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HARRISON v. NEW YORK CITY OFF-TRACK BETTING CORP.

August 4, 2000

NORA HARRISON, PLAINTIFF,
V.
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 § 8107(1)(a).

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.

FACTS

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.

DISCUSSION

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 follows:

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 annulled.

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 ...


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