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Wiercinski v. Mangia 57

July 2, 2010


The opinion of the court was delivered by: Glasser, United States Senior District Judge


Defendants move to dismiss a complaint alleging various causes of action including hostile work environment, discrimination, and retaliation under Title VII and New York Human Rights law. For the reasons stated below, the motion to dismiss is granted in part and denied in part.


Plaintiff Adam Wiercinski ("Wiercinski") was employed by defendant Mangia 57, Inc. ("Mangia 57") as a caterer and deliveryman from 1992 until 2008. Wiercinski alleges that, beginning in 1995, he began receiving unfavorable catering assignments which resulted in back problems and a substantial decrease in tip revenues.*fn2 Sometime in 1998, one of Wiercinski's managers began subjecting him to anti-Semitic slurs. He alleges that these and other discriminatory actions continued until his termination in 2008, and that he was subject to such mistreatment at the hands of at least four different managers and two co-workers and at three different work locations.

On July 27, 2007, Wiercinski filed a complaint against Mangia 57 with the New York State Division of Human Rights ("NYSDHR") alleging discrimination. In November of 2008, Wiercinski requested a leave of absence to travel to Poland. He was informed that he might not have a job when he returned, and his complaint with the NYSDHR was referenced. When he returned from Poland on or about February 21, 2008 he was told that he would not be rehired due to a hiring freeze. Wiercinski alleges that several other employees were hired during this time period. Wiercinski filed a second complaint with the NYSDHR on April 23, 2008 alleging retaliation.

On May 13, 2009, the NYSDHR held a hearing on Wiercinski's two complaints. During the course of this hearing, Wiercinski agreed to withdraw his complaints and filed a stipulation to that effect. On May 14, 2009, the NYSDHR dismissed both complaints with prejudice as a result of the stipulation. On July 13, 2009, Wiercinski requested that the NYSDHR reopen his cases, but his request was denied on August 12, 2009. On October 14, 2009 he filed his complaint in this Court against Mangia 57 and several individual defendants (collectively, "Defendants"), and on February 22, 2010 Defendants filed a motion to dismiss the complaint on the basis of res judicata pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn3


1.Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test "the formal legal sufficiency of a claim, and not its underlying facts." Podell v. Citicorp Diners Club, Inc., 859 F. Supp. 701, 704 (S.D.N.Y. 1994). "In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989). Furthermore, dismissal under Rule 12(b)(6) is appropriate when defendants raise the affirmative defense of res judicata "and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law." Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000).

2.Res Judicata

Defendants argue that, because Wiercinski's claims here arise out of the same facts and circumstances as his complaints before the NYSDHR, and because those complaints were dismissed with prejudice by the NYSDHR, his claims are barred by res judicata. Although this argument is facially appealing, it does not accurately reflect the nuances of federal res judicata doctrine.*fn4 Wiercinski's claims fall into three groups: claims under New York State or New York City law; claims under Title VII, and; claims under 28 U.S.C. §§ 1981, 1985, and 1986. The Court will consider each group in turn.

a.City and State Law Claims

Wiercinski brings claims for hostile work environment, discrimination, and retaliation under both New York State and New York City Human Rights laws, as well as a standalone claim for "unlawful discharge."

Under New York's election of remedies doctrine, "a person claiming to be aggrieved by an unlawful discriminatory practice may elect to seek redress in either an administrative or judicial forum where different rights and remedies may be pursued." Universal Packaging Corp. v. N.Y. State Div. of Human Rights, 704 N.Y.S.2d 332, 333 (N.Y. App. Div. 2000). These remedies, however, are mutually exclusive, and "[o]nce a complainant elects the administrative forum by filing a complaint with the Division, a subsequent judicial action on the same complaint is generally barred." Legg v. Eastman Kodak Co., 670 N.Y.S.2d 291, 292 (N.Y. App. Div. 1998). This bar applies even when the complainant is uncounseled and ignorant of the effects of the election of an administrative forum. Magini v. Otnorp, Ltd., 579 N.Y.S.2d 669, 670 (N.Y. App. Div. 1992) ("The statute does not provide that a ...

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