Opinion
510891/15
04-21-2016
Herlecia Owens, Plaintiff(s), v. Starbucks Corporation d/b/a Starbucks Coffee Company and Evelyn Mercado, Defendant(s).
Attorneys for Plaintiff Robert D. Salaman, Esq Akin Law Group, PLLC 45 Broadway, Suitre 1420 New York, New York 10006 Attorneys for Defendants Estela Diaz, Esq. Akin Gump Strauss Haur & Feld, LLP One Bryant Park New York, NY 10036
Attorneys for Plaintiff Robert D. Salaman, Esq Akin Law Group, PLLC 45 Broadway, Suitre 1420 New York, New York 10006 Attorneys for Defendants Estela Diaz, Esq. Akin Gump Strauss Haur & Feld, LLP One Bryant Park New York, NY 10036 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of defendants Starbucks Corporation d/b/a Starbucks Coffee Company (hereinafter Starbucks) and Evelyn Mercado (hereinafter Mercado) (Starbucks and Mercado hereinafter jointly as the movants) filed on November 2, 2015, under motion sequence number one for an order pursuant to CPLR 3211 (a) dismissing the claims of discrimination based on plaintiff, Herlecia Owens' (hereinafter Owens) disability. - Notice of Motion Affirmation in Support - Exhibits A - C Memorandum of Law in opposition Reply Affirmation Exhibit A Reply Memorandum of Law
BACKGROUND
On September 4, 2015, Owens commenced the instant action for damages alleging discrimination based on the plaintiff's gender and disability by filing a summons and complaint with the Kings County Clerk's office (hereinafter the instant complaint).
By verified complaint dated January 9, 2013, Owens commenced a proceeding with the New York City Commission on Human Rights (hereinafter the Commission) against the Starbucks defendants and Omar Ventura (hereinafter Ventura) (the complaint brought before the commission will be hereinafter referred to as the commission complaint).
The instant complaint contains seventy-eight allegations of fact in support of four causes of action. In or about 2011, Owens alleges that while employed as a barista and shift supervisor for Starbucks she was subject to a hostile work environment created by her manager, Mercado. Owens alleges that Mercado would make remarks of a sexual nature to Owens and show her pictures of sexually explicit material. In or about 2012, Owen further alleges that she began treatments for her disability. Once Mercado was aware that Owens was undergoing treatments she began to make disparaging remarks about the efficacy of the treatments. Owens complained to human resources about the hostile work environment that Mercado was creating. After Owens complained she alleged that she was retaliated against by reduction in her work hours, poor performance reviews and ultimately being terminated from her position.
A barista refers to someone who makes and serves coffee and coffee drinks (such as cappuccino) to customers (Merriam-Webster [Note: online edition]).
The first cause of action alleges that the defendant engaged in unlawful discriminatory practice against the plaintiff by creating a hostile work environment due to plaintiff's gender and disability in violation of New York State Law Executive Law § 296. The second cause of action alleges that the defendants engaged in unlawful discriminatory practices in violation of executive Law § 296 (7) by retaliating against plaintiff for making a complaint against defendant's violations of New York State Executive Law. The third cause of action alleges that the defendants violated the New York City Administrative Code 8-107 [1] [a] by discharging her from employment based on her gender and disability. The fourth cause of action alleges a violation of the New York City Administrative Code 8-107 [1] [e] by retaliating against plaintiff for reporting the discrimination and hostile work environment.
The commission complaint contains twenty seven allegations of fact. The defendants in the commission complaint are Starbucks Coffee Co., d/b/a Starbucks Corporation, Evelyn Mercado, and Ventura . The commission complaint alleges that in or about February of 2013, Owens began a series of treatments for a disability. At that time she was supervised by Mercado. Mercado was aware of Owens' disability and treatments. Mercado made several disparaging remarks regarding the treatments i.e. that the treatments would not work, and that the company was being inconvenienced by the treatments. After Owens began her disability treatments Mercado also began to issue several unjustified "corrective action notices". Owens notified the human resources department regarding the comments and discriminatory treatment. After Owens reported the discriminatory actions of Mercado she alleges that she was retaliated against by Mercado and Ventura by receiving unwarranted corrective action notices and ultimately Owens was terminated by Ventura.
Ventura is a named defendant in the commission complaint but is not a named defendant in the instant complaint. However, the instant complaint contains allegations of fact regarding Ventura.
The instant motion seeks to dismiss the causes of action contained in the instant complaint based on discrimination and retaliation due to plaintiff's disability based on the election of remedies doctrine. The motion does not seek to dismiss the causes of action based on discrimination and retaliation on the basis of plaintiff's gender.
MOTION PAPERS
Defendants motion papers consist of a notice of motion, an affirmation of counsel in support of the motion and three annexed exhibits labeled A through C. Defendants also submit a memorandum of law. Exhibit A is the verified complaint. Exhibit B is the verified complaint of Owens v Starbucks Coffee Co., d/b/a Starbucks Corporation, Evelyn Mercado, and Omar Ventura brought before the Commission under Federal Charge Number 16F-2013-00062c. Exhibit C is a document on the letterhead of plaintiff's counsel dated September 4, 2015, which contains a request to the Commission to discontinue the pending proceedings and an affidavit by Owens seeking to discontinue her action in the Commission.
Plaintiff's opposition consists of an affirmation of counsel in support of the motion, a memorandum of law and one annexed exhibit labeled Exhibit A. Exhibit A contains documents described as emails between the plaintiff's attorney and the New York City Commission on Human Rights.
Defendants reply papers contain an affirmation of counsel, one annexed Exhibit labeled Exhibit A and a memorandum of law. Exhibit A contains the plaintiff's request to the Commission to discontinue the action.
LAW AND APPLICATION
Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has "no jurisdiction of the subject matter of the cause of action." In the New York state court system, the Supreme Court "is a court of general jurisdiction, and it is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed" (Wells Fargo Bank Minnesota, Nat. Ass'n v Mastropaolo, 42 AD3d 239 [2nd Dept 2007] see also McKinney's Const. Art. 6, § 7).
A court lacks subject matter jurisdiction when it lacks the competence to adjudicate a particular kind of controversy in the first place. "The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it" ( Wells Fargo Bank Minnesota, Nat. Ass'n v Mastropaolo, 42 AD3d 239 [2nd Dept 2007] citing Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718]).
Subject matter jurisdiction "refers to objections that are fundamental to the power of adjudication of a court.' Lack of jurisdiction' should not be used to mean merely that elements of a cause of action are absent,' but that the matter before the court was not the kind of matter on which the court had power to rule" (Garcia v GEICO, 130 AD3d 870 [2nd Dept 2015][internal citations omitted]).
It is undisputed that the plaintiff' instant complaint duplicates the commission complaint. Both complaints contain allegations of fact against the same parties during the same time period. When a party brings a claim before the commission the election of remedies doctrine applies, which prohibits bringing an action in another court except under certain specific situations (New York City Administrative Code § 8-502 (a); Emil v Thomas E. Dewey, 49 NY2d 968 [1980]; Brown v Wright, 226 AD2d 570 [2nd Dept 1996]. Furthermore, the election of remedies doctrine will prohibit a plaintiff from bringing the same action in court and will also prohibit an action that arises out of the same facts and merely alters certain elements such as adding a defendant or alters elements of damage, or changes the legal theory (Bhagalia v State of New York, 228 AD2d 882 [3rd Dept 1996] see also Craig-Oriol v Mount Sinai Hospital, 201 AD2d 449 [2nd Dept 1994]).
Upon first reflection it would appear that the plaintiff has elected her remedy of having the commission rule on the disability discrimination claims. However, there are several situations in which a litigant may be permitted to bring a cause of action in court even after filing a complaint with the commission. The Administrative Code § 8-502 (b) provides that if a party's complaint is dismissed for administrative convenience or on the grounds that such person's election of an administrative remedy is annulled then that party may bring a subsequent action in court. The Administrative Code § 8-113 contains a non-exhaustive list of reasons that the commission may dismiss the complaint under "administrative convenience". Dismissal of complaint for administrative convenience includes, but is not limited, to if a complainant is unable to be located, repeatedly fails to appear at mutually agreed upon appointments with commission personnel, fails to provide requested documentation, or to attend a hearing (Administrative Code § 8-113). The Commission may also dismiss the complaint based on administrative convenience if the complainant requests such dismissal, one hundred eighty days have elapsed since the filing of the complaint with the commission and the commission finds that the complaint has not been actively investigated, and that the respondent will not be unduly prejudiced thereby (Administrative Code § 8-113). The Administrative Code contains additional grounds for administrative dismissal that are not relevant to the instant motion.
The following is undisputed, Owens' commission complaint is duplicative of the instant complaint in regards to the disability discrimination claims. Owens has requested that the Commission administratively dismiss the action. The Commission has yet to make a determination regarding the dismissal. As provided for in the Administrative Code, the commission has many methods to dismiss the complaint based on administrative convenience. The commission may choose to dismiss the complaint for administrative reasons, may dismiss it based on the plaintiff's request or choose to adjudicate the matter. In the event the complaint is dismissed for administrative reasons then Owens is not prohibited from bringing the instant action. As such, the commission's decision may have an effect on the instant complaint and, therefore, the motion is premature.
CPLR 2201 provides that unless it is expressly prohibited, the court in which an action is pending may grant a stay of proceedings upon such terms as may be just. Furthermore, in appropriate circumstances, a court can issue a stay sua sponte, without a motion from a party (Supplementary Practice Commentaries by Patrick M. Connors, C2201:12 2015 citing Coburn v Coburn, 109 AD2d 984 [3rd Dept 1985] see also Danzig v Morgan, 123 AD3d 968 [2nd Dept 2014]).
In the interests of judicial economy and discretion the Court stays the instant action pursuant to CPLR 2201 until the commission makes a determination as to whether to dismiss the commission complaint. In the event that the Commission makes a determination either party may move by notice of motion to lift the stay and continue the proceedings with proof of same.
CONCLUSION
Defendants Starbucks Corporation d/b/a Starbucks Coffee Company and Evelyn Mercado motion pursuant to CPLR 3211 (a) to dismiss the claims of discrimination based on plaintiff, Herlecia Owens' disability is stayed.
The foregoing constitutes the decision and order of this Court. Enter HON. FRANCOIS A. RIVERA J.S.C.