In Sciddurlo v. Financial Indus. Regulatory Auth., 2016 NY Slip Op 08061 (App. Div. 2nd Dept. Nov. 30, 2016), the court reversed the lower court’s dismissal of plaintiff’s age discrimination claims asserted under the New York State and New York City Human Rights Laws.
Specifically, it held that the New York whistleblower statute’s waiver provision, New York Labor Law § 740(7), did not bar his subsequent age discrimination claim.
That section provides:
Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.
In reaching it conclusion that this provision did not bar plaintiff’s claims, the court explained:
The plaintiff commenced this action alleging, inter alia, that the defendant, his employer, discriminated against him due to his age in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107. In a prior action against the defendant, the plaintiff had alleged retaliation in his employment in violation of Labor Law § 740 based on his threatened disclosure of his employer’s alleged circumvention of regulations promulgated by the Securities and Exchange Commission. The prior action was dismissed by the United States District Court for the Southern District of New York (Hellerstein, J.) for lack of subject matter jurisdiction, without prejudice to the plaintiff’s nonfederal claims should they be re-alleged in state court. The Supreme Court determined that the plaintiff’s assertion of a whistleblower cause of action in federal court in the prior action barred the causes of action asserted in the present action, and granted the defendant’s motion to dismiss the instant complaint. We reverse the order insofar as appealed from. Contrary to the defendant’s contention, the waiver provision of Labor Law § 740(7) does not bar the plaintiff’s age discrimination claims in this action. Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was to dismiss the causes of action alleging discrimination in employment on the basis of age in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107.