Samuel Small, Plaintiff, v. MTA JOHN DOE JANE DOE MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY MABSTOA (2026)

This case arises from disciplinary action taken against plaintiff, Samuel Small. Small was employed as a transit support coordinator for over 30 years by defendant Manhattan and Bronx Surface Transit Operating Authority. For 10 of those years, he was a supervisor.

Plaintiff alleges that in 2019, after he filed complaints about workplace misconduct and unequal treatment, defendants began issuing unwarranted disciplinary charges against him; revoked his vehicle privileges in response to plaintiff's complaint against them; reprimanded him for trivial or fabricated offenses; failed to approve vacation and benefit requests; delayed or denied health-insurance coverage after his demotion; and disparately disciplined him. (See NYSCEF No. 16 at ¶ 9 [amended complaint].)

In 2022, the Authority brought a disciplinary action against plaintiff for misconduct, ethics violations (romantic relationships with subordinates), and misuse of Authority property. As required by the collective bargaining agreement (CBA) between the Authority and plaintiff's union, the matter went to binding arbitration. On February 8, 2023, the arbitrator held that plaintiff could not continue in his position as supervisor and that he should be demoted to a non-supervisory position, "along with the notice that any future claims against him of misconduct relating to his interaction with women in the workplace may subject him to discharge." (NYSCEF No. 24 at 16 [arbitration decision].)

Plaintiff did not appeal the arbitration determination. Instead, on March 16, 2023, plaintiff filed a New York State Division of Human Rights complaint for discrimination and retaliation based on the disciplinary action. (See NYSCEF No. 23 at 3 [pdf pagination] [Division of Human Rights decision] ["The Complainant submits his administrative filing to the Division in order to take issue with the outcome of arbitration hearing which resulted in his demotion to a non-supervisory position; as well as his belief that such an outcome was based on evidence, or the lack thereof, which he contends failed to support the disciplinary action to which he was ultimately subject."].) The Division of Human Rights found that there was "NO PROBABLE CAUSE to believe that [non-party New York City Transit Authority] has engaged in or is engaging in the unlawful discriminatory practice complained of." (NYSCEF No. 23 at 2.)

Further, the Division of Human Rights took no position on the arbitration but "found no nexus to exist" between the authority's reasons for disciplining plaintiff (inappropriate relationships with subordinates) and plaintiff's discrimination accusations against the Authority. (NYSCEF No. 23 at 3.) Plaintiff never appealed that decision.

In August 2024, plaintiff brought this action against the Authority and defendant Metropolitan Transit Authority (MTA) based on the alleged discriminatory and retaliatory conduct. MTA and the Authority now move under CPLR 3211 (a) (1), (2), (5), and (7) to dismiss the complaint. The motion is granted in part and denied in part.

DISCUSSION

I. Defendant MTA

Defendants argue that MTA should be dismissed from the action because plaintiff is not employed by MTA. (NYSCEF No. 27 at 2 n 1.) Defendants say that plaintiff is employed by, and the record reflects the involvement of, the Authority and its statutory parent, nonparty New York City Transit Authority (NYC Transit). (See NYSCEF No. 31 at 9.) Plaintiff argues that his pleadings and papers rely on MTA-wide policies and employment infrastructure, leading to "plausible inference that the MTA exercised control over at least some of the challenged employment practices and decision making." (NYSCEF No. 30 at 9-10.)

The branch of defendants' motion to dismiss MTA from this action is granted. The underlying disciplinary proceedings and Division of Human Rights complaint named NYC Transit as a party. Although MTA-wide policies might have been implicated in those proceedings, plaintiff has not alleged that the MTA itself committed any action against him.

II. Election of Remedies—NYSHRL and NYCHRL Claims (Causes of Action Five, Six, and Ten)

Defendants move to dismiss plaintiff's claims for retaliation and hostile work environment under the NYS Human Rights Law (Executive Law § 290 et seq.) and under NYC Human Rights Law (Admin. Code § 8-101 et seq.) under the election-of-remedies doctrine. This branch of the motion is granted.

Executive Law § 297 (9) provides that "any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, . . . unless such person had filed a complaint hereunder or with any local commission on human rights." Under this language, if a party files a complaint with the State Division of Human Rights, that party is precluded from suing on that claim in court. (See Barr v BJ's Wholesale Club, Inc., 62 AD3d 820, 821 [2d Dept 2009] ["[A] person who has filed an administrative complaint with the New York State Division of Human Rights . . . or a local commission on human rights regarding discrimination is thereby deprived of his or her judicial cause of action."].)

The NYCHRL imposes this same election-of-remedies requirement. Under the NYCHRL, "any person claiming to be a person aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction for damages . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice or act of discriminatory harassment or violence." (NYC Admin. Code § 8-502 [a]; see Cornelius v Moody's Inv'rs C.I.R., Inc., 2024 WL 730361, *6 [Sup Ct, NY County 2024], affd sub nom 233 AD3d 578 [1st Dept 2024].)

As discussed above, plaintiff alleges that, among other things, after he filed complaints about workplace misconduct and unequal treatment in 2019, defendants began issuing unwarranted disciplinary charges against him and disparately disciplined him. (See NYSCEF No. 16 at ¶ 9 [amended complaint].) Likewise, in his 2023 Division of Human Rights complaint, plaintiff alleged that NYC Transit (respondent's parent entity) charged him with bribery, sexual harassment, harassment, and discrimination as a result of a 2019 complaint he filed against one of NYC Transit's department heads. (See NYSCEF No. 23 at 2-3.)

Defendants argue that plaintiff's fifth, sixth, and tenth causes of action arise from the same alleged discrimination that plaintiff raised (unsuccessfully) before the Division of Human Rights. Therefore, defendants contend, those claims are subject to dismissal under the election-of-remedies doctrine.

Plaintiff argues that the election-of-remedies doctrine applies only to the claims he placed before the Division of Human Rights: the "arbitration/demotion-related dispute." (NYSCEF No. 30 at 3.) Plaintiff contends that his complaint includes allegations in 2024 about retaliation and adverse action, that have not been brought before the Division of Human Rights. (See id.) Plaintiff also argues that the election of remedies doctrine cannot justify dismissal of non-HRL claims. (See id. at 4.)

This court agrees that the election-of-remedies doctrine applies to plaintiff's discrimination and hostile-work-environment claims. Plaintiff's sole 2024 allegation is that after he underwent disciplinary action, he was reassigned to a less favorable shift and received "only partial backpay in January 2024." (NYSCEF No. 16 at ¶ 12 [amended complaint].) And this claim is "based on the same continuing allegedly discriminatory underlying conduct asserted" before the Division of Human Rights. (Benjamin v New York City Dept. of Health, 57 AD3d 403, 404 [1st Dept 2008].)

Plaintiff's NYSHRL and NYCHRL retaliation and hostile-work-environment claims (counts five, six, and ten) are barred by the doctrine of remedies. The court does not reach defendants' contention that those claims are time-barred or fail to state a cause of action.¹

III. CBA and Breach-of-Contract, Unjust-Enrichment, Fraud, and Negligent-Misrepresentation Claims

Defendants move to dismiss plaintiff's unjust enrichment, breach of contract, fraud, and negligent misrepresentation claims as having been brought in the wrong forum.² Defendants argue that plaintiff may pursue those claims only through the CBA grievance procedures, which culminate in binding arbitration, and that plaintiff did not do so. (See NYSCEF No. 27 at 14.)

Defendants say that plaintiff did not do so. Plaintiff, on the other hand, argues that defendants have not shown that plaintiff's claims would be governed by the CBA. (See NYSCEF No. 30 at 5-6.)

The CBA provides that contract interpretation grievances—defined as issues arising from noncompliance with the CBA (and policy memorandums)—must be pursued through the grievance procedures. (See NYSCEF No. 25 at 10.) Plaintiff's allegations are that defendants breached the CBA (among other agreements) by failing to pay retroactive wages, to provide him continuous health coverage, and by discriminatorily applying disciplinary measures against him. (See NYSCEF No. 16 at ¶¶ 17-18.) Plaintiff further "alleges that defendants knowingly made false and misleading representations that Plaintiff's pay, benefits, and seniority would remain unaffected by administrative actions" (NYSCEF No. 16 at 6; see also id. at 7.)

Plaintiff's contract claim must go through the CBA grievance procedures.³ The CBA provides that contract-interpretation grievances—defined as complaints about noncompliance with or misinterpretation of the CBA or other policies (see NYSCEF No. 25 at 33)—must be pursued through the grievance procedures. The unjust-enrichment claim must also be dismissed, as plaintiff concedes that his claims arise from the CBA and other policy memorandums.

On the other hand, plaintiff's claims for fraud and negligent misrepresentation are not necessarily barred by the CBA. As stated above, the CBA grievance procedure applies to contract interpretation grievances. But the CBA's grievance procedure does not, on its face, apply to tort claims. Defendants do not explain how resolving tort claims involve noncompliance or misinterpretation of the CBA nor how tort claims are otherwise encompassed by the CBA.

Accordingly, it is

ORDERED that the branch of defendants' motion to dismiss defendant MTA from this action is granted (see CPLR 3211 [a] [7]); and MTA is dismissed from this action; and it is further

ORDERED that the branch of defendants' motion to dismiss plaintiff's NYSHRL and NYCHRL claims for retaliation and hostile work environment (fifth, sixth, and tenth causes of action) as precluded by the election-of-remedies doctrine is granted (see CPLR 3211 [a] [7]); and it is further

ORDERED that the branch of defendants' motion to dismiss plaintiff's breach-of-contract and unjust-enrichment claims (first and second causes of action) is granted (see CPLR 3211 [a] [1]); and it is further

ORDERED that the branch of defendants' motion to dismiss the remainder of plaintiff's claims is denied, and those claims are severed and shall continue; and it is further

ORDERED that defendants shall serve notice of entry on plaintiff; and shall serve notice of entry on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 6/23/2026

FOOTNOTES

1.   Plaintiff argues that each of his claims is sufficiently pleaded but that if the court concludes otherwise, plaintiff should be afforded an opportunity to amend his complaint. (See NYSCEF No. 30 at 7.) Plaintiff cannot amend his complaint to state valid discrimination, hostile-work-environment, breach-of-contract, and unjust-enrichment claims in light of his complaint to the Division of Human Rights and the grievance procedures of the CBA.

2.   On reply defendants make arguments to dismiss plaintiff's claims for intentional and negligent infliction of emotional distress; breach of implied covenant of-good faith and fair dealing; and defamation. (See NYSCEF No. 31 at 7-8.) Plaintiff did not offer grounds to dismiss those claims in its opening papers. And the court declines to consider those arguments for the first time on reply.

3.   Defendants argue that plaintiff has already raised his pay grievances against NYC Transit before the New York Public Employment Relations Board (PERB), which has exclusive jurisdiction over those claims. (See Civil Service Law § 205 [5] [d] [exclusive-jurisdiction provision].) Plaintiff filed two PERB charges, one in 2024 and one in 2025. (See NYSCEF No. 26.) The 2025 PERB charge does not detail plaintiff's allegations against NYC Transit but refers back to the 2024 charge. (See id.) On the 2024 charge, plaintiff alleged that he was not paid certain retroactive and longevity payments. (See id. at 3 [pdf pagination].) Now, in his complaint, plaintiff alleges that defendants breached employment agreements, including the CBA, by not paying retroactive wages and other benefits. (NYSCEF No. 16 at ¶¶ 17-18.) The question of those payments is therefore governed by the CBA but also remains before PERB. Assuming that PERB has jurisdiction over those claims, this court would lack jurisdiction to adjudicate them.

Gerald Lebovits, J.