109 Misc. 2d 173 | N.Y. Sup. Ct. | 1979
OPINION OF THE COURT
Defendant makes this motion to dismiss the complaint upon the ground that it does not state a cause of action and that the court does not have jurisdiction of the subject matter of the action.
Plaintiff was formerly employed by defendant but resigned because of alleged discrimination against her. The action herein is maintained pursuant to article 15 of the Executive Law. Plaintiff alleges that she was denied promotions which were granted to Hispanics with less seniority and that she was discriminated against because she is a Caucasian and native of the United States.
Defendant contends (1) that the Executive Law was enacted to prevent discrimination against minority groups and does not apply to plaintiff and (2) that plaintiff filed a complaint with the United States Equal Employment Opportunity Commission which is still pending and which pre-empts this action.
We must not allow the law of our land to operate as a backlash to the majority of our people under the guise of affording equal rights to the minorities. As was aptly stated in the nationally publicized case of University of California Regents v Bakke (438 US 265, 289-290): “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” If it is not equal, it is not constitutional. The court will presume that the purpose was equality and the intent was constitutional. (Lighthouse Shores v Town of Islip, 41 NY2d 7; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150.)
Defendant’s second contention is equally untenable. Subdivision 9 of section 297 of the Executive Law allows an aggrieved person to maintain a cause of action in any court of appropriate jurisdiction unless a complaint has been filed with the State Division of Human Rights. Such a complaint has been filed herein but was dismissed upon the grounds of administrative convenience. The section
Although plaintiff herein did not wait 180 days after filing the Federal complaint to institute this action, her withdrawal of the complaint before the State agency, her request of the Federal commission of the right to sue after the expiration of 180 days, the grant of such permission by the commission and the continuation of the action thereafter, all spell her election to pursue her court action as authorized by Federal statute and sanctioned by United States Supreme Court determination. (US Code, tit 42, § 2000e; Occidental Life Ins. Co. v EEOC, supra.)
The motion to dismiss the complaint is therefore denied as to both of the grounds advanced by defendant.