filed would have encompassed the sex discrimination claims"). Therefore, Defendant's motion to dismiss Plaintiff's sex discrimination claim is hereby granted.
However, because the color discrimination claim is "reasonably related" to other conduct alleged in his EEOC charge, this Court has jurisdiction to hear that claim. Butts, 990 F.2d at 1401-02. Plaintiff contends that, despite his failure to specifically indicate color discrimination, he did sufficiently raise the issue of color in his statement of the particulars, in which he stated: "I believe, (sic) I was discriminated against because of my race (black)." (Letter from Clements to the Court of 1/3/95.)
A color discrimination claim and a race discrimination claim are "of the same type and character" such that "the defendant cannot claim to be unfairly surprised by the allegation of [color] discrimination." Avagliano v. Sumitomo Shoji America, 614 F. Supp. 1397, 1403 (S.D.N.Y. 1985) (finding race discrimination claim sufficiently related to the asserted national origin discrimination claim to allow former to go forward despite plaintiff's failure to plead it before the EEOC). Accordingly, Defendant's motion to dismiss the color discrimination claim will be denied. See Avagliano, 614 F. Supp. at 1403-04; Peterson v. Insurance Co. of America, 884 F. Supp. 107, 109-110 (S.D.N.Y. 1995).
In his letter submission opposing Defendant's motion, Plaintiff requests leave to amend his Complaint to add state law claims under the New York Executive Law. Defendant opposes the request. Under New York Executive Law § 297 subd. 9, a person claiming to be aggrieved by an unlawful discriminatory practice may seek relief either from a court of appropriate jurisdiction or from the SDHR or any local commission on human rights, but not both. N.Y. Exec. Law § 297(9) (McKinney 1993); see Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 882-83 (2d Cir. 1995). At the time Plaintiff filed his Complaint with the EEOC, such a filing was considered an election of remedies under New York state law.
Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991); McCain v. Eaton Corp., 213 A.D.2d 462, 623 N.Y.S.2d 626, 627 (N.Y. App. Div., 2d Dep't 1995); Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (N.Y. App. Div., 1st Dep't), appeal dismissed, 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989). Thus Plaintiff's election of an administrative forum prior to July 15, 1991 precludes a later court action on the same claims. See McCain, 623 N.Y.S.2d at 627; 1991 N.Y. Laws 342 § 2 ("This act [amending this section] shall take effect immediately [July 15, 1991] and shall apply to complaints filed with any federal commission on human rights on or after such date"), reprinted in N.Y. Exec. Law § 297 (McKinney 1993) (Historical and Statutory Notes on Effective Date of Amendment by L.1991, c. 342); see also Promisel, 943 F.2d at 257. Accordingly, Plaintiff's requested amendment would be futile, and leave to amend will be denied on that basis. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).
Defendant's motion is granted, in part and denied in part. Plaintiff's claim of sex discrimination is hereby DISMISSED; Defendant's motion to dismiss the color discrimination claim is DENIED.
Plaintiff's request for leave to amend the complaint to add claims under the New York Executive Law is DENIED.
* * *
The parties shall appear before the Court for a scheduling conference on April 12, 1996, at 11:00 a.m.
DATED: New York New York
March 25, 1996
DEBORAH A. BATTS