reason to believe that the Regency had acted in a discriminatory manner against Janneh.
Under New York law, when a person chooses an administrative forum, such as the DHR, to file his complaint, and that administrative body subsequently dismisses the complaint for lack of merit, that person cannot later bring a judicial action. Carter v. AT & T Communications, 759 F. Supp. 155, 161 (S.D.N.Y. 1991). "Were this Court to entertain plaintiff's state-law claim, which plaintiff was instrumental in bringing before the State Division ... plaintiff would have two opportunities to litigate the same claim with the possibility of inconsistent results. Clearly, this is inefficient as well as unfair." Long v. AT & T Information Systems, Inc., 733 F. Supp. 188, 199 (S.D.N.Y. 1990). Therefore, plaintiff's claim under New York Human Rights Law must be dismissed.
E. Common Law Claims
Plaintiff sets forth several common law causes of action: intentional infliction of emotional distress, breach of implied contract, breach of implied covenant of good faith and fair dealing, and termination in violation of public policy in regard to his discharge by the Regency. None of these claims survives summary judgment scrutiny, however.
First, New York law recognizes a one year statute of limitations for intentional torts under CPLR § 215. Intentional infliction of emotional distress is subject to such a one year statute of limitations. Kelber v. Forest Electric Corp., 799 F. Supp. 326, 340-41 (S.D.N.Y. 1992); Clay v. ILC Data Device Corp., 771 F. Supp. 40, 45-46 (E.D.N.Y. 1991). Since Janneh was terminated on September 12, 1989 and this action was not filed until October 1, 1992 the statute of limitations has clearly run and the claim must be dismissed.
Second, under New York law it is well settled that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party."
Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987). At will employees may be discharged at any time unless this right of the employer is curtailed by an express agreement.
Id.; Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 235, 448 N.E.2d 86 (1983). Under this precedent there is no cognizable claim for breach of an implied employment contract in New York, and so plaintiff's claim must fail.
Third, the New York courts have refused to recognize a claim for breach of an implied covenant of good faith and fair dealing. Sabetay, 514 N.Y.S.2d at 212. Thus, plaintiff's claim based on this theory must also fail.
Finally, plaintiff has not shown that his termination violated a public policy that is recognized in New York. At best, plaintiff's public policy claim could be read as an abusive discharge claim under which the interest of the employer in exercising an unrestricted right to terminate an at will employee is balanced against the interest of the community in upholding its laws and public policy. See Chin v. American Tel. & Tel. Co., 96 Misc. 2d 1070, 410 N.Y.S.2d 737, 740 (Sup. Ct., New York Co. 1978) (discussing the doctrine of abusive discharge). The doctrine of abusive discharge places upon the plaintiff the burden of showing that a public policy of the state was violated by the defendant. Id. at 741. In this case, plaintiff has not declared what public policy has been violated by the Regency, and so his claim must fail.
Moreover, it is clear that even if plaintiff's common law claims could survive the defendant's motion for summary judgment, these claims are no longer appropriate for adjudication by the federal courts because the federal causes of action to which they secured their pendant jurisdiction have been dismissed. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) (stating that if all federal claims are dismissed before trial the state claims should be dismissed as well).
In summary, the court grants defendant's motion for summary judgment in its entirety and denies plaintiff's motion for summary judgment. Since all claims in this suit have been dismissed, the court directs the clerk to enter judgment in favor of the defendant and close the case.
IT IS SO ORDERED.
Dated November 25, 1994
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge