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Selection of one of available alternative remedies provided by the State?s Human Right Law bars recourse to the other

Selection of one of available alternative remedies provided by the State?s Human Right Law bars recourse to the other
Tierney v Patchogue Fire Dept. Ambulance Co., Inc., 2009 NY Slip Op 50929(U), Decided on May 14, 2009, Supreme Court, Suffolk County, Judge Thomas F. Whelan, [This decision will not be published in the printed Official Reports.]

Penny A. Tierney was a member of the Patchogue Fire Department Ambulance. Disabled as a result of an on-the-job, Tierney subsequently informally requested reinstatement to active membership status. She was granted only "honorary" membership status in July 2005.

In April of 2008, Tierney filed a written request for full membership status with the Ambulance Company. When her request was denied, she filed a complaint with the New York State Division of Human Rights alleging that the Ambulance Company had discriminated against her because of her disability and sex. Tierney later filed a petition in Supreme Court pursuant to CPLR Article 78 objecting to the Ambulance Company?s decision.

The Ambulance Company asked the court to dismiss Tierney petition, contending that her action was barred by the election of remedies provision contained in §297(9) of the Executive Law (New York State?s Human Rights Law).

Tierney argued that her petition was not precluded by the election of remedies provision contained in §297(9) of the Executive Law because the allegations set out in the complaint filed with the Division of Human Rights ?differs from that alleged in this [court] proceeding.? Judge Whelan disagreed and dismissed her petition.

The court said that Executive Law, §297(9) provides that ?any person claiming to be aggrieved by an unlawful discriminatory practice has a cause of action for damages and such other remedies as may be appropriate, unless such person has filed a complaint with the State Division of Human Rights or with any like local commission and such complaint has not been withdrawn prior to being heard or dismissed by the Division on the grounds of administrative convenience.?

Thus, said Judge Whalen, the statute provides a clear election of mutually exclusive remedies: complainants may file an action or special proceeding in a court having jurisdiction seeking redress from those who have discriminated against them or they may file an administrative complaint with the appropriate administrative agency. They cannot do both and, further, they are bound to proceed in the forum they chose first.

If the statutory complaint sets out the same purportedly wrongful and discriminatory conduct, the statutory election of remedies provision will apply and bar a later commenced action predicated upon the same underlying wrongs, regardless of the labels attached to either the conduct or the remedy sought.

In this instance Tierney?s administrative complaint filed with the State Division of Human Rights charged the Ambulance Company with discriminatory practices due to her physical disabilities and her sex. She thereafter commenced a Article 78 proceeding alleging essentially the same unlawful conduct.

As to Tierney?s representation that her petition addressed other alleged wrongs, Judge Whelan pointed out that ?Paragraph 7 of [Tierney?s] petition ? incorporates the allegations set forth in the administrative complaint by reference and by attachment.?

Under the circumstances, said the court, the Ambulance Company is entitled to have its motion to dismiss Tierney?s petition granted.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50929.htm

Full post as published by New York Public Personnel Law on May 28, 2009 (boomark / email).