# Barker v. Aramark Uniform & Careers Apparel LLC

> District Court, E.D. New York · September 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10304918

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
RONALD BARKER,

Plaintiff,
MEMORANDUM & ORDER
- against - 19-CV-2710 (PKC) (SMG)

ARAMARK UNIFORM & CAREER
APPAREL, LLC,

Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Ronald Barker, proceeding pro se, brings this action against his former employer,
Defendant Aramark Uniform & Career Apparel, LLC (“Aramark”), alleging violations of 42
U.S.C. § 1981, 42 U.S.C. §§ 2000e et seq. (“Title VII”), New York State Executive Law §§ 296
et seq. (“NYSHRL”), and the New York City Administrative Code §§ 8-101 et seq. and § 8-
107(15) (“NYCHRL”). Before the Court is Defendant’s motion for summary judgment. For the
reasons discussed below, the Court grants in part and denies in part the motion for summary
judgment, and grants the parties leave to take limited discovery.
BACKGROUND1
I. Plaintiff’s Experience at Aramark
Plaintiff began working for Defendant, an industrial laundry and uniform rental business,
in 2015 as a “route salesman/ truck driver.” (Complaint (“Compl.”), Dkt. 1, at ECF2 12, 71.)3 In
the summer of 2016, Defendant restructured its drivers’ routes. (Id. at ECF 69.) According to
Plaintiff, the purpose of the restructuring was to “level the playing field” because white drivers

were at the time being paid more than Black drivers. (Id. at ECF 71.) The white drivers protested
the restructuring and filed an (ultimately unsuccessful) grievance with the Laundry, Distribution
& Food Service Joint Board, Workers United Union (the “Union”), which has a collective
bargaining agreement (“CBA”) with Defendant. (Id. at ECF 14; see also id. at ECF 45.) Plaintiff
also alleges that his co-workers were upset that he, a Black man, was assigned stops on Long
Island. (Id. at ECF 71.)

1 Because of the limited nature of this summary judgment motion, no discovery has yet
been taken and the parties have not yet submitted Rule 56.1 statements. The Court cites to the
complaint to establish certain background information not material to this motion, but notes that
the allegations described therein remain allegations rather than undisputed facts.

2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.

3 Plaintiff’s complaint in this action consists of the Court’s standard pro se complaint form
and 228 pages of attached exhibits, which include, inter alia, Plaintiff’s original New York State
Division of Human Rights (“NYSDHR”) complaint and the NYSDHR’s Final Investigation
Report and Basis of Determination. Plaintiff did not include a separate statement of facts with his
complaint, but instead wrote “see attached files from New York State Division of Human Rights.”
(See Compl., Dkt. 1, at ECF 5.) Accordingly, in describing the allegations in the Complaint, the
Court draws from Plaintiff’s NYSDHR complaint and the NYSDHR’s Final Investigation Report.
See Lynch v. City of New York, 952 F.3d 67, 79 (2d Cir. 2020) (“It is well established that a pleading
is deemed to include any written instrument that is attached to it as an exhibit or is incorporated in
it by reference.”) (internal quotation marks and citations omitted).
After the reorganization, a white driver, Brian Calhoun, complained about the re-routing
to Dave Gambardella, an Aramark manager. (Id.) Gambardella gave some of Plaintiff’s stops to
Calhoun. (Id. at ECF 71.) When Plaintiff approached Gambardella about his stops, Gambardella
stated, “this is how we look after our own,” and then employed “stereotypical ‘Black phrases,’”
such as “you know what I’m saying homie?” (Id.)

Plaintiff also raised the stop-reassignment issue with Defendant’s assistant general
manager and general manager, but they similarly refused to act. (Id.) Plaintiff then attempted to
lodge a grievance with the Union, but the filing was delayed because Calhoun, the white driver
who had received Plaintiff’s stops, was the assistant shop steward responsible for filing grievances
at Aramark and did not file Plaintiff’s grievance. (Id.) Eventually, Plaintiff filed his grievance by
contacting a union representative directly. (Id.) Plaintiff eventually left his job in late summer
2017. (Id. at ECF 71.)
II. Plaintiff’s NYSDHR Complaint
On January 24, 2018, Plaintiff filed a Verified Complaint with the NYSDHR charging
Defendant “with an unlawful discriminatory practice relating to employment in violation of Article

15 of the Executive Law of the [NYSHRL] because of race/color.” (Id. at ECF 10, 12.)
As part of its investigation, the NYSDHR interviewed Plaintiff, as well as two witnesses
identified by Plaintiff, both of whom had heard the manager Dave Gambardella make “racially
charged derogatory comments” toward Black people on multiple occasions. (Id. at ECF 72.) The
parties also engaged in briefing. (See id. at ECF 16–32.) Plaintiff supplemented the allegations in
his NYSDHR Complaint in his April 22, 2018 reply to Defendant’s response, claiming, inter alia,
that in addition to changing his stops, Defendant had not properly compensated him, because it
failed to pay him the “loss and ruin” (“L&R”) pay he was owed from August to November 2016.
(Id. at ECF 31, 71).
On July 24, 2018, the NYSDHR issued its Determination After Investigation, in which it
found “probable cause” to proceed on Plaintiff’s NYSDHR Complaint. (Id. at ECF 72.) The case
was calendared for a pre-hearing settlement conference in front of an NYSDHR Administrative
Law Judge. (Id. at ECF 75.)
III. The Settlement Agreement

The parties began settlement talks in September 2018, after the NYSDHR issued its
Determination. (Declaration of Steven M. Friedman (“Friedman Decl.”), Dkt. 31, at ECF 3 ¶ 11.)4
Plaintiff was not represented by counsel at first, but then retained counsel in February 2019. (Id.
¶ 14.) On April 8, 2019, Plaintiff entered into a settlement agreement with Defendant (the
“Settlement Agreement”). (See id. ¶ 17; Settlement Agreement, Dkt. 31, at ECF 49–55.) Plaintiff
signed the Settlement Agreement while on a conference call “with Aramark’s attorney’s [sic]
Michael Fleming and Melissa Rodriguez, along with [his] attorney Stephen James[.]” (Plaintiff’s
Response to Defendant’s Motion for Summary Judgment (“Pl.’s Opp”), Dkt. 24, at 1.)5
The signed Settlement Agreement contained, inter alia, the following provisions:
WHEREAS, Barker filed a verified complaint with the New York State
Division of Human Rights (the “SDHR”), captioned New York State Division of
Human Rights on the Complaint of Ronald Barker v. Aramark Uniform & Career
Apparel, LLC, Case No. 10193046, for alleged unpaid wages and/or commissions
and unlawful discriminatory practices relating to his employment with Aramark
(“SDHR Proceeding”);
. . .

4 Plaintiff disputes several factual representations made in the Friedman Declaration (see
Pl.’s Opp., Dkt. 24, at 3), but the disputed facts are neither listed herein nor material to the instant
motion.

5 “While the Court ordinarily may not consider factual allegations contained in opposition
papers to a motion to dismiss, a number of courts have done just that where the pro se plaintiff’s
new allegations are consistent with those contained in his complaint.” Monroe v. Myskowsky, No.
12-CV-5513 (KPF), 2014 WL 496872, at *4 (S.D.N.Y. Feb. 6, 2014) (internal citation omitted)
(collecting cases). Given the limited nature of the summary judgment motion at issue, the Court
applies the same principle to Plaintiff’s papers here.
WHEREAS, Barker expressly reserves any rights he may have to pursue
any claims of racial discrimination and related issues not addressed within the
purview and jurisdiction of the SDHR Public Hearing that is scheduled for 4/10 and
4/11/2019, before the Division. Additionally, this agreement does not in any way,
preclude or inhibit Barker from pursuing whatever remedies that may be available
to him in Federal Court, regarding said claims not addressed in the SDHR Hearing;

WHEREAS, Barker intends to fully pursue his arbitration case currently
pending regarding his complaints against Aramark not addressed within the
purview and jurisdiction of the SDHR and by signing this agreement, Barker, in no
way, intends to waive or forfeit any remedies sought pursuant to said arbitration
proceedings not addressed in the SDHR Hearing.

WHEREAS, Barker is represented by Stephen G. James, Esq., and Barker
represents that he is satisfied that his counsel has used best efforts to pursue and
resolve the disputes in a manner that is fair to his interests. Barker represents that
he has discussed all aspects of his claims and allegations and this Agreement with
his counsel, has been fully advised by his counsel as to his rights, understands that
he is waiving significant legal rights by signing this Agreement, and enters into this
Agreement voluntarily, with a full understanding of the Agreement and all of its
terms.
. . .

WAIVER & RELEASE. Barker waives and releases any and all claims and
allegations asserted in the SDHR Proceeding against the Company and all of its
parent, subsidiary and affiliated companies or entities, including the entities listed
in Exhibit 21.1 to Aramark’s 2017 United States Securities and Exchange
Commission Form 10-K filing, and all of their past and present officers, directors,
employees, agents and assigns (collectively, “Releasees”), including but not limited
to Aramark American Food Services, Inc., Aramark Food and Support Services
Group, Inc., and Aramark School Support Services, LLC, d/b/a Aramark Schools,
LLC, arising from or relating to any and all acts, events and omissions alleged or
that could have been alleged in the SDHR Proceeding, including, but not limited
to, the laws of the State of New York including, but not limited to the New York
State Executive Law, including its Human Rights Law, the New York State Civil
Rights Law, the New York State Wage Payment Laws, the New York State Equal
Rights Law, the New York State Equal Pay Law, the retaliation provisions of the
New York State Workers’ Compensation and Disability Benefits Laws, the New
York State Labor Law and any applicable Wage Orders, the New York
Occupational Safety and Health Laws, all as amended.

(Settlement Agreement, Dkt. 31, at ECF 49–50.)
On April 5, 2019, the parties jointly submitted a withdrawal letter to the NYSDHR,
containing a letter from Plaintiff withdrawing his claims because they were addressed by private

settlement. (Withdrawal Letters, Dkt. 31, at ECF 57–58.) On April 16, 2019, the NYSDHR
Commissioner consented to the dismissal of the NYSDHR complaint with prejudice. (Dkt. 33, at
ECF 8–10.)
IV. The Instant Case
Shortly before the Settlement Agreement was finalized, Plaintiff received a “Right to Sue”
letter from the EEOC, dated February 14, 2019. (See EEOC Letter, Exhibit B to Pl.’s Opp., Dkt.
24-2, at 2.) Plaintiff commenced this action on May 8, 2019. (See Compl., Dkt. 1, at ECF 7.) On
July 26, 2019, Defendant requested a pre-motion conference in advance of a motion to dismiss
arguing, inter alia, that Plaintiff’s suit was barred by the Settlement Agreement. (See Dkt. 10.)
The Court held a conference on August 21, 2019, at which it instructed Defendant to file a motion

for partial summary judgment rather than a motion to dismiss to the extent it moved on the basis
of the Settlement Agreement. The Court stayed briefing on the motion while a parallel arbitration
process took place, and lifted the stay after the arbitrator rendered his decision.6 (See Nov. 6, 2019
Dkt. Order.) The instant motion was fully briefed on January 31, 2020.7 (See Dkt. 27.)

6 The arbitration case was brought by the Union against Defendant, and sought L&R
commissions. (Dkt. 31, at ECF 62–67.) A hearing on the grievance was held on October 3, 2019
(see Friedman Decl., Dkt. 31, ECF 4 ¶ 19), and on October 10, 2019, the Arbitrator issued a
decision dismissing the grievance based on the Settlement Agreement (see Dkt. 31, at ECF 65–66
(“On balance, I am persuaded that the Settlement effective[ly] moots the grievance.”).)

7 Though not provided for in the briefing schedule set by the Court on December 6, 2019
(see Dec. 6, 2019 Order), Plaintiff filed a response to Defendant’s reply on February 5, 2020. (See
LEGAL STANDARD
Summary judgment is appropriate where the submissions of the parties, taken together,
“show[] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986) (summary judgment inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986). A mere “scintilla of evidence” in support of the nonmoving party is
insufficient; “there must be evidence on which the jury could reasonably find for the [non-

movant].” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted and
alteration in original). In other words, “[t]he nonmoving party must come forward with specific
facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quotation and citation omitted). In determining whether a genuine issue of fact
exists, the Court must resolve all ambiguities and draw all reasonable inferences against the
moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.

Dkt. 34.) Because of the “special solicitude” due pro se plaintiffs, see Ceara v. Deacon, 916 F.3d
208, 213 (2d Cir. 2019), the Court considers Plaintiff’s sur-reply submission, along with his
response to Defendant’s motion.
2008). The Court also construes any disputed facts in the light most favorable to the non-moving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157–59 (1970). However, “the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson, 477 U.S. at 247–48 (emphasis omitted).
DISCUSSION

Defendant contends that Plaintiff’s claims are covered by the release in the parties’
Settlement Agreement, and that his release of those claims was knowing and voluntary. (See
Defendant’s Motion for Summary Judgment (“MSJ”), Dkt. 30, at 11–12.) Plaintiff does not
dispute that he “knowingly and voluntarily” released his claims for “compensatory commission,
loss wages, and back pay” as part of the Settlement Agreement (see Pl.’s Opp., Dkt. 24, at 5), but
claims that the release does not extend to his claims for “[f]ederal discrimination Title VII issues”
(id. at 1). For the reasons that follow, the Court grants Defendant’s motion as to Plaintiff’s
NYSHRL, NYCHRL, and his Section 1981 claim. However, the Court denies Defendant’s
motion, without prejudice to renew after discovery, as to the punitive damages portion of
Plaintiff’s Title VII claims.

I. Release of Claims
“It is well established that settlement agreements are contracts and must therefore be
construed according to general principles of contract law.”8 Dechberry v. N.Y.C. Fire Dep’t, 124
F. Supp. 3d 131, 141 (E.D.N.Y. 2015) (citing, inter alia, Collins v. Harrison–Bode, 303 F.3d 429,
433 (2d Cir. 2002)). “Courts in this Circuit have consistently barred claims where a plaintiff enters

8 The choice of law paragraph in the Settlement Agreement provides that “any dispute
arising under this Agreement, or related in any way to the term of same, shall be governed by the
laws of the State of New York, without regard to choice of law principles.” (Settlement
Agreement, Dkt. 31, at ECF 54.) The Court therefore applies New York contract law in
interpreting the Settlement Agreement.
into a settlement, executes a general release, and then brings an additional lawsuit alleging similar
claims that could have been alleged in the prior settled action.” Id. at 142 (collecting cases); see
also Tromp v. City of New York, 465 F. App’x 50, 52 (2d Cir. 2012) (summary order) (“Words of
general release are clearly operative not only as to all controversies and causes of action between
the releasor and releasees which had, by that time, actually ripened into litigation, but to all such

issues which might then have been adjudicated as a result of pre-existent controversies.”) (citation
omitted). “General releases usually cover all claims and demands due at the time of execution
unless specified rights or claims are excluded.” Spanski Enters., Inc. v. Telewizja Polska, S.A.,
No. 10-CV-4933 (ALC) (GWG), 2013 WL 81263, at *4 (S.D.N.Y. Jan. 8, 2013) (collecting cases).
“When general language is used in the releasing document, the release is to be construed most
strongly against the releasor.” Smickle v. City of New York, No. 16-CV-3333 (VSB), 2018 WL
1578381, at *3 (S.D.N.Y. Mar. 29, 2018) (citation omitted).
Here, the release clause at issue provides that:
[Plaintiff] waives and releases any and all claims and allegations asserted in the
SDHR Proceeding against the Company and all of its parent, subsidiary and
affiliated companies or entities . . . arising from or relating to any and all acts, events
and omissions alleged or that could have been alleged in the SDHR Proceeding,
including, but not limited to, the laws of the State of New York[.]

(Settlement Agreement, Dkt. 31, at ECF 50.) Defendant claims that this provision of the
Settlement Agreement is a “general release” and unambiguous (see Defendant’s Reply
Memorandum in Support of Summary Judgment (“Def.’s Rep.”), Dkt. 32, at 1–3), and that it bars
the instant suit because Plaintiff’s claims and allegations in this matter are the same, but for their
statutory basis, as those asserted in the NYSDHR Proceeding (MSJ, Dkt. 30, at 14). Plaintiff
contends that while the factual predicate for his instant complaint is the same as in the NYSDHR
proceeding, he now brings different claims.9 (See Pl’s Resp., Dkt. 24, at 1 (“In the SDHR
proceedings I asserted and expected compensatory damages for unpaid wages, commissions and
L&R. . . I inten[d]ed to reserve my rights to pursue the discrimination claim in Federal court under
Title VII.”).)
Where a settlement agreement accompanies a dismissal, “the preclusive effect of the

settlement is measured by the intent of the parties to the settlement.” Berrios v. State Univ. of N.Y.
at Stony Brook, 518 F. Supp. 2d 409 (E.D.N.Y. 2007) (citing, inter alia, Greenberg v. Bd. of
Governors, 968 F.2d 164, 168 (2d Cir. 1992)); see also Tromp, 465 F. App’x at 51 (“Where the
language of a release is clear, effect must be given to the intent of the parties as indicated by the
language employed.”) (internal quotation marks, alterations, and citation omitted). “Under New
York law . . . the initial question for the court on a motion for summary judgment with respect to
a contract claim is whether the contract is unambiguous with respect to the question disputed by
the parties.” Law Debenture Tr. Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 465 (2d Cir.
2010) (internal quotation marks and citation omitted); see also Nippon Yusen Kaisha v. FIL Lines

USA Inc., 977 F. Supp. 2d 343, 349 (S.D.N.Y. 2013) (“[A] motion for summary judgment may be
granted only where the agreement’s language is unambiguous and conveys a definite meaning.”)
(quoting Am. Home. Assur. Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 316 (2d
Cir. 2006)). Language in a contract is ambiguous “if it is capable of more than one meaning when
viewed objectively by a reasonably intelligent person who has examined the context of the entire

9 Plaintiff at turns refers to the agreement as unambiguous and ambiguous (see Pl.’s Opp,
Dkt. 24, at 1, 4) but insists that the waiver does not apply to his Title VII claims, which he claims
are explicitly reserved by the recital clause “expressly reserv[ing] any rights he may have to pursue
any claims of racial discrimination and related issues not addressed within the purview and
jurisdiction of the SDHR Public Hearing” (Settlement Agreement, Dkt. 31, at ECF 49; see Pl.’s
Opp, Dkt. 24, at 4). Given this disagreement over the interpretation of the Settlement Agreement,
the Court interprets Plaintiff as arguing that the agreement is ambiguous.
integrated agreement and who is cognizant of the customs, practices, usages and terminology as
generally understood in the particular trade or business.” Nippon Yusen Kaisha, 977 F. Supp. 2d
at 349 (internal quotation marks and citation omitted). “The matter of whether the contract is
ambiguous is a question of law for the court.” Law Debenture Tr. Co, 595 F.3d at 465 (collecting
cases).

In light of the parties’ differing interpretations of the waiver at issue, it is left to the Court
to determine whether “all claims and allegations asserted in the SDHR Proceeding” is
“unambiguous and conveys a definite meaning.” See Nippon Yusen Kaisha, 977 F. Supp. 2d at
349. Generally, “it is th[e] identity of facts surrounding the occurrence which constitutes the cause
of action, not the legal theory upon which the plaintiff chose to frame [his] complaint.” Morales
v. N.Y.C. Dep’t of Educ., 808 F. App’x 35, 37 (2d Cir. 2020) (summary order) (quoting Woods v.
Dunlop Tire Corp., 972 F.2d 36, 39–40 (2d Cir. 1992)). Question preclusion based on claim
identity and similarity, as Defendant aptly notes, may be understood through the largely analogous
doctrine of res judicata. (MSJ, Dkt. 30, at 14.) “Under both New York law and federal law, the

doctrine of res judicata, or claim preclusion, provides that ‘[a] final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or could have been
raised in that action.”’ McCloud v. Mairs, No. 12-CV-2556 (SLT) (LB), 2014 WL 9880043, at *6
(E.D.N.Y. Oct. 24, 2014) (quoting Maharaj v. BankAmerica Corp. 128 F.3d 94, 97 (2d Cir. 1997)),
report and recommendation adopted, 2015 WL 3607565 (E.D.N.Y. June 2, 2015). “[A] dismissal,
with prejudice, arising out of a settlement agreement operates as a final judgment for res judicata
purposes.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002). However, “[r]es
judicata will generally not apply where the initial forum did not have the power to award the full
measure of relief sought in the later litigation.” Monclova v. City of New York, No. 13-CV-7261
(KAM) (ST), 2017 WL 5495804, at *15 (E.D.N.Y. Mar. 31, 2017) (internal quotation marks
omitted) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), aff’d, 726 F. App’x 83 (2d
Cir. 2018); Barrington v. New York, 806 F. Supp. 2d 730, 741–42 (S.D.N.Y. 2011) (“With respect
to this exception to res judicata, the inquiry centers on whether the court had the power to grant
the plaintiff the relief sought in the present action.”) (internal quotation marks omitted) (quoting

Burgos, 14 F.3d at 792); see also Marvel Characters Inc., 310 F.3d at 287 (same).
Because Plaintiff’s statement of facts in the instant action consists of his NYSDHR file
(see supra n.2), the factual allegations that form the basis of his complaint are clearly substantively
identical to those he asserted in the NYSDHR proceeding.10 Cf. Son v. Greenland Produce &
Grocery, Inc., No. 11-CV-9533 (PGG), 2013 WL 12084500, at *4 (S.D.N.Y. Mar. 11, 2013),
(finding federal and state court complaints “stem[med] from the same set of events and allegations”
where, “instead of providing a statement of facts in the [federal] Complaint, [plaintiff] refer[red]
to the documents he submitted to the NYSDHR and the NYSDHR’s determination, which formed
the basis for his state court petition”), aff’d sub nom. Son v. Lee, 559 F. App’x 81 (2d Cir. 2014).

Though the legal basis for his claims mostly differs—Plaintiff brought his NYSDHR complaint
pursuant to the NYSHRL11 (Compl., Dkt. 1, at ECF 10), and here purports to sue under 42 U.S.C.
§ 1981, Title VII, and the NYCHRL, in addition to his NYSHRL claim (see id. at 3–4)—all but

10 Plaintiff disputes several factual representations made by Defendant in its motion for
summary judgment (see Pl.’s Opp., Dkt. 24, at 3) but these disputes of fact are not material to the
question at issue.

11 As Defendant notes, when Plaintiff submitted his NYSDHR complaint, he also
acknowledged that his complaint would be dual-filed with the United States Equal Employment
Opportunity Commission (“EEOC”) under the Americans with Disabilities Act, Title VII of the
Civil Rights Act of 1964, and/or the Age Discrimination in Employment Act. (See Compl., Dkt.
1, at ECF 15.)
Plaintiff’s Title VII claim for punitive damages, are unambiguously barred by the waiver in the
Settlement Agreement.
First, Plaintiff’s claims under the NYSHRL are plainly barred, as these are the claims
Plaintiff “asserted in the SDHR proceeding” and are explicitly named in the Settlement
Agreement. (See id. at ECF 10; Settlement Agreement, Dkt. 31, at ECF 50.) Second, Plaintiff’s

NYCHRL claim is also barred because “the election of remedies doctrine under both the
[NYSHRL and the NYCHRL] precludes a plaintiff from pursuing his discrimination claims in a
court of law when the same claims were previously brought before a local administrative agency.”
DuBois v. Macy’s Retail Holdings, Inc., 533 F. App’x 40, 41 (2d Cir. 2013) (summary order)
(subject to certain exceptions not relevant here) (citing N.Y. Exec. Law § 297(9) and N.Y.C.
Admin. Code § 8–502)); see also Szewczyk v. City of New York, No. 17-CV-1884 (MKB), 2018
WL 4688946, at *5 (E.D.N.Y. Sept. 28, 2018) (collecting cases). Third, Plaintiff’s Section 1981
claims are barred pursuant to res judicata by the NYSDHR dismissal with prejudice, because
“unreviewed state administrative proceedings may be given preclusive effect in federal court with

regard to the Civil Rights statutes,” Benson v. N. Shore-Long Island Jewish Health Sys., 482 F.
Supp. 2d 320, 327 (E.D.N.Y. 2007) (citing, inter alia, Univ. of Tenn. v. Elliott, 478 U.S. 788, 797
(1986)), and “a dismissal, with prejudice, arising out of a settlement agreement operates as a final
judgment for res judicata purposes,” Marvel Characters, Inc., 310 F.3d at 287.
However, state administrative proceedings unreviewed by courts do not bar a claim under
Title VII. See Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 231–32 (2d Cir. 2015) (“A claimant
may bring federal ADA and Title VII claims even if they have been rejected in a state
administrative proceeding. . . . [W]e do not give preclusive effect to state agency decisions unless
they have been reviewed in a state court proceeding.”)12 Additionally, the Second Circuit has
considered and found that “a Title VII plaintiff who prevailed on her discrimination claims before
a state administrative agency and in appeals of the agency decision to state court can subsequently
file suit in federal court seeking relief that was unavailable in the state proceedings,” Nestor v.
Pratt & Whitney, 466 F.3d 65, 69 (2d Cir. 2006),13 because while “Title VII explicitly leaves the

States free, and indeed encourages them, to exercise their regulatory power over discriminatory
employment practices . . . [it] provides a supplemental right to sue in federal court if satisfactory
relief is not obtained in state forums,” id. at 71 (quoting N.Y. Gaslight Club, Inc. v. Carey, 447
U.S. 54, 67–68 (1980)).
Here, the punitive damages Plaintiff seeks as part of his Title VII claim were not available
at the agency level. (See generally Pl.’s Opp., Dkt. 24.) As Plaintiff correctly argues, at the time
the parties settled Plaintiff’s administrative case, the NYSDHR lacked authority to award punitive
damages based on employment discrimination.14 N.Y. Exec. Law § 297(4)(c) (McKinney 2016);

12 The Court recognizes that, as Defendant notes (see MSJ, Dkt. 30, at 14), “[f]ederal courts
within this Circuit have applied the doctrine of res judicata to preclude employment discrimination
claims arising out of the same set of facts that were previously alleged in support of unsuccessful
claims before the NYSDHR and the New York Supreme Court.” Barnes v. N.Y.S. Div. of Human
Rights, No. 14-CV-2388 (LTS) (HBP), 2016 WL 110522, at *6 (S.D.N.Y. Jan. 8, 2016) (collecting
cases). Here, however, as discussed infra, there was no state court review of the administrative
dismissal of Plaintiff’s case.

13 At the same time, the Court reiterates that, following the logic in Nestor, 466 F.3d 65,
Plaintiff’s claim for compensatory damages under Title VII does not survive, even though the
outcome of the administrative proceeding was not reviewed by a state court, because compensatory
damages were available to Plaintiff at the NYSDHR. See N.Y. Exec. Law § 297(4)(c) (McKinney
2016) (providing for compensatory damages in employment discrimination cases at the
NYSDHR).

14 The NYSHRL was subsequently amended in October 2019 to provide for punitive
damages in employment discrimination cases at the NYSDHR. Compare N.Y. Exec. Law §
297(4)(c) (McKinney 2019) with N.Y. Exec. Law § 297(4)(c) (McKinney 2016).
see also Ballard v. HSBC Bank USA, N.A., 827 F. Supp. 2d 187, 191 (W.D.N.Y. 2011). Because
Nestor construes a Title VII punitive damages claim as distinct from underlying state
discrimination claims for res judicata purposes, it is not entirely clear to the Court that the waived
“claims and allegations asserted in the SDHR Proceeding” unambiguously include Plaintiff’s
claim for punitive damages under Title VII.15 Similar agreements often waive “any and all claims”

that a person has, had, or may have, against the releasees, or all claims arising out of the same
operative set of facts. See, e.g., Smith v. JPMorgan Chase, No. 15-CV-808 (PAE), 2016 WL
5339548, at *2 (S.D.N.Y. Sept. 23, 2016) (general release found where settlement covered “any
and all claims that [plaintiff] has, had, may have or may have had as a result of [plaintiff]’s
employment or termination of employment at [defendant]”). Here, while the waiver does include
language about claims “arising from or relating to any and all acts, events and omissions alleged
or that could have been alleged in the SDHR Proceeding,” that language ultimately modifies the
“claims and allegations asserted in the SDHR Proceeding” and is limited to those claims and
allegations.16 (See Settlement Agreement, Dkt. 31, at ECF 50.)

15 The Court also acknowledges that at least one court in this circuit has held that a
settlement agreement followed by a dismissal with prejudice at the NYSDHR bars recovery in
federal court under Title VII. See Hughes v. Lillian Goldman Family, LLC, 153 F. Supp. 2d 435,
447 (S.D.N.Y. 2001) (holding that a “Conciliation Agreement ordered by NYSDHR withdrawing
the plaintiff's claims with prejudice . . . constitute[d] a final judgment on the merits for purposes
of res judicata” in plaintiff’s housing discrimination case such that the plaintiff was barred by her
settlement from pursuing her claims in federal court). Hughes is distinguishable, however, because
the NYSDHR, while historically barred from awarding punitive damages for employment
discrimination, has long been able to grant them for housing discrimination. See N.Y. Exec. Law
§ 297(4)(c). Because the NYSDHR, as the initial forum, had the power to award the full measure
of relief sought in the later litigation, no exception to the res judicata doctrine was implicated. See
Burgos, 14 F.3d at 790.

16 The Court notes that the Settlement Agreement only refers by name to claims waived
under New York State laws, though it also provides that the list of claims waived is not limited to
those listed. (See Settlement Agreement, Dkt. 31, at ECF 50.)
Generally, “[t]he court should read the integrated contract as a whole to ensure that undue
emphasis is not placed upon particular words and phrases.” Law Debenture Tr. Co., 595 F.3d at
468 (internal quotation marks and citation omitted). Here, however, the other clauses of the
Settlement Agreement do not provide clear guidance on how to properly interpret “claims and
allegations asserted in the SDHR Proceeding.” Defendant points to several clauses in the

agreement as additional evidence of the general nature of the release:
 “Barker and Aramark desire to settle and resolve fully and finally all claims and
allegations asserted by Barker in the SDHR Proceeding.” (Id. at 1 (emphasis
added).)

 “The parties wish to avoid lengthy, costly, and time-consuming litigation and
wish to obtain full, final, and complete settlement of all claims and allegations
asserted by Barker in the SDHR Proceeding.” (Id. (emphasis added).)
. . .
 “Upon receipt of the payments provided for in Paragraph 3 of this Agreement and
the payments provided for in the Stipulation of Settlement attached hereto as
Exhibit 1, Barker will have received all amounts due from Aramark for the
claims and allegations asserted in the SDHR Proceeding, including but not
limited to the following: (i) all wages earned, including but not limited to
minimum wage and overtime wages and all wages applicable; (ii) any alleged
unpaid Commissions that were the subject of the SDHR Proceeding; and (iii)
payment for all accrued but unused paid vacation time.” (Id. ¶ 6.1 (emphasis
added).)17

(MSJ, Dkt. 30, at 9 (emphasis in original) (quoting Settlement Agreement, Dkt. 31, at ECF 49–
50).) These clauses, however, do nothing to clarify the meaning of “claims and allegations asserted
in the SDHR proceeding,” and indeed are susceptible to the same ambiguity. Furthermore, to the
extent that Paragraph 6.1 of the Settlement Agreement, set forth above, purports to specify, albeit
non-exhaustively, “all amounts due from Aramark for the claims and allegations asserted in the

17 The Settlement Agreement includes consideration for unpaid wages and commissions,
attorneys’ fees, and “non-wage compensatory damages that were the subject of the SDHR
Proceeding.” (Settlement Agreement, Dkt. 31, at ECF 51.) It does not, however, include
consideration for punitive damages.
SDHR Proceeding,” it notably fails to include punitive damages, which lends support to Plaintiff’s
interpretation of the waiver as not extending to this relief since it was not available under the
NYSHRL.18
Going a step further, however, Plaintiff insists that his right to sue for punitive damages in
federal court is explicitly reserved by the recital clause in the agreement providing that he

expressly reserves any rights he may have to pursue any claims of racial
discrimination and related issues not addressed within the purview and jurisdiction
of the SDHR Public Hearing that is scheduled for 4/10 and 4/11/2019, before the
Division. Additionally, this agreement does not in any way, preclude or inhibit
Barker from pursuing whatever remedies that may be available to him in Federal
Court, regarding said claims not addressed in the SDHR Hearing.

(Settlement Agreement, Dkt. 31 at ECF 49; see Pl.’s Opp., Dkt. 24, at 4–5.) The Court again
disagrees as this provision also turns on the definition of claims “within the purview and
jurisdiction of the SDHR Public Hearing.” If the Court were to accept Defendant’s interpretation
of “claims,” it could easily read this provision as merely reserving Plaintiff’s right to sue in federal
court for racial discrimination based on a completely different set of facts than that alleged here,
and thus as inapplicable to the instant case, which alleges the same facts as Plaintiff’s NYSDHR
complaint.19

18 Even though the NYCHRL also provides for punitive damages, see N.Y.C. Admin.
Code § 8–502; Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d 351, 361–62
(E.D.N.Y. 2008), as previously discussed, Plaintiff’s NYCHRL claim is still barred because the
election of remedies doctrine under both the NYSHRL and NYCHRL precludes “a plaintiff from
pursuing his discrimination claims in a court of law when the same claims were previously brought
before a local administrative agency.” DuBois, 533 F. App’x at 41.
19 Though the Court finds the language of the waiver to be ambiguous, it is by no means
persuaded that the Settlement Agreement in fact reserves Plaintiff’s right to sue for punitive
damages under Title VII. “[P]arties engage in settlement with the expectation of finality for
pending issues and claims,” Spanski Enterprises, Inc., 2013 WL 81263, at *5, and the Court is
skeptical that Defendant would have settled the NYSDHR claims without ensuring that Plaintiff
would not again bring claims based on the same facts. See id. (“There is a strong interest in the
finality of judgments, especially when the parties have entered into a settlement agreement. No
reasonable party would intend to give up their rights to pursue claims permanently and completely
Nevertheless, the Court, having found the release to be ambiguous with respect to scope of
the claims released, must look outside the Settlement Agreement for evidence of the parties’ intent
with regard to the scope of the waiver. See Quinio v. Aala, 344 F. Supp. 3d 464, 471 (E.D.N.Y.
2018) (“If the court determines that the provision is ambiguous, it must then determine whether
there is extrinsic evidence regarding the parties’ intent.”) (citing Gallien v. Conn. Gen. Life Ins.

Co., 49 F.3d 878, 884 (2d Cir. 1995)). “Although a determination that a contract is ambiguous
ordinarily requires denial of summary judgment, the court may nonetheless grant summary
judgment where the extrinsic evidence illuminating the parties’ intended meaning of the contract
is so one-sided that no reasonable person could decide to the contrary.” N.Y. Marine & Gen. Ins.
Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 115 (2d Cir. 2010) (internal quotation marks and citation
omitted). Here, given the limited nature of the summary judgment motion and the lack of
discovery, insufficient evidence exists in the record to determine the parties’ intent at this stage.
Plaintiff alleges in his papers that he rejected a larger settlement amount to preserve his right to
sue in federal court, but his statement is unsworn and he provides no evidence or specifics

regarding the earlier amount. (See Pl.’s Opp., Dkt. 24, at 1–2, 4–6.) Plaintiff also submits a draft

and not hold the other side to a similar expectation.”) (internal quotation marks, citation, and
alteration omitted) (citing, inter alia, Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986))). The
Court finds it possible and even likely that by waiving “all allegations asserted in the SDHR
Proceeding,” the Plaintiff executed a general release and waived his right to allege any of the facts
raised in the NYSDHR proceeding, and thus his ability to establish a factual basis for a punitive
damages claims. The Court is mindful that “strong policy considerations require that what all
parties thought to be a closed matter remain so” and that one “who gives a general release has had
the opportunity to press his claim and once the decision to settle is made, a party must abide by
it.” Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2017 WL 9802836, at *6 (S.D.N.Y.
Nov. 14, 2017) (alterations omitted).
“stipulation of settlement”20 of his NYSDHR claims, presumably to show that the parties had
removed the language waiving
any and all claims arising under local, state or federal statute, regulation, or
ordinance relating to employment discrimination, or any other claim related to or
arising out of the Complainant’s employment by the Respondent which the
Complainant has asserted or could have asserted for events occurring through the
date of this agreement.

(See Pl.’s Opp. Exhibit A, Dkt. 24-1, ¶ 6.)
This evidence, standing alone, is insufficient to warrant summary judgment on Plaintiff’s
Title VII claim for punitive damages. However, given the limited nature of the proceedings at this
point, the Court will permit the parties to conduct limited discovery as to the scope of the waiver
provision.
CONCLUSION
Defendant’s summary judgment motion is granted insofar as Plaintiff’s claims under the
New York State and New York City Human Rights Laws and Section 1981 are dismissed.
Plaintiff’s claim for compensatory damages under Title VII is also dismissed. However, summary
judgment is denied without prejudice as to Plaintiff’s Title VII claim for punitive damages.
The Court will permit limited discovery and additional briefing on the issue of the parties’
intent with respect to the Settlement Agreement’s waiver of “any and all claims and allegations
asserted in the SDHR Proceeding.” Specifically, the Court will grant the parties ninety (90) days
from the entry of this Memorandum and Order to submit affidavits, subject to a limited waiver of
attorney-client privilege, from the individuals involved in the negotiation of the Settlement

20 This draft stipulation was a precursor of the Settlement Agreement that the parties filed
with the NYSDHR. The NYSDHR then told the parties that they should instead execute a
settlement agreement and then file a stipulation of dismissal with the NYSDHR, which the parties
did. (See Supplemental Declaration of Steven M. Friedman, Dkt. 33, ¶¶ 2–3.)
Agreement regarding any reservation of Plaintiff’s right to bring a claim for punitive damages
under Title VII in federal court. Defendant may renew its motion upon the submission of this
additional information, along with limited additional briefing from the parties.

SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 8, 2020
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304918. Public record. Not legal advice.