This action is by plaintiff Sislyn Benjamin ("plaintiff" or "Ms. Benjamin"), a nurse, for damages and other related relief in connection with her discrimination and tort claims against her former employer, the New York City Department of Health ("NYCDOH"). Before the court is NYCDOH's pre-answer motion to dismiss plaintiff's complaint on the bases that this action is barred by: [1] the doctrine of election of remedies; [2] the statute of limitations; [3] res judicata and collateral estoppel; and [4] waiver. Plaintiff opposes the motion in its entirety.

By the time NYCDOH brought this motion, plaintiff already had an outstanding motion for entry of a default judgment against defendant because it had failed to appear or answer. Thus, plaintiff s original opposition to this motion to dismiss was that the court should first decide her CPLR § 3215 motion before deciding this motion pursuant to CPLR § 3211. By order dated April 26, 2007, this court denied the motion for default judgment and permitted plaintiff to defend the motion to dismiss on the merits.

The court's decision on the motion to dismiss follows.

Nature of Dispute

Ms. Benjamin was hired by the NYCDOH on April 21, 1994 as a Supervisor for Public Health Nurses. She was terminated on October 22, 1998. In this action plaintiff claims that she was discriminated against based upon her national origin and also her disabilities. Plaintiff further claims that she was retaliated against following complaints made by her about such discriminatory treatment.

In her complaint, plaintiff asserts five causes of action ("COA"). They are as follows: 1st COA - discrimination and retaliation based on national origin in violation of New York State Executive Law § 296 (1) (a); 2nd COA - discrimination and retaliation based on national origin in violation of NYC Administrative Code § 8-107(a); 3rd COA - discrimination and retaliation based on disability in violation of New York State Executive Law § 296 (1) (a); 4th COA - discrimination and retaliation based on disability in violation of NYC Administrative Code § 8-[*2]107(a); and 5th COA - intentional infliction of extreme emotional harm. Thus, Ms. Benjamin's 1st and 3rd causes of action are based upon alleged violations of state law ("State discrimination claims"), whereas her 2nd and 4th causes of action are based upon alleged violations of New York City Law ("City discrimination claims"). Plaintiff's 5th COA is based on common law tort.

In May 1997, prior to her termination, plaintiff filed complaints with both the Equal Employment Opportunity Commission ("EEOC") and New York City Commission on Human Rights ("NYCCHR" at times "the commission"). In each complaint, Ms. Benjamin charged that she was subjected to discriminatory behavior in violation of Section 8-107.1 (a) of the New York City Administrative code and 42 USC 2000e because of her color. By letter dated August 25, 1999, the EEOC notified Ms. Benjamin that it would not be taking action, but she had a right to bring her claims in court within 90 days.

The NYCCHR, however, actually investigated her allegations. Although plaintiff had only initially asserted claims of discrimination based upon her color, during the course of the investigation plaintiff presented information regarding claims of discrimination based upon disability as well. These additional claims of disability, identified as stress disorder, peptic ulcer and gastric disorder, were considered and ruled upon by the NYCCHR. On December 4, 1998, the NYCCHR concluded that there was no probable cause to find that the NYCDOH had discriminated against plaintiff either on the basis of her color or disability. It specifically found that the NYCDOH had taken legitimate disciplinary action taken against Ms. Benjamin her based upon "her substandard work performance and inappropriate behavior. . ." and that Ms. Benjamin was unable or unwilling to follow NYCDOH's policies and procedures. The commission concluded further that Ms. Benjamin's "nursing [judgment] and supervisory skills were deficient."

In the intervening time between her filing the complaint and the commission's decision, the plaintiff's employment was terminated on October 22, 1998.

Plaintiff administratively appealed the NYCCHR's decision which was upheld by the NYCCHR order of June 16, 1999. On November 1, 1999 plaintiff commenced an action in the United States District Court in the Southern District ("Federal action").

In her amended Federal complaint Ms. Benjamin asserted 13 causes of action, broadly categorized as follows: [1] discrimination based on national origin in violation of Federal law under 42 USC §§ 2000e-2(a) and 2000e-(c); [2] discrimination based on national origin in violation of State Law under Executive Law § 296 (1) (c); [3] discrimination based on national origin in violation of the laws of New York City under NYCAC § 8-107 (a); [4] discrimination based on disability in violation of Federal law under 42 USC 12112(a); [5] discrimination based on disability in violation of State Law under Executive Law §296(1); [6] discrimination based on disability in violation of the laws of New York City under NYCAC § 8-107 (c); and [7] intentional infliction of extreme emotional harm. Although by the time the Federal action was commenced she had been terminated from her job, plaintiff asserted no claim that she had been fired in retaliation for having filed a complaint with the NYCCHR.

By decision dated March 29, 2002, the presiding Federal judge ("Justice Swain") dismissed the causes of action relating to plaintiff's Title VII claim, as well as the State and City claims based on disability. The judge dismissed Ms. Benjamin's tort claim because plaintiff had failed to comply with the (90 day) notice requirements of NY General Municipal Law §§ 50 et seq which are a condition precedent to bringing suit against the City. The tort claim was also [*3]dismissed for failure to state a cause of action. Only three claims were left in the Federal action. In Justice Swain's later decision dated December 8, 2003, she dismissed the remaining three discrimination claims which were disability based (under the ADA), and based upon national origin under the State and City discrimination laws. In doing so, Justice Swain wrote that the State and City claims "arose from the same transaction as Plaintiff's [NYCCHR] complaint based on color . . ." and though now cast as being based upon "national origin," the court was deprived of jurisdiction to hear them because Ms. Benjamin had elected her remedies, and there had been a final adjudication of plaintiff's claims before the NYCCHR. Benjamin v. NYC Depart of Health et al., 2003 U.S. Dist Lexis 21973 (12/8/03). The Federal claims were dismissed based upon a separate legal basis.

In January 2004, plaintiff filed an appeal of both of Justice Swain's decisions dismissing her Federal action. Insofar as the State and City claims alleged, Ms. Benjamin only made arguments on appeal related to the dismissal of her claims based upon national origin.

While the appeal was pending, plaintiff commenced a prior action in the New York State Supreme Court ("prior state action") (Index no. 109368/04). In that prior state action, plaintiff alleged four (4) causes of action for discrimination. The facts alleged in the complaint were similar to some of those asserted in the complaint to the NYCCHR. For the first time, however, Ms. Benjamin claimed that she had suffered an adverse employment action "after filing her charge of discrimination . . ." with the NYCCHR. Her 5th cause of action was for intentional infliction of emotional distress.

The NYCDOH moved to dismiss the prior state action on the basis that plaintiff was barred by the doctrines of res judicata and/or collateral estoppel from relitigating the same claims that NYCCHR had dismissed after an investigation, and had also been dismissed in Federal court based upon her having elected her remedies.

Before the Circuit Court of Appeals decided Ms. Benjamin's appeal, but following the motion to dismiss the prior state action, the parties entered in a two-attorney stipulation dated March 18, 2005 which provides as follows:

"It is hereby stipulated and agreed that this action is withdrawn and discontinued with prejudice for all purposes without costs or attorney's fees to either party."

Subsequently, on July 25, 2005, the Circuit Court of Appeals issued its decision on the appeal. The court affirmed Justice Swain's order dismissing plaintiff's Title VII claims. It agreed with the district court that plaintiff's race discrimination claim was barred in the Federal court because she had failed to raise the issue before the EEOC.

The Circuit Court of Appeals, however, found that the District Court had improperly retained jurisdiction over plaintiff's State and City national origin claims, and it should have not dismissed them "with prejudice," because it was for the State Court to decide whether those claims were barred. The order dismissing the State and City discrimination claims "with prejudice" was vacated with instructions to the District Court to dismiss the City and State claims "without prejudice," which the District Court did in an order dated August 30, 2005.

NYCDOH now argues that the present action is barred on a number of bases, including res judicata, election of remedies, waiver, and the statue of limitations.

Plaintiff contends that there is no waiver because she only agreed to withdraw the prior state action when she realized it had been brought prematurely. Thus, Ms. Benjamin contends [*4]that she agreed to withdraw the prior State action complaint with prejudice, but with the understanding that the parties would be bound by the Circuit Court of Appeal's decision. Ms. Benjamin contends further that the present action is not barred by the election of remedies, res judicata, or collateral estoppel because when she filed her complaint with the NYCCHR she had not yet been terminated from her employment (in retaliation), therefore that claim was not before the commission to decide. Ms. Benjamin urges the court to consider that her termination in retaliation claims have never been heard on the merits and it would be unfair for them to be dismissed simply because the stipulation does not so provide.

The court first deals with the arguments related to the dismissal of the cause of action for intentional infliction of emotional harm because it presents a different and simpler analysis than that related to the statutory discrimination claims. As set forth more fully below, this cause of action is dismissed on grounds of res judicata and alternatively, because the claim otherwise lacks legal support.

Res Judicata is a doctrine designed to put an end to a matter once it is duly decided. Lodal Inc. v. Home Ins. Co., 309 AD2d 634 (1st dept. 2003). It operates to preclude not only matters that have been actually decided, but those claims based on the same facts that could have been raised. It bars future litigation between the same parties on a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in the prior proceeding. Hodes v. Axelrod, 70 NY2d 364 (1987). Thus, there must have been a full and fair opportunity to contest the decision now said to be controlling, and that the decisive issue was necessarily decided in the prior action against the party or those in privity, whether in a different court, or even on different causes of action. Ryan v. New York Telephone Co., 62 NY2d 494 (1984). To apply the doctrine, there has to be an identity of parties and a final adjudication made on the merits. Siegel. New York Practice, Res Judicata §444 et seq (4th ed. 2005).

In the Federal action Ms. Benjamin made same claim against the same (identical) parties to recover damages based upon allegations of intentional infliction of emotional distress. The claim was dismissed by Justice Swain, on the merits, for two different reasons. First, Justice Swain found that the claim was barred by plaintiff's failure to timely file a Notice of Claim with the municipality. NY Gen Mun Law § 50-e et seq. Second, Justice Swain held that the facts, as alleged by plaintiff, and even accepting them as true, were legally insufficient to state a cause of action for intentional infliction of emotional distress. Benjamin v. NYCDOH, 2002 US Dist. Lexis 5446 (March 29, 2005).

Although plaintiff filed a Notice of Appeal of Justice Swain's order, Ms. Benjamin she did not raise any arguments before the Circuit Court of Appeals regarding this particular cause of action. Thus, the Federal court determination, dismissing the cause of action, for intentional infliction of emotional distress, is a final adjudication of the matter.

In any event, even if the Federal action were not res judicata, the court otherwise agrees with Justice Swain's ruling that the intentional infliction of emotional distress claim is not a viable one, not only because Ms. Benjamin plaintiff failed to timely file a Notice of Claim, but the facts as alleged, even if accepted as true, do not support such a tort. Therefore, defendants' motion, to dismiss the intentional infliction of emotional distress claim is granted, and that cause [*5]of action is dismissed.

B. State and City Discrimination Claims

1. Election of Remedies

NYCDOH argues that the State and City discrimination claims are barred by the election of remedies doctrine. This doctrine is embodied in both The State Executive Law and the City Administrative Code. The applicable statutes provide as follows:

Executive Law § 297(9):

"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction...unless such person had filed a complaint hereunder... with any local commission on human rights."

NYCCA §8-502 :

"Any person claiming to have been aggrieved by an unlawful discriminatory practice ...shall have a cause of action in any court of competent jurisdiction...unless such person has filed a complaint with the city commission on human rights or the state division of human rights with respect to such unlawful discriminatory practice. "

In general, a litigant claiming discrimination has the right to file a discrimination claim either in court or with an appropriate administrative agency. If the claim is filed with the agency, then the court is deprived of jurisdiction to hear the matter. Hirsch v. Morgan Stanley & Co., Inc., 239 AD2d 466 (2nd dept. 1997).

Plaintiff appears to concede, and it otherwise clear, that to the extent claims were actually raised at the NYCCHR she cannot pursue them now in this court either as a violation of State or City discrimination laws. Ms. Benjamin claims, however, that her NYCCHR complaint only involved claims of race discrimination, but she did not assert (nor did it involve) claims based upon national origin or retaliation, as alleged here, which are different.

A litigant cannot split claims and assert some in court and others before an agency if they all arise out of the same course of conduct. Craig-Oriol v. Mt. Sinai Hospital, 201 AD2d 449 (2nd dept. 1994); Carroll v. U.P.S., 225 F.3d 645 (C.A.2 NY 2000). Thus, when a party elects an administrative remedy, by statute s/he is precluded from commencing an action in court based on the same incident. Emil v. Dewey, 49 NY2d 968, 969 (1980) (citations omitted). In deciding whether a subsequent court action can proceed, or is barred by the doctrine of the election of remedies, the court should consider whether the claims it is being asked to address are based on substantially the same facts. Craig-Oriol v. Mt. Sinai, supra. If substantially the same facts are involved, then the doctrine of election of remedies will bar any subsequent court proceedings. The facts need not be perfectly identical, and merely adding some additional facts and/or re-labeling the claim will not prevent the application of the doctrine of election of remedies. Bhagalia v. State of New York, 228 AD2d 882 (3rd dept. 1996); Spoon v. American Agriculturalist, 103 AD2d 929 (3rd dept. 1984); also: Low v. Gibbs & Hill, Inc., 92 AD2d 467 (1st dept 1983).

In comparing the instant complaint to the NYCCHR complaint and the commission's determination, the court concludes that the claims asserted herein are substantially similar to warrant the application of the doctrine of the election of remedies. The allegations at bar are based upon a series of events that transpired within the exact same time period. Moreover, the [*6]NYCCHR found that plaintiff's inadequate job performance supported the disciplinary complaints filed against her. While claims of discrimination based on race may differ from those based upon national origin, or even color, the NYCCHR's conclusion, that the NYCDOH's disciplinary actions were bona fide and not pretextual precludes any claim of discrimination on any basis for time period involved. Peterkin v. Episcopal Social Services of New York, 23 AD3d 306 (1st dept. 2005).

The same analysis applies to plaintiff's claims of retaliation that preceded her separation from employment . To the extent plaintiff now claims that acts taken prior to the filing of the NYCCHR complaint constituted retaliation, the were previously considered by the NYCCHR and decided. It is of no moment that these claims were referred to in the NYCCHR complaint as "harassment." The NYCCHR's conclusion, that such disciplinary actions were bona fide, and not discriminatory, puts an end to the matter.

The NYCCHR, however, did not consider those claims of retaliation based upon the filing of the complaint before it, to wit: Ms. Benjamin's termination from employment. These later claimed acts of retaliation could not have been fully considered by the NYCCHR because they took place only after Ms. Benjamin filed her complaint. The court rejects the NYCDOH's argument that because the plaintiff could have, and actually did, put forth additional claims before the NYCCHR after she filed the initial complaint, she should be precluded from litigating the termination in retaliation claim now.Ms. Benjamin's retaliatory termination claims are not barred by the doctrine of election of remedies, and this is not a reason to dismiss such claims. Carroll v. United Parcel Service, 225 F3d 645 (Table); 2000 WL 1185583 (2nd Cir. NY).

The NYCDOH also argues that the res judicata effect of the commission's decision bars these claims as well. Since the analysis of these issues is closely aligned with the analysis on the election of remedies and it leads the court to same decision, the court makes no separate analysis of these issues or the arguments raised.

2.Waiver

The NYCDOH argues that the stipulation of discontinuance "with prejudice" in the prior state action is a full waiver of the right to bring this new action on any basis, whatsoever. Since the only claim asserted by plaintiff that survives the application of the doctrine of election of remedies is that of retaliatory termination of employment, the court considers the argument of waiver only with regard to that claim.

Generally a stipulation of discontinuance "with prejudice" raises a presumption that it will be given res judicata effect in a future litigation on the same cause of action. North Shore -Long Island Jewish health System, Inc. v. Aetna US health Care, Inc., 27 AD3d 439 (2nd dept. 2006). The language "with prejudice," however, is narrowly interpreted when the interests of justice or particular equities involved warrant such an approach. Van Hof v. Town of Warwick, 249 AD2d 382 (2nd dept., 1998). A salient consideration is whether there was any determination on the merits. Further consideration is whether the stipulation was part of an overall settlement in which plaintiff was given consideration in exchange for giving up her claim. Ayala v. Gerald J. Picasso, Inc. 01-Civ. 5971 (SDNY).

Even if the court accepts plaintiff's claims, that the stipulation of discontinuance in the prior state action was intended to leave open the issues then pending before the Circuit Court of Appeal, Ms. Benjamin's complaint would not withstand defendant's motion to dismiss.

The plaintiff, for the first time, raised a claim that she had been fired in retaliation for [*7]having filed a discrimination complaint with the NYCCHR in that prior state action. Totem Taxi, Inc. v. NYS Human Rights Appeal Bd., 65 NY2d 300 (1985). The claim had never been raised in the Federal action. Consequently, the arguments before the Circuit Court of Appeals could not have, and did not, address any retaliatory termination claim. Thus, assuming plaintiff intended to retain her claims before the Circuit Court of Appeals when she signed a stipulation of discontinuance with prejudice, such claims did not include retaliatory termination. The only State and City claims before the Circuit Court of Appeals were discrimination based on national origin.

Any argument by Ms. Benjamin, that her retaliation claim is part of or subsumed within her national origin claims, is rejected as inapposite with the prevailing law. A claim for retaliatory termination is a separate and distinct cause of action from a race, color or national origin based claim. Modiano v. Elliman, 262 AD2d 223 (1 Dept. 1999). This is consistent with the conceptual differences in discrimination based upon "race" or "color" or "national origin." See: Alonzo v. Chase Manhattan Bank, N.A., 25 F Supp 2d 455 (SDNY 1998). In fact, such retaliation claims routinely arise in other disparate treatment situations where race/color/national origin are not an issue at all, but other impermissible factors, such as gender or age, are present.

Having discontinued her prior state action with prejudice, plaintiff is barred from bringing this new action for retaliatory termination. Ms. Benjamin's remaining claims on this theory must be dismissed.

3. Statute of limitations

NYCDOH argues that the State and City discrimination claims are all barred by the applicable statutes of limitations, while plaintiff claims that under CPLR § 205 she timely brought this action. CPLR § 205 (a) permits (with exceptions) a plaintiff to commence a new action within six (6) months of an action terminated "without prejudice" based upon the "same transaction or occurrence or series of transactions or occurrences" as the terminated action. Under the facts of this case, CPLR § 205 (a) could only apply to the revived claims of discrimination based on national origin following the Circuit Court of Appeals' decision. All other claims would not be entitled the extended statute of limitations and would be barred. Since the national origin claim is otherwise barred by the election of remedies, the entire complaint must be dismissed.

To recapitulate and summarize the court's ruling, the cause of action for intentional infliction of emotional distress is dismissed because it is barred by principles of res judicata and otherwise on the merits. The court further finds that the pre-employment termination State and City discrimination claims are barred by the application of the doctrine of election of remedies. The retaliatory employment termination claim is barred because Ms. Benjamin waived it when she discontinued the prior state action, with prejudice.

In accordance herewith,

It is hereby:

ORDERED that defendant's; motion to dismiss the complaint is granted in its entirety; and it is further

ORDERED that the Clerk shall enter judgment in favor of the defendant New York City [*8]Department of Health, against plaintiff Sislyn Benjamin, dismissing the complaint in its entirety; and it is further

ORDERED that any requested relief not expressly addressed herein in denied; and it is further

ORDERED that this constitutes the decision and order of the court.

Dated:New York, New York

October 23, 2007So Ordered:

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J.G.J.S.C.