Gomez v. NYS Dept. of Transportation et al
MEMORANDUM & ORDER: Defendant's 13 Motion to Dismiss is granted. The case is dismissed. No costs or disbursements. Ordered by Senior Judge Jack B. Weinstein on 7/14/2011. (Lee, Tiffeny)
IN CLERK'S OFFICE
U.S. DISTRICT COURTE.O.N.Y.
* JUL 1 9 2011
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstTHE NEW YORK STATE DEPARTMENT
OF TRANSPORTATION, NEW YORK
STATE DEPARTMENT OF HUMAN
JACK B. WEINSTEIN, Senior United States District Judge:
Plaintiff Raymond Gomez, appearing prose, brings suit against the New York State
Department of Transportation ("DOT") and the New York State Division of Human Rights
("DHR") alleging race, gender, and disability employment discrimination. Gomez claims he
suffered unlawful termination, retaliation, and failure to accommodate in violation of Title VII to
the Civil Rights Act of 1964 and the Americans with Disability Act. Defendants move to
dismiss on the basis of collateral estoppel and other grounds pursuant to Federal Rules of Civil
Procedure 12(b)(l) and 12(b)(6).
Because plaintiff has been unable to obtain an attorney and has been granted five
adjournments to permit him to obtain one, the court has carefully examined his papers to
determine if any valid claim is or might possibly be made on his behalf. Further adjournments
are not desirable since the case is frivolous. It must now be decided to avoid burden on
For the reasons set forth below, Defendants' motion is granted.
II. Facts and Procedural History
Gomez was employed by the DOT as a calculation clerk for nearly twenty years. See
Pl.'s Aff. in Opp. to Defs.' Mot. ("Pl.'s Opp.") at 8. After numerous alleged workplace
violations, including tardiness, sleeping on the job, and fraudulent timekeeping, Gomez entered
into a probation agreement with the DOT on October 2, 2007. See Declaration of Neil Shevlin
("Shevlin Decl."), Ex. C, Plaintiffs Notice of Petition, dated April 27, 2009, filed with Supreme
Court of the State ofNew York, New York County ("Article 78 Petition") at 2-3. It was agreed
that Gomez would improve his behavior for a period of nine months. See Shevlin Dec!., Ex. D,
Decision, Order and Judgment of New York State Supreme Court Justice Paul G. Feinman dated
Oct. 2, 2009 ("New York Decision") at 2. After the DOT discovered Gomez sleeping on the job
on two subsequent occasions, it recommended on October 24, 2007 that his employment be
terminated, effective October 30, 2007. !d. Gomez subsequently obtained a medical note dated
October 29, 2007, which documented a medical visit for treatment of hyper-insomnia and stress.
See Pl.'s Opp. at 6; Article 78 Petition at 7.
After allegedly being forced to resign, Gomez filed a complaint with the DHR on
December 3, 2007, asserting that he was unlawfully discriminated against because of his gender,
race, national origin, and disability. See Schevlin Dec!., Ex. B, Verified Complaint to New York
State Division of Human Rights ("DHR Complaint") at I; New York Decision at 2. Following
an investigation, the DHR determined there was no probable cause to believe that the DOT
engaged in unlawful discrimination. See Article 78 Petition at 7. On April 27, 2009, Gomez
appealed from this decision to the New York State Supreme Court pursuant to New York CPLR
Article 78, renewing his discrimination claims and contending that the DHR improperly failed to
call witnesses on his behalf. See New York Decision at 3-4. The New York court examined all
of the plaintiffs claims. It ruled against him. He filed the instant proceeding on November 18,
2009. See New York Decision at 1-5; Pl.'s Compl. ("Fed. Compl.").
III. Law and Application to Facts
A. Construal of a Pro Se Filing
Allegations of a pro se complaint or petition are held to less stringent standards than
formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Elliott
v. Bronson, 872 F.2d 20 (2d Cir.l989). The court attempted to pragmatically level the playing
field for this pro se litigant by construing the facts as favorably to his position as is practicable
and fair to the defendant.
B. Collateral Estoppel
"A federal court must apply the collateral estoppel rules of the state that rendered a prior
judgment on the same issues currently before the court .... " LaFleur v. Whitman, 300 F.3d 256,
271 (2d Cir. 2002). Under New York law collateral estoppel is applied if"the issue in the
second action is identical to an issue which was raised, necessarily decided and material in the
first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier
action." !d. (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343,349 (1999)). In the
Article 78 context, a "New York state court affirmation of [the DHR's] finding of no probable
cause would preclude federal litigation based on the same facts, provided that the procedures
followed in coming to that determination satisfied the minimum constitutional requirements of
the Due Process Clause of the Fourteenth Amendment." Yan Yam Koo v. Dep 't of Bldgs. of City
ofNew York, 218 Fed. App'x 97, 98 (2d Cir. 2007) (summary order) (citing Kremer v. Chemical
Construction Corp., 456 U.S. 461,481-82 (1982)).
Gomez relies on essentially the same facts as he did in the DHR and Article 78
proceedings. He again contends that the DOT unlawfully terminated his employment and failed
to accommodate his disability. Compare Fed. Compl. at 7, 9, with DHR Complaint at 3, 4; New
York Decision at 2. Having obtained judicial affirmance of the DHR's decision in an
appropriate New York state court, which fully examined his claims, plaintiff forfeited his right to
relitigate his federal claims in federal court. See Aumporn Wongiatkachorn v. Capital One Bank,
No. 09 Civ. 9553 (CM), 2010 WL 3958764 at *5 (S.D.N.Y. Oct. 5, 2010).
Also renewed is plaintiff's argument that the DHR hearing officer improperly failed to
call witnesses on his behalf. Fed. Compl. at 9. This allegation, which may be construed as one
for a Due Process violation, was thoroughly examined and rejected by the New York Supreme
Court in the Article 78 proceeding. See New York Decision at 2-5. The state court found as a
matter oflaw that the DHR's investigation was proper. /d. at 5. Coupled with Article 78 judicial
review, the DHR's investigative procedures were sufficient under the Due Process Clause.
Kremer, 456 U.S. at 484-85 ("The fact that [the plaintiff] failed to avail himself of the full
procedures provided by state law does not constitute a sign of their inadequacy."); Aumporn
Wongiatkachorn, 2010 WL 3958764 at *5 ("The veracity of[the DHR] investigation was then
examined and deemed sufficient by a New York state court. Therefore, Plaintiff was afforded a
full and fair opportunity to present her claims.").
Gomez's substantive and procedural claims of unlawful discrimination and failure to
accommodate are dismissed.
C. Retaliation Claim
For the first time Gomez asserts a retaliation claim against the DOT. Fed. Compl. at 7;
Pl.'s Opp. at 5. Construing the complaint liberally, he alleges that he was retaliated against,
purportedly for unlawful reasons, after he complained that he was the only employee who was
required to inform his supervisor every time he left his desk. !d. This legal theory was not
explicitly asserted in the state proceedings.
The retaliation claim is dismissed pursuant to the res judicata doctrine. Under New York
law, res judicata bars a "later claim arising out of the same factual grouping as an earlier
litigated claim [that] is based on different legal theories or seeks dissimilar or additional relief."
Burgos v. Hopkins, 14 F.3d 787,790 (2d Cir. 1994); see also Davis v. Oyster-Bay E. Norwich
Central School Dist., No. 09-CV-1823 (JFB), 2010 WL 3855237, at *4 (E.D.N.Y. Sep. 28, 2010)
(applying collateral estoppel where state proceedings examined the same "facts and
circumstances" as alleged in federal complaint); Wilson v. Limited Brands, Inc., No. 08-CV3431, 2009 WL 1069165, at *3 (S.D.N.Y. Apr. 17, 2009) ("Because Plaintiffs claims
indisputably arise from the same set of facts, res judicata applies to bar any legal theories she
now raises that are different from those raised in the state court proceeding.").
Although Gomez did not check the "retaliation box" on his DHR complaint, see DHR
Complaint at 3, he made the same factual allegation underlying the current retaliation claim, see
id. at 4. Both the DHR and state court examined the entire record and concluded that there was
no evidence of any unlawful discrimination. See Article 78 Petition; New York Decision.
Gomez's retaliation claim is therefore dismissed.
IV. Lack of Merits
Based on the record, all of plaintiffs claims are meritless on the facts, independently of
the collateral estoppel defense. He has had full substantive and procedural due process. There is
no reason to further burden the defendants with this case. See Hr'g on Mot. to Dismiss, July 14,
Defendants' motion to dismiss is granted. The case is dismissed. No costs or
ck B. Weinstein
' enior United States District Judge
Date: July 14,2011
Brooklyn, New York
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