Sullivan v. New York City Department of Investigation et al
OPINION re: 22 FIRST MOTION to Dismiss the Complaint In Part filed by New York City Housing Authority, Bergia Telesford, Kelvin Jeremiah. Defendants are entitled to judgment on the pleadings for Sullivan's § 1983 claim. Because there are no remaining claims, the clerk's office should close the case. This opinion resolves the motion listed as document number 22 in case 12 Civ. 2564. (Signed by Judge Thomas P. Griesa on 3/26/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
12 Civ. 2564
NYC DEPARTMENT OF
INVESTIGATION et al.,
Sharon Sullivan brings this action alleging employment discrimination
on the basis of her race, religion, and age. She also alleges retaliation resulting
from her complaints of discrimination.
Defendants argue that Sullivan is precluded from relitigating in this
court whether defendants’ acts were discriminatory because that issue was
previously decided by a state agency. Defendants contend that this court must
give preclusive effect to the state agency’s determination and enter judgment on
the pleadings. The motion is granted.
The court’s February 21, 2013, opinion extensively reviewed the
allegations in Sullivan’s complaint. For purposes of this motion, only a brief
review of the facts is necessary.
As part of a staff reduction, Sullivan was transferred from the New York
City Department of Investigation to the New York City Housing Authority. As
part of the transfer, she lost the seniority she had earned through her years of
employment with the city. She alleges that once in the new position, her
supervisors, Kelvin Jeremiah and Bergia Telesford, did not provide her with the
necessary software, supplies, and support that she needed to fulfill her duties.
Sullivan also alleges that her supervisors verbally abused her and gave her
unjustified negative performance reviews. Sullivan was the only Caucasian
Roman Catholic in the office, and she alleges that her African-American
coworkers did not receive the same mistreatment. Sullivan alleges that when
she complained about the discriminatory treatment, no supervisor addressed
the problems; instead, the discrimination escalated. Ultimately, Sullivan and
Jeremiah had a heated exchange, which led to Sullivan’s termination.
Prior to filing suit in federal court, on July 25, 2011, Sullivan filed a
complaint with the New York State Division of Human Rights, alleging that
defendants discriminated against her based on age, creed, race, and sex in
violation of the New York Human Rights Law based on the same facts now
before this court. Her complaint also alleged retaliation based on her
complaints of discrimination. In response to this complaint, defendants filed a
position statement, denying Sullivan’s allegations and requesting dismissal of
On January 20, 2012, after investigating Sullivan’s allegations, the
Division issued an order, finding that there was no probable cause to believe
that defendants engaged in unlawful discriminatory practices. Specifically, the
Division stated that:
The allegations are not sufficiently supported in order to justify a
finding for the complainant. Our investigation does not
substantiate a causal nexus between the actions complained of
and the protected status of complainant as a member of any of the
classes as cited in this complaint.
On February 22, 2012, the U.S. Equal Employment Opportunity
Commission adopted the findings of the New York State Division and dismissed
Sullivan’s federal discrimination charge.
On April 4, 2012, Sullivan filed the present action, seeking relief under
42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the New York State Human Rights Law,
and the New York City Human Rights Law.
In response to defendant’s first motion to dismiss, Sullivan voluntarily
withdrew her state and local law claims, as well as her claims under Title VII
and the Age Discrimination in Employment Act. Sullivan confirmed her
withdrawal of these claims in her papers opposing defendants’ current motion.
Thus, the § 1983 claim is the only remaining claim. In the court’s February 21
order, the court declined to dismiss the § 1983 claim for failure to state a
claim. Defendants now move for judgment on the pleadings on the § 1983
The standard for granting a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) is identical to that of a Rule 12(b)(6)
motion for failure to state a claim. Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001). To survive a motion to dismiss under
Rule 12(b)(6), a complaint must plead sufficient facts to state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding a motion
under Rule 12(b)(6), a court must accept as true the facts alleged in the
complaint. Id. The court may, however, consider relevant filings with the
Equal Employment Opportunity Commission and analogous state agencies.
Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 565–66 (2d Cir. 2006), aff’d, 552
U.S. 389 (2008).
Generally, a plaintiff is precluded from relitigating issues that were
already decided in the course of a prior litigation against the same defendant.
When a state administrative agency, acting in a judicial capacity, resolves
disputed issues of fact properly before it, which the parties have had an
adequate opportunity to litigate, the courts will apply preclusion principles to
those decided issues. Univ. of Tennessee v. Elliott, 478 U.S. 788, 797–98
(1986). Unless the statute providing the cause of action instructs otherwise,
federal courts must give the agency’s fact finding the same preclusive effect to
which it would be entitled in the state’s courts. Id. at 799. In Elliot, the
Supreme Court precluded the plaintiff from relitigating the issue of
discrimination under § 1983 where a state administrative agency had already
found that the defendants’ actions were not discriminatory.
In DeCintio v. County of Westchester Medical Center, the Second Circuit
examined whether a § 1983 claim would be barred on the basis of an earlier
determination by the New York State Division of Human Rights that there was
no probable cause to believe that the plaintiff had been discriminated against
by his employer. 821 F.2d 111, 117–18 (2d Cir. 1987). The Second Circuit
held that under New York law administrative determinations are given
preclusive effect and applied that doctrine to a finding of the State’s Division of
Human Rights. Id. The Second Circuit held that issue preclusion applied and
upheld the dismissal of the § 1983 claim. Id.
Here, defendants argue that Sullivan is precluded from relitigating
whether her termination was the result of unlawful discrimination because the
New York State Division of Human Rights already concluded that defendants
did not discriminate against her. Because Sullivan has litigated the same
claim in front of the state Division and the Division issued a final finding that
defendants did not discriminate, the rule from DeCintio controls, and
defendants are entitled to a judgment on the pleadings.
Sullivan attempts to distinguish her case, contending (1) that she did not
have an adequate opportunity to litigate her claim and (2) that her current
§ 1983 claim is not sufficiently similar to her claim before the state agency.
The burden of proving identity of the issue rests on the defendants, while
Sullivan bears the burden of proving that she did not have a full and fair
opportunity to litigate the issue. Kosakow v. New Rochelle Radiology
Associates, P.C., 274 F.3d 706, 730 (2d Cir. 2001).
First, Sullivan argues that she did not have an adequate opportunity to
litigate her claim in front of the Division because there was not a formal
hearing. To support her claim, she relies on Kosakow v. New Rochelle
Radiology Associates, P.C., 274 F.3d at 733–36. In Kosakow, the Second
Circuit declined to give preclusive effect to a determination by the Division.
The court, looking to New York’s preclusion law, examined “the various
elements which make up the realities of litigation,” and found that they
weighed in favor of denying preclusive effect in that case. Id. at 734 (quoting
Schwartz v. Pub. Adm’r of Bronx Cnty., 246 N.E.2d 725, 729 (N.Y. 1969)). The
court held that because Kosakow proceeded pro se in front of the Division, did
not have access to evidence, did not understand the preclusive nature of the
proceeding, and could not frame the evidence in the context of legal arguments,
the Division’s decision should not bind Kosakow in a later federal court action.
The Second Circuit stated that, although relevant, lack of a formal hearing is
not a dispositive factor in evaluating the preclusive effect of the Division’s
decision. Id. at 735.
Sullivan’s case is easily distinguished from Kosakow. Most importantly,
Sullivan was represented by experienced counsel in front of the Division.
Counsel filed complaints with both state and federal agencies, revealing—at a
minimum—that counsel understood that the state and federal claims were
related. In front of the Division, Sullivan filed extensive briefs, framing her
allegations in the context of the law. Additionally, the record reveals that
Sullivan filed extensive briefing and presented rebuttal evidence directly
challenging defendants’ arguments in the agency. Although Sullivan did not
receive a hearing, that fact alone is not sufficient to deny preclusive effect to
the Division’s finding of no discrimination. And Sullivan has not explained how
a hearing would have altered the outcome or what facts could have been
brought out that may have changed the result.
Moreover, since Kosakow, courts in this circuit have reached the same
result under similar circumstances, giving preclusive effect to Division fact
finding. See, e.g., Johnson v. Cnty. of Nassau, 411 F. Supp. 2d 171, 183
(E.D.N.Y. 2006); Mendez v. City of New York Human Res. Admin., No. 04 Civ.
0559, 2005 WL 2739276, at *2–3 (S.D.N.Y. Oct. 24, 2005).
Second, Sullivan argues that the issue before the Division was not
identical to the issue before this court. If there issues are not identical, there
can be no preclusion. Sullivan contends that “nowhere within Plaintiff’s
[Division] complaint are there any allegations set forth that are germane to a
§ 1983 claim.” This argument is meritless. Sullivan’s claim before the Division
and her § 1983 claim both arise out of the same set of facts and are premised
on defendants’ alleged discrimination and retaliation against her. Courts
routinely find that allegations of discrimination brought before a state agency
are sufficiently identical to§ 1983 claims for purposes of preclusion. See, e.g.,
Elliott, 4 78 U.S. at 797-98; DeCintio, 821 F.2d at 117-18.
Defendants are entitled to judgment on the pleadings for Sullivan's
§ 1983 claim. Because there are no remaining claims, the clerk's office should
close the case.
This opinion resolves the motion listed as document number 22 in case
12 Civ. 2564.
Dated: New York, New York
March 26, 2014
Thomas P. Griesa
United States District Judge
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