U.S. DISTRICT COURT, WDNY
Thomas v. American Red Cross, et al
Background: The plaintiff, a black male, sued his former employer and supervisors for discrimination on the basis of his race and gender. The plaintiff also claimed his employer and supervisors retaliated against him when he had made formal complaints of the discrimination. The defendants moved to dismiss the plaintiff’s amended summons with notice. The plaintiff cross-moved to remand the action to state court or, in the alternative, file a proposed complaint in lieu of the amended summons with notice.
Ruling: The district court denied the defendant’s motion as moot as the plaintiff conceded at oral argument that punitive damages could not be recovered in a claim under the Executive Law § 296. Moreover, the defendant conceded at oral argument that absent the Title VII claim, the plaintiff’s proposed complaint was sufficient to survive dismissal. The court denied the plaintiff’s request to remand, but granted the plaintiff’s motion to file the complaint in lieu of the amended summons.
Michael Cobbs of Brown & Hutchinson for the plaintiff; Linda T. Prestegaard of Phillips Lytle LLP and Lucretia C. Clemons and Rebecca Lynn Massimini of Ballard Spahr LLP for the defendants