Haygood v. Unity Health System et al

Filing 10

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 3 Motion to Dismiss for Lack of Jurisdiction and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/2/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

HAROLD L. HAYGOOD,
Plaintiff,
-vs-

No. 6:14-CV-6474(MAT)
DECISION AND ORDER

UNITY HEALTH SYSTEM, d/b/a
ACM MEDICAL LABORATORY, INC.,
and DAWN CRUZ, Homebound Services
Supervisor,
Defendants.

I.

Introduction
Represented

by

counsel,

Harold

L.

Haygood

(“Plaintiff”)

instituted this action, alleging that his former employer, ACM
Medical Laboratory, Inc. (“ACM”), and his supervisor at ACM, Dawn
Cruz

(“Cruz”)

(collectively,

“Defendants”)

discriminated

and

retaliated against him in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); the
Civil

Rights

Act

of

1866,

as

amended

by

the

Civil

Rights

Restoration Act of 1981, 42 U.S.C. § 1981 (“Section 1981"); and the
Human Rights Law of New York State, New York Executive Law § 296
(“the HRL”).
II.

Background
The following facts are drawn from the Complaint (“Compl.”)

[#1] and are assumed to be true for purposes of this Decision and
Order only.

A.

Plaintiff’s Employment

On July 11, 2011, Plaintiff, an African-American male, began
his employment with ACM as a Patient Services Senior Receptionist.
On August 31, 2011, he was promoted to a Homebound Services
Scheduling Specialist. Cruz, a Caucasian female, served as one of
the Plaintiff’s supervisors. On or about August 31, 2011, during a
training meeting relating to the Plaintiff’s new position, Cruz
stated, “‘I thought your black ass didn’t want to be here[.]’”
Compl.

¶

18.

Plaintiff

also

states

that

he

“witnessed,

or

overheard, on numerous occasions,” Cruz make “racially motivated
comments or remarks about, among others, the Defendant ACM’s
African/black Road Techs[.]” Compl. ¶ 22. For instance, Plaintiff
“witnessed or overheard” Cruz say that a female coworker was a
“black bitch” and that “some black people will never get it”. Id.
On July 19, 2013, Plaintiff took a leave of absence pursuant
to the Family Medical Leave Act (“FMLA”. On July 31, 2013, while on
FMLA

leave

Director,

the

Plaintiff

Diane

Wilson

contacted
(“Wilson”),

Associate
and

Human

“reported

Resource
racial

discrimination and harassment which he witnessed, or overheard, by
Supervisor Cruz, directed at, among others, some of the Defendant
ACM’s African/black Road Techs.” Id. ¶ 21.
After Plaintiff returned from leave on September 16, 2013,
Cruz “became more hostile[,]” id. ¶ 24, and he overheard her refer
to him as a “dumb nigga” after he had asked her for computer-

-2-

related assistance. Id. ¶ 25. Later on, Cruz said to Plaintiff,
“[t]he next time you’re [sic] stupid black ass goes to human
resource [sic] . . . .” Id. ¶ 26. Plaintiff believed that Cruz was
threatening him with termination if he complained to Wilson again.
On September 17, 2013, Cruz said to Plaintiff,

“[k]nock that

shit off or you’re going to be fired”. Plaintiff believed Cruz to
be referring to the complaint he made to Wilson about Cruz. Later
that same day, Supervisor Cruz stated to the Plaintiff that “black
people will never learn[.]” Id. ¶ 28.
On September 18, 2013, Plaintiff turned in his company cell
phone and identification and signed a letter of resignation.
B.

Proceedings at the State Level

On October 11, 2013, Plaintiff filed a claim with the Equal
Employment Opportunity Commission (“EEOC”) asserting that he had
been complained about being subjected to a hostile work environment
in July 2013, and was terminated in retaliation for doing so. This
claim (“Charge 1”) was dismissed because the EEOC was unable to
conclude that the information obtained during its investigation
established a violation of any civil rights law. The EEOC issued a
right-to-sue letter on January 30, 2014.
Also on October 11, 2013, Plaintiff filed a complaint with the
New York State Division of Human Rights (“the SDHR”) based upon the
same allegations in Charge 1. The SDHR dual-filed the complaint
(“Charge 2”) with the EEOC. In the course of its investigation, the

-3-

SDHR reviewed Plaintiff’s complaint and obtained the following
documents: a position statement from ACM dated November 14, 2013,
with fourteen exhibits; two rebuttal statements from Plaintiff; and
supplemental submissions from both parties with additional exhibits
and CD copies of recorded conversations between Plaintiff and ACM
employees. On December 20, 2013, the SDHR investigator Human Rights
Specialist II, Kalam Muttalib (“Inv. Muttalib”) conducted a TwoParty

Fact-Finding

testified.

Other

Conference.
witnesses

Plaintiff
included

appeared

Cruz,

pro

Wilson,

se

and

Cruz’s

supervisor, and ACM’s Human Resources Director.
Following the Fact-Finding Conference, Inv. Muttalib concluded
that there was no probable cause to support Charge 1 and issued a
Final Investigation Report (“the FIR”) (Defendants’ Exhibit (“Defs.
Ex.”) 11). The FIR was reviewed and adopted by the SDHR Regional
Director, who issued a Determination and Order on April 14, 2014,
dismissing Charge 1 in its entirety. Following the SDHR’s action on
Charge 1, the EEOC adopted the SDHR’s findings and dismissed Charge
EEOC 2. Plaintiff was issued a second right to sue letter on
May 20, 2014.
C.

The Federal Action

Plaintiff filed his six-count Complaint in this Court on
August 13, 2014. Presently before the Court is Defendants’ Motion
to Dismiss [#3] the Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Plaintiff filed a Memorandum of

-4-

Law in Opposition (“Pl’s Mem.”) [#7], and Defendants filed a Reply
[#8]. For the reasons discussed below, Defendants’ motion is
granted in its entirety, and the Complaint is dismissed with
prejudice.
III. Discussion
A.

Individual Liability of Cruz Under Title VII and the HRL

Plaintiff did not respond to Defendants’ arguments concerning
Cruz’s individual liability under Title VII and the HRL. Therefore,
the Court deems these claims alleging individual liability on the
part of Cruz to be abandoned. See, e.g., Rizzo-Puccio v. College
Auxiliary Servs., Inc., 216 F.3d 1073 (2d Cir. 2000) (claims not
addressed in opposition to defendants’ motion for summary judgment
were deemed abandoned). Counts III and IV, alleging violations of
Title VII (hostile work environment and retaliation, respectively),
are dismissed as abandoned as against Cruz. Counts V and VI,
alleging violations of the HRL (hostile work environment and
retaliation, respectively), likewise are dismissed as abandoned as
against Cruz.
B.

Timeliness of the Title VII Claims Against ACM
1.

Limitations Period in 42 U.S.C. § 2000e-5(f)(1)
(Defendants’ Point I)

Defendants argue that Plaintiff’s Title VII claims must be
dismissed because the 90-day statute of limitations prescribed by
42 U.S.C. § 2000e-5(f)(1) expired prior to the filing of the

-5-

Complaint. An affirmative defense based on a claim being barred by
the applicable statute of limitations “is properly treated as a
Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted rather than a Rule 12(b)(1) motion to
dismiss for lack of jurisdiction over the subject matter.” Ghartey
v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)
(“Where the dates in a complaint show that an action is barred by
a statute of limitations, a defendant may raise the affirmative
defense in a pre-answer motion to dismiss.”) (citations omitted).
In order to pursue a Title VII claim in federal court, a
plaintiff generally must comply with the limitations period in
42 U.S.C. § 2000e5(f)(1)):
If a charge filed with the [EEOC] . . . is dismissed by
the [EEOC], . . . the [EEOC], . . . shall so notify the
person aggrieved and within ninety days after the giving
of such notice a civil action may be brought against the
respondent named in the charge.
42 U.S.C. § 2000e-5(f)(1) (emphasis supplied). The phrase “after
the giving of such notice” in Section 2000e-5(f)(1) consistently
has been interpreted to mean that the limitations period runs from
the time that the plaintiff receives his right-to-sue letter. See,
e.g., Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994) (“[A]
suit must be commenced not more than 90 days after receipt of the
right-to-sue letter.”).
Where

an

employee

files

serial

EEOC

charges

presenting

identical allegations, he must commence an action within 90 days of

-6-

his receipt of the first EEOC right-to-sue letter. See Lo v. Pan
Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) (per
curiam) (plaintiff’s failure to bring action within 90 days of
first right-to-sue letter precluded action brought within 90 days
of second right-to-sue letter which was based upon charge involving
the same facts as first notice; otherwise, 90-day time limit would
be meaningless).Here, Plaintiff filed two identical charges with
the EEOC.

See

Affidavit

of

Daniel

Moore (“Moore

Aff.”)

[#3]

¶¶ 18-19, 23 & Defs. Exs. 2, 4. The EEOC issued its first right-tosue letter (“Letter 1”) with respect to the Charge 1 on January 30,
2014. Id. ¶ 21 & Defs. Ex. 3. When a government agency such as the
EEOC mails a notice, there is a presumption that it was mailed on
the date shown on the document, and a plaintiff is presumed to have
received a right to sue letter three (3) days after the date of its
mailing. Sherlock v. Montefiore Med. Ctr., 84 F.2d 522, 525-26
(2d Cir. 1996). Three days from January 30, 2014, is Sunday,
February 2, 2014. Absent any contrary evidence, the Court will
presume

that

February

3,

Plaintiff
2014.

See

received
FED.

R.

the

First

CIV.

P.

Letter

6(e).

on

Monday,

Accordingly,

Plaintiff’s time to file suit expired 90 days later on Sunday,
May 4, 2014. However, Plaintiff did not commence this action until
August 13, 2014, 101 days after the expiration of the limitations
period on May 4, 2014.

-7-

2.

Equitable Tolling

The time limitations in Title VII for filing with the EEOC are
not jurisdictional and are subject to “waiver, estoppel, and
equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982). Plaintiff concedes that he did not file his
Complaint in a timely fashion, see Haygood Decl. ¶¶ 15-16, but
argues that he is entitled to equitable tolling because he received
“inadequate notice” of his rights from the EEOC. Plaintiff cites
the “Dismissal and Notice of Rights,” see id. ¶ 14, as being
unclear.
After examining the EEOC’s right to sue letter, it is apparent
to the Court that it provided adequate notice to Plaintiff of his
rights. The letter instructed Plaintiff that any lawsuit he wished
to file “under federal law . . . must be filed WITHIN 90 DAYS of
your receipt of this notice; or your right to sue based on this
charge will be lost.” Ex. 3 to Moore Aff. (emphasis in original).
The Court agrees with Defendants that the letter “conspicuously
advised”

Plaintiff

of

the

90-day

filing

requirement

and

the

consequences of failing to comply with it. Plaintiff’s reliance on
Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974), is
misplaced. In that case, the EEOC’s letter sent to the employee did
not advise her of the applicable limitations period for filing her
federal lawsuit. See id. at 295 (“While this letter informed
appellee that the Commission was closing her case for lack of
-8-

jurisdiction, it did not advise her that she could commence an
action in the District Court within 30 days. In neglecting to so
advise appellee, the Commission failed to comply with Section
1601.25 of its own regulations.”). Here, as noted above, Plaintiff
concedes having received the right-to-sue letter, which informed
him of the 90-day deadline and cautioned him that his right to sue
based on the allegations in the EEOC charge would be forfeited for
failing to timely file in federal court.
Plaintiff

also

asserts

entitlement

to

equitable

tolling

because “Linda”, an alleged employee with the SDHR, provided him
with incorrect information. See Haygood Decl. ¶¶ 15-16. Defendants
argue that this uncorroborated allegation is too vague to qualify
for tolling. The Court agrees. See, e.g., Stephens v. Salvation
Army, No. 04 Civ. 1697(NKF), 2006 WL 2788245, at *3 (S.D.N.Y.
Sept.

26,

2009)

(rejecting

as

“vague

and

uncorroborated”

plaintiff’s factual assertions that complaint was untimely because
“incorrect information [was] provided to him by the unidentified
pro se clerk concerning the impact that weekends and holidays would
have on the calculation of the statutory 90-day filing period”),
aff’d, 313 F. App’x 421 (2d Cir. 2009) (finding plaintiff’s claims
“meritless for substantially the reasons stated by the District
Court”). Indeed, the record before the Court is devoid facts that
show

that

Plaintiff

was

subjected

to

rare,

exceptional

or

extraordinary circumstances that require invocation of equitable

-9-

tolling. Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d
74, 80 (2d Cir. 2003) (stating that “equitable tolling is only
appropriate ‘in [ ] rare and exceptional circumstance[s],’ in which
a party is ‘prevented in some extraordinary way from exercising his
rights[.]”) (internal quotations and citations omitted; alterations
in original).
In sum, the Court finds that Plaintiff’s Title VII claims are
untimely,

and that

he

is

not

entitled to

equitable tolling.

Accordingly, the Court dismisses with prejudice Count III, which
alleges a hostile work environment claim under Title VII against
ACM only, and Count IV, which alleges retaliation under Title VII
against ACM only. Based on this ruling, the Court need not consider
Defendants’ alternative arguments in Point IV of their brief that
Plaintiff has failed to state a plausible claim for relief and that
these causes of action must be dismissed pursuant to Rule 12(b)(6).
B.

Lack of Subject Matter Jurisdiction over HRL Claims
(Defendants’ Point II)

Defendants argue that Plaintiff’s filing of a charge with the
SDHR deprives this Court of subject matter jurisdiction over
Plaintiff’s claims brought pursuant to the HRL. Courts in this
Circuit have

held

that

New

York

Executive

Law

(“Exec. Law”)

§ 297(9) generally provides a jurisdictional bar to judicial
resolution

once

a

plaintiff

has

brought

his

state-law

discrimination claim before the SDHR. See, e.g., Harrison v.
New York City Off-Track Betting Corp., 107 F. Supp.2d 455, 457-58
-10-

(S.D.N.Y. 2000) (dismissing claims under the state and municipal
human rights laws based on plaintiff’s election of remedies under
present version of Exec. Law § 297 where SDHR made finding of no
probable cause). This bar to suit is jurisdictional. Moodie v.
Federal Reserve Bank of N.Y., 58 F.3d 879, 883-84 (2d Cir. 1995).
Plaintiff does not address Defendants’ argument regarding
Exec.

Law

§

297(9)’s

preclusive

effect

on

his

HRL

claims.

Plaintiff’s HRL claims therefore are deemed abandoned. See, e.g.,
Dineen v. Stramka, 228 F. Supp.2d 447, 454 (S.D.N.Y. 2002) (finding
that plaintiff’s failure to address claims in opposition papers
“enabl[es] the Court to conclude that [plaintiff] has abandoned
them”). Accordingly, the Court dismisses with prejudice Count V
alleging a hostile work environment claim under the HRL against all
Defendants as well as Count VI alleging retaliation under the HRL
against all Defendants.
C.

Claim Preclusion and Issue Preclusion With Regard to
Section 1981 Claims (Defendants’ Point III)

Defendants argue that Plaintiff’s § 1981 claims are barred by
the doctrines of res judicata (claim preclusion) and collateral
estoppel (issue preclusion) based on the SDHR’s prior determination
of “no probable cause” regarding those claims. Plaintiff argues
that res judicata is inapplicable because he was not afforded a
full opportunity to establish Cruz’s liability. See Pl’s Mem. at 5.
However, Plaintiff does not argue that he was denied a full

-11-

opportunity to establish ACM’s liability. Plaintiff further argues
that res judicata does not apply because he now seeks damages that
were unavailable in the SDHR proceeding. With regard to collateral
estoppel, Plaintiff asserts that this doctrine does not apply
because he was “never afforded a full opportunity to present his
contentions” to the SDHR. Pl’s Mem. at 8.
As an initial matter, the Court notes that the documents filed
with the EEOC and the records of the SDHR proceeding, upon which
both Defendants and Plaintiff rely in making their res judicata and
collateral estoppel arguments, are properly considered on this
motion to dismiss. See, e.g., Evans v. New York Botanical Garden,
No. 02 Civ.3591 RWS,

2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4,

2002) (on motion to dismiss, finding it appropriate to consider
records filed and produced during plaintiff’s SDHR proceeding;
these exhibits all were public records of an administrative body,
of which judicial notice could be taken without converting motion
into one for summary judgment) (citing, inter alia, Mack v. South
Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) (“[A] court
may take judicial notice of ‘records and reports of administrative
bodies.’”’), overruled on other grounds, Astoria Fed. Sav. & Loan
Ass’n v. Solimino, 501 U.S. 104, 111 (1991)).
Under the doctrine of collateral estoppel, relitigation of
issues identical to those raised and necessarily decided in a prior
proceeding on a different claim is precluded. See, e.g., Ryan v.

-12-

New York Tel. Co., 62 N.Y.2d 494, 500 (1984). The Supreme Court has
held that when a state agency “‘acting in a judicial capacity . .
. resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate,’” University
of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (quotation
omitted; ellipsis in original)), “federal courts must give the
agency’s factfinding the same preclusive effect to which it would
be entitled in the State’s courts.” Id. (footnote omitted).1 As a
matter

of

State

law,

New

York

State

courts

will

award

the

quasi-judicial determinations of administrative agencies such as
the

SDHR

preclusive

effect

“when

rendered

pursuant

to

the

adjudicatory authority of an agency to decide cases brought before
its tribunals employing procedures substantially similar to those
used in a court of law.” Ryan, 62 N.Y.2d at 499 (citations
omitted). Defendants, as proponents of collateral estoppel, bear
the burden of demonstrating “the identicality and decisiveness of
the issue.” Id. at 501 (citations omitted).
Plaintiff here confines his argument to the “full opportunity”
element of the collateral estoppel test, see Pl’s Mem. at 8-9, and
does not argue that “identicality and decisiveness” of the issues
are lacking. Arguably, then, Plaintiff has conceded the point. See,

1

“The holding in Elliott[, 478 U.S. 788] as to the preclusive effect of
administrative rulings specifically applied to an action brought under . . . 42
U.S.C. §§ 1981, 1983, 1985, 1986 and 1988[.]” DeCintio v. Westchester County
Medical Ctr., 821 F.2d 111, 118 n. 3 (2d Cir. 1987) (citation omitted).

-13-

e.g., Iannuzzi v. American Mortg. Network, Inc., 727 F. Supp.2d
125, 139 & n. 19 (E.D.N.Y. 2010) (“[P]laintiffs do not respond in
their papers to defendants’ argument that Dawson was not an agent
of CCC and, therefore, that no duty of Dawson's could be imputed to
CCC. Thus, any breach of fiduciary duty claim against CCC based on
this

theory

is

deemed

to

be

abandoned

and/or

withdrawn.”)

(collecting cases). Even were Plaintiff to contest these elements,
the record negates such a challenge because the present claims of
discrimination and retaliation are the same as those which were
considered by the SDHR. The critical issues before the SDHR, as
here, were whether Plaintiff was constructively discharged due to
ACM’s and Cruz’s creation of a hostile work environment and whether
Plaintiff was retaliated against for complaining about workplace
discrimination. The hostile work environment and retaliation issues
underlying the present Section 1981 claims “are identical to those
actually determined by the SDHR2 and essential to its determination
of no probable cause.” Mendoza v. SSC & B Lintas, N.Y., 799 F.
Supp. 1502, 1510-11 (S.D.N.Y. 1992) (footnote omitted).
Plaintiff also does not contest that SDHR was acting pursuant
to

its

“adjudicatory

authority”

and

employed

“procedures

2

Following its investigation into Plaintiff’s charge, the SDHR made a number
of findings, which compelled its conclusion that there was no probable cause to
believe that Defendants engaged in unlawful discriminatory practices. Among other
things, the SDHR found that Plaintiff voluntarily resigned from his position;
that he had gotten along well with Cruz and had never complained about race
discrimination at ACM until after his resignation; and that he was not subjected
to pervasive and persistent hostile working conditions during his time at ACM.
See Mendoza, 79 F. Supp at 1510 n.4.

-14-

substantially similar to those used in a court of law.” Ryan, 62
N.Y.2d at 499. Courts in this Circuit have held that the SDHR
“procedures satisfy the requirements that its investigation be
pursuant

to

the

adjudicatory

authority

and

that

there

be

a

‘substantial similarity to those used in a court of law.’” Evans,
2002 WL 31002814, at *5 (citing Mendoza, 799 F. Supp. at 1510 & n.
5; Ibrahim v. New York State Dep’t of Health, 692 F. Supp. 1471,
1473 (E.D.N.Y. 1988)). Defendants therefore have met their burden
under the collateral estoppel analysis.
Plaintiff, as the opponent of collateral estoppel, bears the
burden of establishing “the absence of a full and fair opportunity
to

litigate

the

62 N.Y.2d at 501.

issue

in

prior

action

or

proceeding.” Ryan,

Whether a SDHR proceeding that has not been

reviewed by a state court provided the requisite “full and fair
opportunity” involves consideration of several factors, including
“the nature of the forum; the importance of the issue in the prior
proceeding; the incentive and initiative to litigate the issue and
the actual extent of such litigation; the competence and expertise
of

counsel;

the

availability

of

new

evidence;

and

the

foreseeability of future litigation.” Schweizer v. Mulvehill, 93 F.
Supp.2d 376, 390 (S.D.N.Y. 2000) (citing Gilberg v. Barbieri,
53 N.Y.2d 285, 292 (1981); other citations omitted). Plaintiff
asserts that he was denied such an opportunity because (1) he was
pro se; (2) discovery before the SDHR “was significantly limited”

-15-

to

“document

production”

and

a

hearing;

(3)

he

lacked

an

opportunity to submit interrogatories, depose witnesses, or crossexamine ACM’s witnesses; and (4) SDHR did not question any of the
“ten individuals listed in his charge” who allegedly would have
supported his hostile work environment claim.
While Plaintiff’s pro se status before the SDHR weighs in his
favor, it is not dispositive, for lack of counsel in a prior
proceeding “does not impugn the process he received before the
SDHR.” Mendoza, 799 F. Supp. at 1511 (citing DeCintio, 821 F.2d at
116). The Second Circuit has observed that “[t]he SDHR does not
make a probable cause determination until the complainant has had
‘full opportunity to present on the record, though informally, his
charges against his employer or other respondent, including the
right to submit all exhibits which he wishes to present and
testimony

of

witnesses

in

addition

to

his

own

testimony.’”

DeCintio, 821 F. 2d at 117 (quotation omitted)). Even assuming that
it was clear that Plaintiff wanted Inv. Muttalib to call the
unnamed ten witnesses in his EEOC charge, the failure to do so does
not

render

his

opportunity

to

litigate

less

than

“full”,3

especially where Plaintiff has not identified how these individuals

3

See Mendoza, 799 F. Supp. at 1511 (SDHR investigator’s failure to subpoena
two witnesses was “not fatal”) (citing Kirkland, 828 F.2d at 108-09 (finding full
and fair opportunity where SDHR received sworn statements on complainant’s
behalf, took testimony from him while he was accompanied by counsel, contacted
a number of his suggested witnesses, and received portions of depositions and
trial transcripts from his federal lawsuits); Ward v. Harte, 794 F. Supp. 109,
117 (S.D.N.Y. 1992)).

-16-

would have helped him substantiate his charge of discrimination.
The remaining relevant factors lead this Court to conclude that
Plaintiff received a full and fair opportunity to litigate his
claims. First, Plaintiff downplays significantly the extent of
discovery conducted during the SDHR proceeding. The “document
production” comprised a position statement from ACM with fourteen
exhibits; two rebuttal statements from Plaintiff; supplemental
submissions from both parties with additional exhibits; and CD
copies of tape-recorded conversations between Plaintiff and ACM
employees. See Exs. 6-9 to Moore Aff. Plaintiff’s assertion that he
was denied the opportunity to testify about his retaliation claim
at the SDHR’s two-party fact-finding conference is belied by the
record.4

With

regard

to

the

lack

of

opportunity

to

confront

witnesses, the Second Circuit has rejected the notion that a formal
adversarial

hearing

with

the

opportunity

to

cross-examination

witnesses is necessary to invoke collateral estoppel. Kirkland v.
City of Peekskill, 828 F.2d 104, 107-09 (2d Cir. 1987).
In sum, the Court is unconvinced that Plaintiff has met his
burden of “‘establishing that he did not have a full and fair

4

In his FIR, Inv. Muttalib noted that during the fact-finding conference
Plaintiff stated that he had complained about Cruz, and “it [was] his belief that
the Human Resources Manager related his complaint to Ms. Cruz who began to
retaliate against him. . . . [Plaintiff] did not say that his July, 2013
complaint had anything to do with discrimination but, according to respondent,
had to do more with gossip and hearsay going on in the workplace. [Plaintiff] did
not offer anything to offset the respondent’s contention that he voluntarily
resided from his position after being questioned about his whereabouts during an
FMLA leave in August, 2013.” Defs’ Ex. 11.

-17-

opportunity to litigate,’” Ibrahim v. New York State Dept. of
Health, 692 F. Supp. 1471, 1473 (E.D.N.Y. 1988) (quoting DeCintio,
821

F.2d

at

118;

emphasis

in

original).

Plaintiff

had

the

opportunity to present a range of evidence, including documents and
tape-recorded

conversations,

to

the

SDHR,

which

conducted

a

thorough investigation, held a two-party fact-finding conference,
and

issued

a

decision

detailing

its

review

of

the

evidence

presented and the grounds for its determination that there was no
“conclusive evidence that the complainant was discriminated against
on the basis of his race or retaliated against because he opposed
discrimination in the workplace.” Defs’ Ex. 11. The Court finds
that the procedures that the SDHR employed in Plaintiff’s case
“were sufficient both quantitatively and qualitatively, so as to
permit confidence that the facts asserted were adequately tested,
and that the issue was fully aired.” Allied Chemical v. Niagara
Mohawk Power Corp., 72 N.Y.2d 271, 276–77 (1988).
In sum, the Court finds that the doctrine of collateral
estoppel precludes Plaintiff’s claims under Section 1981. In light
of this ruling, the Court need not consider Defendants’ alternative
arguments that res judicata bars consideration of these claims and
that the Complaint has failed to allege plausible claims for
hostile

work

environment

and

retaliation

under

Section

1981.

Accordingly, the Court dismisses with prejudice Count I alleging a
hostile work environment claim under Section 1981 against all

-18-

Defendants as well as Count II alleging a retaliation claim under
Section 1981 against all Defendants.
V.

Conclusion
For the reasons discussed above, the Court grants, in full,

Defendants’ Motion to Dismiss. The Complaint is dismissed in its
entirety. The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

June 2, 2015
Rochester, New York

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