The opinion of the court was delivered by: Denise Cote, District Judge:
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Luciano Rosario ("Rosario" or "plaintiff") brings this action against defendant New York City Department of Education ("NYCDOE") for employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"). On December 21, 2010, defendant filed a motion to dismiss the plaintiff's December 10, 2010 amended complaint ("the Complaint"). For the following reasons, the defendant's motion to dismiss Rosario's state law claims is granted and the defendant's motion to dismiss Rosario's Title VII claim is denied.
The following facts are drawn from the Complaint and are assumed to be true for the purposes of this motion. Rosario began working for defendant as a per diem substitute teacher in March 2007. In September 2008, the NYCDOE suspended his employment. On June 11, 2009, Rosario filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR"), claiming that his suspension was the result of discrimination based on his arrest record, marital status, and sex, in violation of Title VII and NYSHRL. On December 18, 2009, the NYSDHR issued its Determination, dismissing Rosario's complaint and finding that there was "no probable cause to believe that [NYCDOE] has engaged in or is engaging in the unlawful discriminatory practice complained of." On June 17, 2010, the EEOC issued a right-to-sue letter adopting the NYSDHR Determination's finding of "no probable cause."
On August 17, 2010, plaintiff filed a complaint alleging discrimination based on race, national origin, and age. Defendant filed a motion to dismiss on December 7, 2010, but on December 10, Rosario filed an amended complaint alleging discrimination based solely on national origin. By Order dated December 14, defendant's December 7 motion to dismiss was terminated as moot.
On December 21, the defendant filed a motion to dismiss the amended complaint. In opposition to this motion, plaintiff appears to assert that he was replaced with less qualified mathematics teachers after the assistant principal in his school told him that he spoke with a "Dominican accent." He contends that he suffered discrimination because he is from the Dominican Republic. On March 3, 2011, the December 21 motion became fully submitted.
The December 21 motion moves to dismiss the Complaint on two grounds: (1) that election of remedies provisions in both the NYSHRL and the NYCHRL preclude Rosario from bringing his state statutory claims; and, (2) that Rosario has failed to allege facts adequate to state a claim for relief under Title VII.
I. NYSHRL and NYCHRL Claims
NYCDOE contends that since the plaintiff filed an administrative complaint with the NYSDHR, the election of remedies provisions in the NYSHRL and the NYCHRL preclude Rosario from bringing his state law claims in this Court.
Rosario's opposition to the motion does not address this argument.
Section 297 of the NYSHRL provides, in relevant part, that "[a]ny 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 [with the NYSDHR]." N.Y. Exec. Law § 297(9) (McKinney 2009). Similarly, § 8-502(a) of the NYCHRL provides that "any person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the . . . state division of human rights with respect to such alleged unlawful discriminatory practice." N.Y.C. Admin. Code § 8-502(a) (1999).
Claims need not be identical in order to be barred by the state or city election of remedies provisions.*fn1 See Bhagalia v. State, 644 N.Y.S.2d 398, 399 (App. Div. 1996). A "[c]laimant cannot avoid the jurisdictional bar by merely adding additional elements of damage arising out of the same underlying conduct [or] by changing his legal theory." Id. "[A]ttempts to recover for [the same] injuries under . . . slightly different labels" are subject to dismissal. Horowitz v. Aetna Life Ins., 539 N.Y.S.2d 50, 52 (App. Div. 1989). "The question is whether a sufficient identity of issue exists between the complaint before the division and the instant claim." Spoon v. Am. Agriculturalist, Inc., 478 N.Y.S.2d 174, 175 (App. Div. 1984).
Since the underlying facts of the claim Rosario brought before the NYSDHR are almost identical to those alleged in this case, the plaintiff's state law claims are barred pursuant to NYSHRL § 279(9) and NYCHRL § 8-502(a). Although the NYSDHR complaint alleged discrimination based on arrest record, marital status, and sex as opposed to discrimination based on national origin, the conduct underlying both claims is the same: Rosario contends he was suspended due to a discriminatory practice. By alleging that NYCDOE discriminated against him on the basis of his national origin instead of his arrest ...