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This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Friday, June 17, 2016

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum


The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum
Nizamuddeen v New York City Tr. Auth., 2016 NY Slip Op 04418, Appellate Division, Second Department
Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, 

The New York City Transit Authority, [MTA] hired Arif Nizamuddeen as a bus operator subject to a probationary period of employment. The Nizamuddeen had notified MTA that in 2006 he had been diagnosed with non-Hodgkin's lymphoma, which was in remission, when he was selected for employment.

After numerous extensions of Nizamuddeen’s period of probation, in March 2014 MTA terminated the Nizamuddeen’s employment “due to his unsatisfactory attendance record after multiple episodes of absences from work.”

Nizamuddeen filed a complaint with the New York State Division of Human Rights [SDHR] alleging that MTA terminated his employment because of his disability in violation of Executive Law Article 15, New York State’s Human Rights Law. SDHR dismissed Nizamuddeen’s discrimination claim on the merits.*

Nizamuddeen subsequently commenced a CPLR Article 78 proceeding against MTA in the Supreme Court, asserting allegations essentially identical to those set out in the complaint he had filed with SDHR. Supreme Court denied Nizamuddeen’spetition and dismissed the proceeding on the ground that Nizamuddeen was precluded from maintaining the proceeding by the election of remedies provision in Executive Law §297(9). 

Nizamuddeen appealed the Supreme Court’s determination.

The Appellate Division sustained the Supreme Court’s ruling, explaining that Executive Law §297(9) provides that an individual claiming to be aggrieved by unlawful discrimination on the part of the employer may sue in court "unless such person had filed a complaint [with the SDHR]." Thus the individual’s filing of a complaint with SDHR precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts.* Nizamuddeen, said the Appellate Division, “is barred from maintaining this CPLR Article 78 proceeding by the election of remedies doctrine because the instant claims are based on the same allegedly discriminatory conduct asserted in [Nizamuddeen’s] complaint filed with [SDHR].”

The Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, provides another example of the application of the Doctrine of Election of Remedies.

The Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki brought a "Level 1" grievance in which he alleged that the district’s efforts to terminate him violated provisions set out in the controlling collective bargaining agreement and asserted that certain other contractual provisions regarding evaluations and observations were not adhered to. As relief, he sought an arbitration award directing the rescission of his termination. Both this and “the Level 2 grievance” were denied.

The Commissioner found that Nadolecki was attempting to raise the same issues in this appeal that he had raised in the contract grievance, rejecting his argument that because he only grieved school district’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues with respect to his "actual termination."  

The Commissioner explained that in his grievance Nadolecki’s claimed that the school district violated the provisions of the collective bargaining agreement and these was the same issues he presented in his appeal to the Commissioner. 

Accordingly, the Commissioner dismissed his appeal “for lack of jurisdiction,” noting that Nadolecki’sclaims “would be dismissed under the doctrine of election of remedies in any case.”  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner. 

* In contrast to SDHR’s dismissing Nizamuddeen’s complaint on the merits, had SDHR  dismissed his complaint for “administrate convenience” or had Nizamuddeen, prior to the hearing before the SDHR hearing officer, successfully requested that SDHR dismiss his complaint and annul his “election of remedies” to submit to the jurisdiction of SDHR, he could have pursued his Human Rights Law claim in a judicial forum.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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