on human rights, or with the superintendent pursuant to the provisions of section [296-a] of this chapter, 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.
N.Y. Exec. Law § 297(9). The gravamen of this provision is clear: a plaintiff can either bring an administrative action or a court proceeding, but not both. Filing a complaint of discrimination with the DHR constitutes a binding election of an administrative remedy foreclosing access to the state courts for such claims. Defendant argues that plaintiff's pro se filing of his complaint with the DHR constitutes an election to proceed in the state administrative forum and a forfeiture of his right to assert claims in this court. Other courts in this district have agreed. See, e.g., Keeley v. Citibank, N.A., 711 F. Supp. 157, 161 (S.D.N.Y. 1989).
Plaintiff makes two responses. First, he argues that other courts in this district have recognized that certain state claims that came before the DHR can proceed in federal court under its pendent jurisdiction powers. See, e.g., Long v. AT&T Information Systems, Inc., 733 F. Supp. 188, 197-198 (S.D.N.Y. 1990).
The posture of the pendent state claims in Long, however, was vastly different. There, the complainant originally filed his complaint with the EEOC. The state claims came before the DHR only after the EEOC referred the charges to the DHR. Under these circumstances, the court refused to recognize a meaningful election of forums that would penalize the complainant who brings a federal claim which must first be filed with the EEOC in addition to a State Human Rights Law claim. See id. at 198.
Obviously, these equitable concerns upon which the court in Long grounded its recognition of pendent jurisdiction are not present in this case. Plaintiff chose to bring all his claims before the DHR first. We appreciate plaintiff's pro se status at that time and the procedural complexity of raising discrimination claims. However, much of this complexity was resolved by the DHR which kept plaintiff's state law claims and referred his Title VII and ADEA claims to the EEOC for him. Unlike the case in Long, plaintiff by inadvertently filing all his claims with the DHR first was never in the position of losing an opportunity to raise his state claims due to his desire to pursue his federal remedies.
In applying federal pendent jurisdiction, federal courts are obligated to apply state substantive law to the state claim. The limitation on federal jurisdiction includes "any restrictions set by the state on whether a plaintiff may bring a court action regarding the claim." Promisel v. First American Artificial Flowers, 943 F.2d 251, 257 (2d Cir. 1991).
Plaintiff's election of an administrative remedy is binding. Only when the administrative complaint is dismissed for administrative convenience will suit be subsequently allowed. Goosley v. Binghamton City Sch. Dist., 101 A.D.2d 942, 475 N.Y.S.2d 924, 926 (3rd Dep't 1984). Plaintiff elected the administrative route and his complaint was not dismissed for administrative convenience but rather after a finding by DHR of no probable cause for his discrimination claims. Under these circumstances, plaintiff is unable under New York law to seek a state court remedy.
Plaintiff next argues that his discrimination claim based on his disability is a distinct cause of action from those previously filed with the DHR. We disagree. As a case cited by plaintiff instructs:
When a distinction can be made between the relief sought in a petition to the State Division of Human Rights and that claimed in court, the aggrieved individual is not necessarily viewed as having brought a single discriminatory grievance in two different forums so as to brand the first proceeding as a binding election of remedies.
Id. Here, plaintiff wished to assert a claim in federal court for discrimination based upon plaintiff's disability arising from the very same incidents involved in his race and age discrimination claims brought before the DHR. By raising a disability discrimination claim, plaintiff plainly seeks the same relief he sought in his administrative complaint, namely back pay, reinstatement, and the like. Unlike the cases cited by plaintiff which involved discrimination claims and breach of contract claims, this new claim is not distinct but essentially the same discrimination grievance. Therefore, we must enforce the binding election of remedies plaintiff made when he filed his discrimination complaint with the DHR.
To conclude, this court, like the court in Keeley, is barred from exercising pendent jurisdiction over plaintiff's state law claims by N.Y. Exec. Law § 297(9). Accordingly, we grant defendant's motion to dismiss these claims as well.
Dated: White Plains, New York.
July 16, 1992.
GERARD L. GOETTEL