The opinion of the court was delivered by: MORRIS E. LASKER
Vincent Moodie brought this race discrimination action against his former employer, the Federal Reserve Bank of New York ("Bank"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York Executive Law § 290 et seq. A trial was held at which the jury deadlocked and a mistrial was declared.
On the eve of the re-trial, the Bank now moves to dismiss Moodie's state law claim for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3).
Moodie argues that (1) § 297(9) is "primarily intended to avoid concurrent proceedings regarding the same claim" (Pl. Mem. at 8, emphasis in original), (2) the statute does not work to deprive this court of subject matter jurisdiction but merely provides the Bank with the affirmative defense of failure to state a cause of action, and (3) the Bank has waived this affirmative defense because it was not timely raised in responsive pleadings as required by Fed. R. Civ. P. 8(c). Moodie also argues that dismissal of the state law claim would violate his "right to a full and fair hearing on the merits of his claim." (Pl. Mem. at 12.)
The New York Court of Appeals has emphasized that, in enacting § 297(9), the legislature intended the remedies available to persons alleging discrimination to be mutually exclusive:
Executive Law § 297(9) expressly precludes administrative review after the commencement of an action in a judicial forum. Similarly, once a complainant elects the administrative forum by filing a complaint with the Division of Human Rights, a subsequent judicial action on the same complaint is generally barred. The single exception to the mutually exclusive nature of the elective remedies arises when a complaint is dismissed by the Division for "administrative convenience." (Citations omitted.)
Marine Midland Bank, N.A. v. New York State Div. of Human Rights, 75 N.Y.2d 240, 245, 552 N.Y.S.2d 65, 66, 551 N.E.2d 558 (1989).
The New York Court of Appeals has also held that § 297(9) precludes a plaintiff from commencing an action in court even if she withdraws her administrative complaint prior to any determination by the State Division of Human Rights. Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980).
In support of his argument that § 297(9) was only intended to avoid concurrent proceedings before both the Division of Human Rights and a court, Moodie relies on what he terms "dicta " in Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 110, U.S. , 112 S. Ct. 939 (1992), that: "Once a plaintiff has commenced an administrative proceeding the plaintiff cannot bring a court action while the administrative proceeding is ongoing. Therefore, by the section's terms, Promisel could not bring a state court action while his state administrative action was proceeding."
While Moodie correctly quotes Judge Walker's opinion in that case, the quoted language appears at odds with the pronouncements of New York's highest court, which has been followed uniformly by both state and Southern District courts. See Pan American Airways v. New York Human Rights Appeal Board, 61 N.Y.2d 542 at 548, 475 N.Y.S.2d 256, 259, 463 N.E.2d 597 (1984) ("the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive"); Magini v. Otnorp, Ltd., 180 A.D.2d 476, 579 N.Y.S.2d 669, 670 (1st Dept. 1992) ("Once a complainant elects the administrative forum by filing a complaint with the Commission on Human Rights, that becomes the sole avenue of relief, and subsequent judicial action on the same complaint is generally barred, except in the one instance where dismissal is for administrative convenience"). See also Dapelo v. Banco Nacional de Mexico, 767 F. Supp. 49, 51 (S.D.N.Y. 1991) ("this election of remedies provision, thus, allows an aggrieved individual to seek relief from either the State Division of Human Rights . . . or any court of competent jurisdiction but not both"); Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986); Klotsche v. City of New York, 621 F. Supp. 1113, 1116 (S.D.N.Y. 1985) and Koster v. Chase Manhattan Bank, N.A., 609 F. Supp. 1191, 1196 (S.D.N.Y. 1985).
In any event, unlike Moodie, the Promisel plaintiff's agency complaint had been dismissed on the ground of "administrative convenience" -- the only ground which the New York statute specifies as not barring a court action -- and it was on that basis that the Court of Appeals found that Promisel was not precluded by the statute from pursuing a judicial remedy.
The record is undisputed that Moodie filed a complaint with the State Division of Human Rights and that the dismissal of his complaint was not on the ground of "administrative convenience" but rather for lack of jurisdiction over the Federal Reserve Bank. Accordingly, ...