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Peter Chang v. City of New York Department For the Aging

June 14, 2012

PETER CHANG, PLAINTIFF,
v.
CITY OF NEW YORK DEPARTMENT FOR THE AGING,
DEFENDANT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

ORDER ADOPTING REPORT AND RECOMMENDATION

On October 6, 2011, pro sePlaintiff, Peter Chang ("Chang"), an accountant formerly employed by Defendant the New York City Department for the Aging (the "Agency"), filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. ("ADEA"), 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"). Chang alleges discrimination on the basis of his race and age.

On December 29, 2011, the Agency moved to dismiss Chang's Title VII claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Agency argues that Chang failed to allege a plausible claim of employment discrimination under federal law, and that Chang's state and local claims are barred by Chang's election of remedies. On April 10, 2012, Magistrate Judge James L. Cott issued a Report and Recommendation ("R&R") recommending that the Court grant the Agency's motion in its entirety. For the reasons set forth below, the Court adopts the R&R in full and grants the Agency's motion to dismiss the Complaint.

USDC SDNY

ELECTRONICALLY FILED

DOC #:

BACKGROUND*fn1

A. Facts

In 1996, Chang was hired by the Agency as an accountant. On August 19, 2010, Chang received a negative evaluation from his supervisor, Jean Pierre, the Agency's Director of Contract Accounting. Chang appealed his evaluation, but the appeal was rejected, and Chang filed a second appeal.

On September 22, 2010, Chang received a "Notice and Statement of Charges" (the "Notice") from the Director of Human Resources at the Agency. The Notice criticized Chang for allegedly violating the Agency's code of conduct. Chang challenged the Notice, contending that the charges "related [to a] minor mistake that had been corrected." On October 8, 2010, the Agency informed Chang that as a result of these charges, he was to be suspended without pay for five days. Chang appealed this decision, but the suspension was never executed because Chang resigned from the Agency on December 24, 2010, before any final decision had been made on his appeal. Chang claims he resigned due to "constant harassment [which] was impacting [his] health negatively."

B. Procedural History

On March 29, 2011, Chang filed a complaint with the New York State Division of Human Rights ("NYSDHR"), alleging that the Agency had discriminated against him on the basis of his race and age. On May, 31, 2011, after an investigation, the NYSDHR issued a "no probable cause" determination with respect to Chang's complaint. Specifically, the NYSDHR found that Chang's retaliation charges against the Agency were "not based upon protected activity," that his "voluntary resignation does not bear any of the marks of a constructive discharge[,]" and that his complaint was dismissed "[b]ased on the lack of evidence of discrimination." On July 8, 2011, the United States Equal Employment Opportunity Commission ("EEOC") issued a right to sue notice to Chang, advising that it had "adopted the findings of the [NYSDHR] that investigated the charge."

On October 6, 2011, Chang filed this action alleging that the Agency discriminated against him based on his race and age. On December 29, 2011, the Agency moved to dismiss Chang's Title VII claims for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The Agency also argues that Chang's state and local claims are barred by Chang's election of remedies. In response, Chang acknowledges that he resigned before any final decision was made on the proposed five-day ...


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