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July 2018

New York Employment Team Obtains Full Dismissal of Discrimination and Retaliation Complaint in the Bronx

Gordon Rees Scully Mansukhani New York partner Mark Beckman and senior counsel Christopher Seacord secured dismissal, with prejudice, of the complaint filed by their client’s former Director of Finance in the Supreme Court of the State of New York, County of Bronx, which raised claims of discrimination and retaliation under the New York State Human Rights Law (“NYSHRL), the New York City Human Rights Law (NYCHRL), and the New York Labor Law (NYLL).

In her complaint, the plaintiff alleged that she was subjected to various adverse employment actions, including termination, because of her race and in retaliation for her alleged complaints of discrimination, in violation of the NYSHRL and NYCHRL. Further, the plaintiff alleged that those same adverse actions also constituted retaliation for her whistleblowing activity, in violation of NYLL § 740. In moving to dismiss the complaint, Gordon & Rees attorneys argued that the plaintiff had failed to state a claim under Section 740 because her alleged complaints, which were directed solely at purported financial improprieties, did not oppose conduct that presented a substantial and specific risk to public health and safety. Further, Gordon & Rees argued that, by asserting a claim under Section 740, the plaintiff had elected her remedy and, pursuant to the waiver provision of Section 740(7), waived her claims under the NYSHRL and NYCHRL. In response to the motion, the plaintiff withdrew her Section 740 claims and elected to pursue only her claims under the NYSHRL and NYCHRL. Addressing the waiver issue, the plaintiff cited to a handful of federal cases finding the waiver provision inapplicable to claims of discrimination.

In reply, Gordon & Rees attorneys argued that the cases relied upon by plaintiff were incorrectly decided and not controlling, pointing out that New York state courts unanimously had applied the waiver provision to claims under the NYSHRL and NYCHRL. The court agreed, and granted the motion to dismiss the complaint in its entirety.

Mark A. Beckman
Christopher A. Seacord



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