The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action pro se asserting claims of employment discrimination. See Compl. dkt # 1. Defendant moves pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss certain claims asserted in the Complaint. See Def. Motion, dkt. # 20. Plaintiff opposes the motion and cross-moves to stay the action during the pendency of an administrative proceeding in the State of New York. See Plt. Cross-Motion, dkt. # 28. For the reasons that follow, Defendant's motion is granted in part and denied in part. Plaintiff's cross-motion is denied.
On November 8, 2004, Plaintiff filed an administrative complaint with the New York State Division of Human Rights ("DHR") alleging certain discriminatory conduct by his employer, Defendant Regal Entertainment Group ("Regal"), including discriminatory suspension and failure to promote. Sheppard Aff. Ex. A. Plaintiff alleged that Regal discriminated against him on the basis of national origin, age, race, and color. Id. The administrative complaint was "dual filed" with the Equal Employment Opportunity Commission ("EEOC"). Id. On October 13, 2006, the DHR issued a "Determination and Order After Investigation" in Plaintiff's case, finding that there was "NO PROBABLE CAUSE" to believe that Regal had engaged in or was engaging in the unlawful discriminatory practices complained of in the administrative complaint. Id. at Ex. B. Plaintiff's administrative complaint was dismissed and the matter closed. Id. On November 30, 2006, the EEOC issued Plaintiff a "Dismissal and Notice of Rights" letter ("right-to-sue letter"). Id. at Ex. C.
New York Executive Law § 297(9) provides, in pertinent part, as follows:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division.
N.Y. Exec. Law § 297(9)(emphasis added).
"[O]nce a complainant elects the administrative forum by filing a complaint with the NYSDHR, a subsequent judicial action on the same complaint is generally barred unless one of the three exceptions in the statute is applicable." Johnson v. County of Nassau, 411 F. Supp.2d 171, 184 (E.D.N.Y. 2006). In Plaintiff's case, the administrative claim filed on November 8, 2004 was not dismissed on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled. Thus, pursuant to New York Executive Law § 297(9), Plaintiff's current claims of discriminatory suspension and failure to promote brought under the New York Human Rights Law are barred. See Johnson, 411 F. Supp.2d at 184. "The bar to suit is jurisdictional." Id. (citing Moodie v. Federal Reserve Bank of N.Y., 58 F.3d 879, 883-884 (2d Cir. 1995)). Accordingly, Plaintiff's claims of discriminatory suspension and failure to promote brought pursuant to New York law are dismissed for lack of subject matter jurisdiction.
In July of 2005, after Plaintiff filed his discrimination claim with the DHR, he was discharged from his employment with Regal. On July 18, 2005, Plaintiff filed a second administrative complaint with the DHR alleging discrimination on the grounds of disability, race/color, and unlawful retaliation surrounding his discharge. See Sheppard Aff. Ex. D. The administrative complaint was "dual filed" with the EEOC. Id. On November 29, 2006, Plaintiff filed an Amended Complaint with the DHR asserting discharge on the grounds of disability, race/color, age, national origin and retaliation. Id. Ex. E. On January 19, 2007, the DHR issued a "Determination After Investigation" concluding that there was "PROBABLE CAUSE to believe that [Regal] has engaged or is engaging in the unlawful discriminatory practice complained of" and recommended the matter for public hearing. Id. Ex. F. The matter is still pending before the DHR, and Plaintiff has not requested or received a dismissal of the DHR claim on the grounds of administrative convenience. Plaintiff has not received a right-to-sue letter from the EEOC in connection with these federal charges.
Defendant argues that Plaintiff's claims arising from his discharge*fn1 must be dismissed without prejudice because they are premature. Plaintiff argues in his cross-motion that the instant matter should be stayed pending the outcome of the public hearing before the DHR.
The federal claims arising from Plaintiff's claims of discriminatory suspension and denial of promotion are ripe for adjudication. Delay of the federal discriminatory suspension and denial of promotion claims pending resolution of the Executive Law discharge claims would serve no useful purpose. If the claims arising from Plaintiff's discharge proceed before the DHR in a public hearing, the New York Executive Law claims will be barred in this Court pursuant to New York Executive Law § 297(9) for the reasons discussed above at Point I(a)(Election of Remedies). While Plaintiff may wish to have all of claims adjudicated in one forum, he can ...