim "arising
under [the] Constitution, the Laws of the United
States, and Treaties made . . . U.S. Const., Art.
III, § 2, and the relationship between that claim
and the state claim permits the conclusion that the
entire action before the court comprises but one
Id. at 725, 86 S.Ct. at 1138. Provided that the federal and
state claims "derive from a common nucleus of operative fact,"
then "there is power in federal courts to hear the whole." Id.
Because there is no dispute in the instant case that
plaintiff's federal and state claims derive from a "common
nucleus of operative fact," this Court plainly has the power to
entertain plaintiff's state claim.
Application of the doctrine of pendent jurisdiction, as the
Supreme Court has noted, is discretionary. Id. While a court
possesses the inherent power to decide a case, it need not
exercise that power. The Court must balance "considerations of
comity, fairness to the litigants, judicial economy, and the
avoidance of needless decisions of state law." Federman v.
Empire Fire and Marine Ins. Co., 597 F.2d 798, 809 (2d Cir.
1979). Dismissal of the state claim is the recommended
procedure "if state issues predominate or jury confusion is
likely due to divergent legal theories, and in cases where the
federal claim is disposed of prior to trial." Id.
These discretionary factors militate in favor of the exercise
of pendent jurisdiction in this case. First, considerations of
comity and federalism are not implicated where, as here, the
state agency has dismissed the complaint on the ground of
administrative convenience and there is no pending proceeding
before the agency. If, instead, plaintiff had appeared before
the state agency and the state agency had become heavily
involved in the investigation of plaintiff's discrimination
charge, the Court would be reluctant to interfere with the
ongoing state administrative proceeding. Cf. Ohio Civil Rights
Comm'n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct.
2718, 91 L.Ed.2d 512 (1986) (in state administrative
proceedings that are coercive, rather than remedial, federal
courts must abstain). However, such concerns are not present in
the instant case where the state agency has conducted no
investigation of plaintiff's allegations.
Second, a rule barring the exercise of pendent jurisdiction
in this type of Title VII case would work undue hardship on
litigants and would waste judicial resources by fostering
duplicative litigation. Because Title VII has been construed as
vesting jurisdiction exclusively in the federal courts, see
Bradshaw v. General Motors Corp., 805 F.2d 110, 112 (3d Cir.
1986); Dyer v. Greif Bros., Inc., 766 F.2d 398, 399-400 (9th
Cir. 1985); but see Donnelly v. Yellow Freight System, Inc.,
874 F.2d 402, 405-09 (7th Cir.), cert. granted, ___ U.S. ___,
110 S.Ct. 363, 107 L.Ed.2d 349 (1989), the claims could not be
brought together in state court, leaving an aggrieved plaintiff
with no choice but to proceed in two separate forums. Requiring
litigation of these claims in two forums adds unnecessary
expense for the litigants, and adds unnecessary volume to
already overloaded judicial systems.
By contrast, there is no indication in this case that
deciding plaintiff's cause of action would require delving into
uncharted areas of state law. Nor is there any indication that
state issues will predominate. Although some courts have
declined to exercise pendent jurisdiction over state Human
Rights Law claims on the ground that jury confusion is likely,
compare Barbetta v.
Chemlawn Services Corp., 669 F. Supp. 569, 571 (W.D.N.Y. 1987)
(dismissing pendent human rights claim because "[j]ury
confusion is highly likely"); Alveari v. American Int'l Group,
Inc., 590 F. Supp. 228, 232 (S.D.N.Y. 1984) (refusing to retain
jurisdiction over state claim because such retention would
"inevitably add to the proof in this case and complicate what
can be a simple, straightforward non-jury case") with Giuntoli
v. Garvin Guybutler Corp., 726 F. Supp. 494 (S.D.N.Y. 1989)
(exercising pendent jurisdiction over pendent Human Rights Law
claim); Lehtinen v. Bill Communications, Inc., No. 88 Civ. 8257
(S.D.N.Y. Oct. 24, 1989) (argument in favor of pendent
jurisdiction "impresses the Court as sensible and reasonable");
Selbst v. Touche Ross & Co., 587 F. Supp. 1015, 1017 (S.D.N Y
1984) (exercising pendent jurisdiction), at this point, the
Court has no reason to believe that jury confusion is likely to
occur in this case. Therefore, the Court finds that the
exercise of pendent jurisdiction in this case is proper.*fn5
For the foregoing reasons, defendant's motion to dismiss
plaintiff's Section 1981 claim is granted, and defendant's
motion to dismiss plaintiff's pendent Human Rights Law claim is