United States District Court, Southern District of New York
August 4, 2000
NORA HARRISON, PLAINTIFF,
NEW YORK CITY OFF-TRACK BETTING CORP. AND ALLEN GUTTERMAN, DEFENDANTS.
The opinion of the court was delivered by: Marrero, District Judge.
DECISION AND ORDER
Plaintiff Nora Harrison ("Harrison") brings suit pursuant to the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"),
after filing a timely charge of discrimination with the Equal Employment
Opportunity Commission and receiving a Notice of Right to Sue. The
complaint alleges age discrimination by defendants, New York City
Off-Track Betting Corporation ("OTB") and Allen Gutterman, Senior Vice
President of marketing at OTB ("Gutterman"), and seeks recovery for,
among other things, lost wages, pension benefits, emotional distress and
loss of enjoyment of life. Compl. ¶ 30. The complaint sets forth
three causes of action against each defendant under the following
provisions: (1) 29 U.S.C. § 623(a)(1); (2) New York State Executive
Law § 296(1)(a); and (3) New York City Administrative Code §
OTB and Gutterman have moved for a partial judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure asserting
that (a) Harrison's State and City human rights claims are barred under
the election of remedies provision of New York State Executive Law §
297(9) and New York City Administrative Code § 8-502(a) and (b) the
complaint fails to state a claim against Gutterman. They also seeks a
stay of discovery, including adjourning Gutterman's deposition until the
motion has been decided.
Harrison is a 70 year old female. Compl. ¶ 3. Since April 19,
1973, she has been employed by OTB. See Plaintiffs Memorandum of Law in
Opposition to Motion, dated Mar. 23, 2000 ("Plaintiffs Memo"), at 2. She
currently holds the title of Chief Clerk, a position she obtained in
March of 1975. See id. Harrison alleges that she has been forced into
inactivity by Gutterman, her supervisor. Compl. ¶ 18. She asserts
that beginning from on or about February 24, 1997 to in or about April or
May, 1999, she was not given any specific job to perform despite repeated
requests. Compl. ¶ 14.
Harrison further contends she was refused the opportunity to work
overtime and was assigned "menial jobs, beneath her position as Chief
Clerk." Compl. ¶¶ 15, 16. In addition, Harrison alleges that work
which should have been assigned to her was divided between two women who
were thirty-two and thirty years old. Compl. ¶ 17. Harrison further
alleges that on or about July 31, 1997, Gutterman told her that she
should consider retiring because she "wasn't making a contribution to the
company." Compl. ¶ 18.
In August, 1997, Harrison also filed a complaint with the State
Division of Human Rights (the "Division") based on the preceding
allegations. See Declaration of Elizabeth Galani, sworn to Feb. 24,
2000, Ex. A. By order dated March 30, 1999, the
Division made a finding of "NO PROBABLE CAUSE." See id.
A. Election of Remedies
OTB asserts that this Court lacks subject matter jurisdiction over
Harrison's State and City human rights law claims because Harrison's
election of an administrative remedy became irrevocable once her claim
was heard by an examiner from the Division. The current version of
Executive Law § 297(9), which became effective August 5, 1997,
authorizes the filing of a cause of action in court by any person
claiming to be aggrieved by an unlawful discriminatory practice. See
N.Y. Exec. Law § 297 (McKinney 1993 & Supp. 2000). However, this
right is waived if the claimant files a complaint with any local
commission on human rights, unless (1) the agency has dismissed the
complaint for administrative convenience; (2) there is untimeliness on
the part of the agency; or (3) the claimant's election of an
administrative remedy is annulled. See id. Under these three exceptions,
a complainant maintains all rights to bring suit as if no complaint had
been filed with the Division. See id.
The statutory procedure for annulment of an election of remedies is as
At any time prior to a hearing before a hearing
examiner, a person who has a complaint pending at the
division may request that the division dismiss the
complaint and annul his or her election of remedies
so that the human rights law claim may be pursued in
court, and the division may, upon such request,
dismiss the complaint on the grounds that such
person's election of an administrative remedy is
Id. Prior to August 5, 1997, the provisions allowing the filing of direct
discrimination actions in court either upon annulment of an election of
administrative remedy by claimant or upon agency untimeliness, did not
exist, making administrative convenience the only method for voiding a
claimant's choice of an administrative remedy See id.
In Harrison's opposition to the instant motion, she asserts that
because she filed her verified complaint for an administrative remedy on
August 5, 1997, she was given no opportunity to properly elect her remedy
and was relegated to the singular "arcane exception" of administrative
convenience. See Plaintiffs Memo at 3. Harrison further asserts that she
had no knowledge of the change in law and therefore alleges that she gave
up her rights to sue in court by filing with the Division. See Plaintiff
Nora Harrison's Affidavit in Opposition, dated Mar. 23, 2000, ¶ 10.
Harrison's arguments reflect a misunderstanding of Executive Law §
297(9). The 1997 provision at issue here served to broaden a
complainant's remedies, not to narrow them. Under the enhanced
protections the law now provides, a plaintiff could annul an
administrative complaint filed at the Division and bring an action in
court as long as the merits of the complaint had not been adjudicated.
Since Harrison filed her complaint with the Division on August 5, 1997,
and a final determination on it was not rendered until March 30, 1999,
she had over 19 months to discover the annulment provision and change her
course of action.
OTB is correct to point out that any claim of ignorance advanced by
Harrison or her attorney does not free her from the application of the
law, or remove the bar to bringing the relevant claims in this Court.
See Defendants' Reply Memorandum of Law in Further Support of Motion for
Partial Judgment on the Pleadings, dated Apr. 14, 2000 ("Defendants'
Reply Memo"), at 3. As the well known adage states, ignorance of the law
is not an excuse. See United States v. Gregg, 612 F.2d 43, 51 (2d Cir.
1979). In a situation where Harrison had a 19 month opening in which she
or her attorney could have learned of the change in the statute, this
maxim is particularly appropriate. Thus,
this Court dismisses Harrison's claims under the State and City human
rights laws for lack of subject matter jurisdiction.
B. Gutterman's Liability
The second portion of defendants' motion asserts that Gutterman cannot
be held individually liable and that the charges against him personally
should be dropped for failure to state a claim. Harrison responds by
arguing that Gutterman had supervisory authority over her and therefore
falls within the class of employees who are subject to individual
liability. See Plaintiff's Memo at 5.
The liability of defendants in this action is governed by the ADEA,
which specifically incorporates the powers, remedies, and procedures of
Title VII of the Civil Rights Act of 1964 ("Title VII"). See
42 U.S.C. § 12117. See also Wanamaker v. Columbian Rope Co.,
108 F.3d 462, 465 (2d Cir. 1997) (claims brought under the ADEA follow
the same approach taken for Title VII claims). According to Tomka v.
Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), a seminal case on the
issue of employee liability, "individual defendants with supervisory
control over a plaintiff may not be personally held under Title VII." See
also Gierlinger v. Gleason, 160 F.3d 858, 867 (2d Cir. 1998) (supporting
the holding in Tomka, by dismissing a Title VII claim of individual
liability against claimant's supervisor); accord Hawkins v. 1115 Legal
Serv. Care, 163 F.3d 684, 689 (2d Cir. 1998).
Title VII defines "employer" as any person who, engaged in an industry
affecting commerce, has at least fifteen employees, and any agent of such
a person. See Tomka, 66 F.3d at 1313 (citing 42 U.S.C. § 2000e(b)
(1994)). The controversy over this definition surrounds the term "agent"
which, according to Harrison, encompasses an individual in Gutterman's
position. See Plaintiff's Memo at 4. Harrison asserts that Gutterman's
status as a supervisory employee, along with his ability to hire and fire
her, renders him an agent who is individually liable. See id.
The analysis in Tomka, however, suggests otherwise. The Tomka court, 66
F.3d at 1313, asserted that while on its face 42 U.S.C. § 2000e(b)
appears to allow for individual liability, the result from such a concrete
interpretation would be at odds with true Congressional intent. The
legislative history indicates that an important goal behind
42 U.S.C. § 2000e(b) was to limit liability in discrimination suits
involving small companies or entities that could not absorb the cost of
litigation. See id. at 1314. Thus, the Second Circuit reasoned that it
would be difficult to reconcile why a Congress concerned with protecting
small employers would then allow an individual employee, who may be even
more ill-suited to defend lawsuits, to be sued in his personal capacity.
Harrison cites three cases from the Northern District of New York in
support of the proposition that individual liability for discrimination
exists against defendants who serve in supervisory roles. See Plaintiff's
Memo at 5. However, as OTB notes, these cases have all been undermined by
Tomka and subsequent case law. See Walsh v. City of Auburn,
942 F. Supp. 788, 797 n. 5 (N.D.N.Y. 1996) (stating, "After Tomka,
Austin, Wanamaker, and Bostick are no longer authoritative.");
Defendants' Reply Memo at 4. The Tomka court addressed and rejected the
very issue of supervisory employees that Harrison argues should be an
exception to the bar on individual liability:
While it might be argued that a supervisory employee
with the power to hire, fire or discipline a plaintiff
should be treated as an "employer". . . this
interpretation would require a court to differentiate
between supervisors with the power to hire and fire
from supervisors without these powers. Because Title
VII speaks only of "agents," there is no basis in the
statute for this distinction.
Tomka, 66 F.3d at 1314-15.
Therefore, in order to find individual liability here, Harrison must
rely on any
State and City human rights laws violated by Gutterman. See Naftchi v.
New York Univ., 14 F. Supp.2d 473, 492 n. 150 (S.D.N.Y. 1998). While
Harrison alleges that these exist (see Plaintiffs Memo at 4), this issue
has been resolved here, as such claims by Harrison are now barred by
application of the election of remedies provision to her complaint.*fn1
See discussion, supra. Accordingly, the Court dismisses all of Harrison's
claims against Gutterman.
For the reasons set forth in the foregoing Decision, it is hereby
ORDERED that defendants' motion for partial judgment on the pleadings
is granted in its entirety;*fn2 and it is further
ORDERED that dismissal as to Gutterman is conditioned on his appearance
at a deposition in this matter on or before August 25, 2000; and it is
ORDERED that the parties are directed to appear for a conference with
the Court on August 10, 2000 at 4:00 p.m.