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holding that section 3813 does not apply to those claims against school principal because he is not an “officer” within the meaning of the statute
Summary of this case from Sotomayor v. City of New YorkOpinion
99 Civ. 12172 (RJH) (MHD).
March 30, 2005
Memorandum Opinion and Order
This is an employment discrimination case. In 1994, plaintiff Idalia Richards was assigned to Community Elementary School 235 ("School 235") in the Bronx as a probationary bilingual guidance counselor. In 1998, the New York City Board of Education (the "Board") declined to offer Richards a tenured position, terminated her employment, and replaced her with a younger employee who did not speak Spanish. In response, Richards brought this employment discrimination action against the Board, along with Rosa Calvet, the principal at School 235 during the relevant time period, alleging that her termination violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"), the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), Sections 1981 and 1983 of Title 42 of the United States Code, the New York Human Rights Law, codified at N.Y. Exec. Law § 290 et seq. ("SHRL"), and Title 8 of he Administrative Code of the City of New York, commonly referred to as the New York City Human Rights Law ("CHRL").
Defendants have moved for summary judgment on several grounds: first, that plaintiff's Title VII, ADEA, SHRL and CHRL claims are time-barred; second, that plaintiff cannot establish a prima facie case of discrimination; third, that the SHRL and CHRL claims are barred by the election of remedies and notice of claim requirements of N.Y. Educ. Law § 3813(2); and fourth, that plaintiff failed to mitigate her damages. On December 1, 2004, Magistrate Judge Michael H. Dolinger issued a Report and Recommendation (the "Report"), recommending that summary judgment be granted with respect to (i) the § 1983 claims against the Board and against Calvet in her official capacity, and (ii) the SHRL and CHRL claims against the Board. The Report recommended that the motion be denied in all other respects.
Defendants filed timely objections to the Report and plaintiff responded. Having considered the objections and supporting papers, and having conducted a de novo review of the original motion papers and record, the Court adopts Judge Dolinger's well-reasoned recommendations, with one exception: summary judgment is also granted with respect to plaintiff's § 1981 claim against the Board and against Calvet in her official capacity.
I. Background
The Report extensively outlines the procedural history and facts of the case, which, with limited exception, are not in dispute. ( See Report, pp. 1-25). Accordingly, and consistent with the purpose of the Federal Magistrates Act to "promote efficiency of the judiciary," the Court will assume familiarity with the Report rather than compose what would be a largely redundant background section. The Report is attached in its entirety at the end of this opinion.
II. Standard of Review
A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Where neither party makes a timely objection to the magistrate judge's findings, a district court "'need only satisfy itself that there is no clear error on the face of the record.'" Johnson v. Reno, 143 F.Supp.2d 389, 391 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted)); see also Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F.Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").
The nature and depth of that review depends on the tenor and specificity of the objections. Where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," reviewing courts should review a report and recommendation for clear error. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. 2002); See also Barratt v. Joie, 2002 WL 335014, at * 1 (S.D.N.Y. Mar. 4, 2002) ("When a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.") (citation omitted). On the other hand, where objections to a report are "specific and . . . address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992).
Defendants have objected to the Report on several grounds, which, given their nature, the Court will review de novo rather than for clear error. Those objections are as follows: (i) that "the undisputed record shows that plaintiff's Title VII, ADEA, SHRL, and CHRL claims are time-barred." (Def. Obj. to RR., p. 2 "Obj."); (ii) that plaintiff "fail[ed] to establish a prima face case of discrimination and/or to overcome record evidence documenting defendants' legitimate business reasons for denying plaintiff completion of probation." ( Id.); (iii) that plaintiff's SHRL, CHRL, and § 1981 claims are collaterally estopped by the Equal Employment Opportunity Commission's decision to "reject plaintiff's claims of discrimination when the case was pending there." ( Id.); (iv) that the § 1981 claims fail against the Board for the same reason Judge Dolinger found that the § 1983 claims fail, namely, because plaintiff failed to raise a genuine issue of material fact with respect to a municipal policy or custom that led to the alleged denial of her constitutional rights; ( Id., pp. 2-3) (v) that the SHRL and CHRL claims against Ms. Calvet cannot stand because plaintiff failed to file a timely notice of claim under N.Y. Educ. Law § 3813 ( Id.); and finally (vi) that plaintiff's claims for back and front pay should be dismissed because she failed to adequately mitigate her damages ( Id., p. 3).
III. Discussion
The Court will address defendants' objections seriatim.
A. Timeliness of the Title VII and ADEA Claims
Defendants first object to the Report on the ground that plaintiff's Title VII and ADEA claims are time barred because they were not filed within 300 days of her allegedly wrongful termination, as required by 29 U.S.C. § 626 (ADEA) and 42 U.S.C. § 2000e-5(e) (Title VII). See also Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999). As the Second Circuit observed in Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000), the time for filing a claim with the EEOC "starts running on the date when the employee receives a definite notice of the termination, not upon his discharge." Id. ( citing Miller v. International Tel. Tel. Corp., 755 F.2d 20, 23 (2d Cir. 1985)). The crux of defendants' timeliness claim is that plaintiff was "aware that her probationary period was being discontinued" as of January 30, 1998, the date on which plaintiff's union representative completed and submitted an Unsatisfactory Rating Appeal Intake Form ("Intake Form"). This argument has been considered — and rejected — on two previous occasions. Thus, the Court will address the issue only briefly on this third occasion.
As Judge Dolinger notes, in advancing this argument on summary judgment, defendants "generally repeat the argument they made unsuccessfully in their 2002 motion to dismiss." (Report, p. 28). That argument was previously considered and rejected by Judge Dolinger in his April 4, 2002 Report and Recommendation, as well as by Judge Stein, who adopted the recommendations of the 2002 Report.
The Intake Form was executed in response to a January 29, 1998 performance appraisal, whereby Calvet rated plaintiff's job performance as "unsatisfactory" and recommended that she be denied tenure. Defendants argue that the existence of the Intake Form demonstrates "indisputably" that plaintiff had notice of her termination on January 30. (Obj., p. 5). To be sure, the Intake Form may be evidence that plaintiff was aware of her impending termination, but, as Judge Dolinger noted, "the union intake report, prepared in advance of filing a grievance, was not a notification by the employer to the employee of an adverse employment decision and does not answer the question of when the defendants communicated their termination decision to Richards." (Report, p. 30). The Court agrees that the Intake Form was not equivalent to notice, and therefore rejects the argument.
The three additional facts defendants identify in support of their timeliness claim are similarly unpersuasive. First, defendants contend that the complaint plaintiff filed with the New York State Division of Human Rights ("SDHR Complaint") is probative of the fact that she was aware of the termination decision on January 30, 1998 because it states at paragraph 4: "On January 30, 1998, Ms. Calvet denied me tenure." Second, defendants argue that a letter signed by a member of plaintiff's union grievance panel is evidence of notice on January 31, 1998 because the author of the letter notes that plaintiff was "dismiss[ed] . . . one day before her tenure" on February 1, 1998. Finally, defendants argue that plaintiff's own deposition testimony is sufficient to establish that she had actual notice of her termination on or before January 30, 1998. In particular, defendants argue that the following exchange "contradicts" the portions of plaintiff's later affidavit stating that she didn't get notice of her termination until on or after February 2:
Q: On the next page . . . you say that your probationary period was discontinued the very day it was supposed to have ended. What do you mean by that . . .?
A: On January the 30th a recommendation was made by [Ms. Calvet] to the superintendent to discontinue my probationary period. And my tenure started on the first of February . . .
Q: How do you know the papers were sent to the superintendent on January 30th?
A: Well, January 30th was when the papers were given to me . . .
(Richards Dep., p. 89, attached as Exhibit C to December 6, 2002 Decl. of Donald C. Sullivan).
All three of these facts are red herrings. As noted at the outset, the issue is when plaintiff "receive[ed] a definite notice of the termination," Flaherty at 137 (emphasis added), not when she was actually terminated, or when she received notice of Calvet's recommendation, which is clearly what is being referred to as "the papers" in the above deposition excerpt. Thus, none of these additional facts is helpful to defendants, and the Court finds that — based on the record as it now stands — plaintiff's Title VII and ADEA claims are timely.
B. Timeliness of the SHRL and CHRL Claims
Defendants next turn their attention to Judge Dolinger's conclusion that plaintiff's SHRL and CHRL claims were timely. In particular, defendants object to the Report on the ground that Judge Dolinger "misunderstood [their] arguments regarding the untimeliness of plaintiff's SHRL and CHRL claims against . . . Calvet, and erroneously concluded that this argument was based on the date of plaintiff's administrative filing with the New York State Division of Human Rights ('SDHR')." (Obj., p. 7). Defendants purport to clear up the confusion by explaining that plaintiff's SHRL and CHRL claims are untimely because she "failed to file her lawsuit within one year and ninety days of the alleged discriminatory acts," as required by New York Educ. Law § 3813(2) and Section 50-i(1) of the General Municipal Law.
N.Y. Educ. Law § 3813(2) states in pertinent part:
[N]o action or special proceeding founded upon tort shall be prosecuted or maintained against any [board of education or employee of a board of education] . . . unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. Every such action shall be commenced pursuant to the provisions of section fifty-i of the general municipal law.
N.Y. Educ. Law § 3813(2).
Section 50-i(1) of the General Municipal Law provides in relevant part:
No action or special proceeding shall be prosecuted or maintained against a . . . school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such . . . school district or of any officer, agent, or employee thereof, . . . unless . . . (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based . . .
N.Y. Gen. Mun. Law § 50-i(1).
This objection is premised on a fundamental misunderstanding of Section 50-i(1). None of plaintiff's claims are "for personal injury, wrongful death or damage to real or personal property," which means — as Judge Dolinger noted, and as a matter of basic statutory interpretation — that the limitation period set forth in Section 50-i(1) of the General Municipal Law does not apply to any of plaintiff's claims. Rather, as the New York Court of Appeals noted in Koerner v. State of New York, 62 N.Y.2d 442 (1994), New York's general three-year limitation applies to the SHRL claims. Koerner, at 446; see also N.Y.C.P.L.R. § 214(2) (actions to recover liability or penalty created or imposed by statute is subject to three year limitation period); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) ("[plaintiff's] cause of action under New York's Human Rights Law is governed by a three-year statute of limitations, measured from the filing of the action in court.") ( citing N.Y.C.P.L.R. § 214(2); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)). The same holds true for plaintiff's CHRL claims. Greene v. Trustees of Columbia University, 234 F.Supp.2d 368, 377 (S.D.N.Y. 2002) ("The statute of limitations for a discrimination action under the . . . Civil Rights Law of the City of New York, Title 8 of the New York City Administrative Code, ('CRL') is three years.") (citations omitted). Accordingly, because plaintiff's SHRL and CHRL claims were filed within three years of her termination, they are timely.
C. Same Actor Defense
Defendants next contend that the "same actor" defense precludes plaintiff from establishing a prima facie case for discrimination because Calvet both hired and fired plaintiff. As the Second Circuit observed in Jetter v. Knothe Corp., 324 F.3d 73 (2d Cir. 2003), "when the person who made the decision to fire was the same person who made the decision to hire, especially when the firing occurred only a short time after the hiring, it is difficult to impute [to the decisionmaker] an invidious firing motivation that would be inconsistent with [the] decision to hire." Jetter, at 76 (citation omitted). Although plaintiff was originally hired well before Calvet became principal of School 235, it appears that she was technically rehired at the conclusion of the 1996-1997 school year as a result of a school-wide redesign program, a process which required all teachers to reapply for their jobs. (the "Redesign"). (Report, p. 13).
To be sure, it is somewhat unclear who officially "rehired" plaintiff as a result of the Redesign. Defendants argue that it was Calvet, and contend that plaintiff admitted as much at her deposition, citing the following exchange in support:
Q: Did Ms. Calvet rehire you?
A: The Committee, the Committee rehired me.
Q: Was Ms. Calvet on the Committee?
A: And I — I think that she set up the Committee — she named the people to this Committee. I don't know exactly what the procedure was . . .
Q: Well, Ms. Calvet set up a committee and the Committee rehired you, is that right?
A: Yes.
Q: So Ms. Calvet rehired you [in June of '97]?
A: Yes, sir.
(Report, pp. 13-14; see also Obj., p. 10). In an effort to dispel her obvious confusion, plaintiff has submitted an affidavit in which she notes that Calvet "merely notified me in writing of the . . . Committee's decision," clarifying that it was the Committee — not Calvet — who technically rehired her. (Report, p. 38). Defendants characterize the affidavit as "a desperate attempt to avoid" the above deposition testimony, which is allegedly "diametrically opposite" to the affidavit. (Obj., pp. 9-10). Relying on Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997), defendants contend that the Court must reject the affidavit version.
In Raskin, the Second Circuit explained that "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Raskin, at 63. However, as Judge Dolinger noted, it is clear that Raskin does not apply where a subsequent statement is designed to clarify an issue that was not thoroughly or clearly resolved in a deposition. See Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (noting that Raskin principle does not apply "where the later sworn assertion" does not actually contradict the earlier statement, such as where it "addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition.") (citation omitted). Having compared plaintiff's statements, the Court finds that the later sworn statement serves to clarify the deposition excerpt cited above, which takes it outside the scope of Raskin. Accordingly, because there is a genuine issue of material fact with respect to who hired plaintiff after the Redesign, summary judgment is not appropriate on the basis of the same-actor defense.
D. Pretext and Discriminatory Animus
Aside from attempting to invoke the same actor defense, defendants do not object with any specificity to Judge Dolinger's conclusion that plaintiff has established a prima facie case of discrimination, which requires that plaintiff demonstrate that she (1) is in a protected class; (2) was qualified for the job; (3) experienced an adverse employment action; and (4) that the adverse employment action occurred under circumstances supporting an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); ( see generally, Report, pp. 32-35). Neither does plaintiff object to Judge Dolinger's conclusion that defendants have rebutted that showing by "articulating a legitimate, non-discriminatory reason for the employment action," namely, that plaintiff received consistently poor performance evaluations over a multi-year period. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Accordingly, and because the Court agrees with both conclusions, those findings are adopted.
At this stage of the proceedings, then, plaintiff "must demonstrate a triable issue as to whether defendants were motivated by age- or race-based animus in deciding to terminate her." (Report, p. 43). In this regard, the Supreme Court has made clear that "[a]lthough intermediate evidentiary burdens shift back and forth" under the McDonnell Douglas framework, 411 U.S., at 802, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated remains at all times with the plaintiff." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (citation omitted). In this case, considering the record as a whole, and construing all ambiguities in plaintiff's favor, Judge Dolinger concluded that plaintiff had met her burden by presenting sufficient evidence from which a reasonable jury could find (i) that defendants' proffered neutral explanation of plaintiff's termination is pretextual, and (ii) that "animus to plaintiff's age or race was a motivating factor" in her termination. (Report, p. 44). See Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (upholding district court's dismissal of ADEA claim on summary judgment where plaintiff failed to show both pretext and age-based animus, but recognizing that there is no per se rule that both showings be made). Defendants object to both conclusions.
The thrust of defendants' argument is that the record is devoid of any evidence that would tend to show animus. To the extent this objection implies that ADEA claimants must show animus to survive summary judgment, it is based on a mistaken interpretation of the Supreme Court's ruling in Reeves, 530 U.S. 133 (2000), and the Second Circuit's application of Reeves in Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). In Reeves, the Supreme Court announced that "in appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [proffered] explanation" that an employer is "dissembling to cover up a discriminatory purpose," thus rejecting the notion that "a defendant is entitled to judgment as a matter of law when the plaintiff's case consists exclusively of a prima facie case of discrimination and [pretext]." Reeves, at 137; Schnabel, at 89. Under some circumstances, then, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Schnabel, at 89-90 (emphasis removed).
As the Second Circuit observed in Schnabel, "the Supreme Court's decision in Reeves clearly mandates a case-by-case approach" to the question of when an ADEA claim can proceed on pretext alone. Id., at 90. Several factors are relevant, including "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves, at 148-49. In Schnabel, the Second Circuit applied these factors and concluded that pretext by itself was not enough where the plaintiff (i) "[did] not contend that his age was discussed by [his employer]"; (ii) "failed to offer any evidence that he was subjected to any age-related comments or criticisms on the job"; (iii) "was fired by the same man who had hired him [only] three years earlier; and (iv) "was replaced by the person whom he originally had replaced" based on objective evidence that the former employee was better suited for the job. Schnabel, at 91. For these reasons, the Schnabel court determined that plaintiff's case was "far weaker than was Reeves's," and therefore declined to follow Reeves by allowing plaintiff's claim to proceed on pretext alone. Schnabel, at 91.
The question raised by defendants' objections, then, is whether Judge Dolinger correctly concluded either that (i) plaintiff's case could proceed on evidence of pretext alone; or that (ii) even if more was required, plaintiff has carried her burden by otherwise demonstrating "evidence upon which a reasonable trier or fact could base the conclusion that age was a determinative factor in" the Board's decision to fire her. Id., at 90. Considering the record as a whole, Judge Dolinger determined that the following evidence was sufficient to send the case to a jury: first, that plaintiff received satisfactory performance evaluations for two years prior to Calvet's appearance at School 235; second, that Calvet's purported explanation of plaintiff's unsatisfactory performance is weak and unsupported by other evidence, and often deviates from the expected or accepted review process; and third, that plaintiff was replaced by a white woman approximately twenty years younger who did not speak Spanish, this in spite of the fact that the woman was hired to be a bilingual counselor in a school where one-third of the students were bilingual. ( See generally, Report, pp. 44-50). As the Report aptly concludes:
In addition, plaintiff claims that at one point Ms. Calvet asked how old she was, making available the inference that it was a factor in her letter recommendation to terminate plaintiff. To be sure, defendants correctly note that "a single question Ms. Calvet purportedly asked plaintiff about her age" is not enough, by itself, to establish animus. But defendants ignore the larger context in which the statement must be viewed. (Obj., p. 10). In any case, Judge Dolinger appropriately discounted the age related comment. ( See Report, p. 50 (characterizing question of age as "modest additional support for the notion that discriminatory animus played a role.")).
The record can be read to suggest that Calvet engaged in a largely unjustified campaign of criticism of [plaintiff], that she did so in a manner suggestive of personal hostility, that she herself was concerned with plaintiff's age, and that she enthusiastically embraced a younger, Caucasian replacement who lacked a significant qualification for the job that plaintiff had. Given these circumstances . . . a trier of fact may certainly conclude that Calvet's asserted reason for recommending termination is false and that the record supports a 'reasonable inference that prohibited discrimination occurred.'
(Report, p. 51) (citations omitted).
The Court agrees, both because a reasonable jury could conclude that defendant's proffered explanation for terminating plaintiff is not credible, and because there is indirect evidence from which age-based animus can be inferred. In reaching this conclusion, the Court notes that this case is distinguishable from Schnabel for several reasons. First, plaintiff was replaced by a much younger employee who had significantly less experience and who otherwise appears to have been unqualified for the position of bilingual counselor at School 235, where a large number of students spoke Spanish. Second, plaintiff contends — albeit without supporting evidence, and on only one occasion — that Calvet inquired about her age. See n. 5, supra. Third, there is at least a genuine issue with respect to the question of who officially rehired plaintiff after the Redesign, which makes unavailable the same-actor inference.
The Schnabel court deemed this factor "highly relevant" to the question of whether there was sufficient evidence to send the case to a jury. Schnabel, at 91.
Moreover, Calvet's performance evaluations and comments — the primary if not sole basis for plaintiff's termination — suffer from serious procedural and substantive irregularities. These irregularities were comprehensively outlined in the Report. ( See generally, Report, pp. 43-51). In sum, and as Judge Dolinger noted, "a trier of fact could possibly infer from the rapidity, volume, and short life" of Calvet's comments and performance evaluation that she was "dissembling to cover up a discriminatory purpose." (Report, pp. 45, 49). Thus, it is clear that plaintiff has carried her burden on summary judgment in this case.
Additional support for this conclusion can be found in the fact that defendants' record-based arguments to the contrary are weak. Their first claim is that summary judgment is appropriate because plaintiff does not attribute any overtly discriminatory remarks to Calvet. (Obj., p. 10). If that alone were the litmus test, few cases would make it beyond summary judgment. Defendants next note that in November 1996 Calvet recommended that plaintiff be allowed to continue in her probationary position, claiming that this act is relevant because Calvet certainly "knew plaintiff's race . . . and approximate age at that point." (Id.). Whatever this fact is worth, it is not enough to overcome the evidence of contrary intent in the record, especially drawing all inferences in plaintiff's favor. Finally, defendants observe that other, Caucasian, employees were also dismissed for sub-standard work during the relevant time period. As Judge Dolinger noted, however, none of those employees was eligible for tenure, and there is some suggestion in the record that they left School 235 not because of poor performance, but because their Teach America program had ended. (Report, p. 25).
In sum, the Court agrees with the Report that plaintiff has established sufficient evidence from which a reasonable trier of fact could conclude that age was a determinative factor her termination, and therefore rejects defendants' objections on this issue.
E. Collateral Estoppel
Defendants next argue — apparently for the first time — that plaintiff is collaterally estopped from asserting her §§ 1981, 1983, SHRL and CHRL claims. As a matter of black-letter law, collateral estoppel bars the relitigation of issues actually litigated and decided in a prior proceeding, as long as that determination was essential to that judgment. See Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991) (per curiam), cert. denied sub nom., Levy v. Martin, 504 U.S. 909 (1992). Four elements are required to establish collateral estoppel: (1) the issues of both proceedings must be identical; (2) the relevant issues were actually litigated and decided in the prior proceeding; (3) there must have been "full and fair opportunity" for the litigation of the issues in the prior proceeding; and (4) the issues were necessary to support a valid and final judgment on the merits. See Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986) (setting forth four-part test).
Defendants concede, as they must, that plaintiff's Title VII and ADEA claims are not estopped. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799 (1973) (holding that an EEOC finding of no-probable-cause does not restrict an individual's right to a de novo trial on the merits of a Title VII claim, particularly "in view of the large volume of complaints before the Commission and the nonadversarial character of many of its proceedings.").
Those elements are subject to a well-worn burden-shifting framework. At the outset, "the party asserting preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment." BBS Norwalk One, Inc. v. Raccolta, Inc., 117 F.3d 674, 677 (2d Cir. 1997) (emphasis added) (citation omitted). On this point, collateral estoppel "will apply only if it is quite clear that this requirement has been met." Id. (internal quotation marks omitted) (emphasis added). If this initial burden is met, the party opposing estoppel must demonstrate that it was not afforded a "full and fair opportunity" to litigate in the prior proceeding. LaFleur v. Whitman, 300 F.3d 256, 274 n. 7 (2d Cir. 2002) (citation omitted).
Here, defendants' collateral estoppel objection appears in two somewhat disjointed forms. In its first form, the argument is that plaintiff's grievance hearing — conducted by the Chancellor's Committee for the purpose of resolving plaintiff's challenge to her termination — has a preclusive effect because at the hearing plaintiff had "the opportunity to present evidence, including witnesses, and to cross-examine Board witnesses." (Obj., p. 11). This is far short of what is needed to establish collateral estoppel. Among other things, "[t]he party invoking collateral estoppel must demonstrate the identity of the issues in the prior and current litigations and must establish that the issues were previously decided on the merits." Pack v. Artuz, 348 F.Supp.2d 63, 70 (S.D.N.Y. 2004). Defendants have made no attempt to do so here; even if they had, the Court doubts that the relevant issues were identical — at the grievance hearing plaintiff was simply attempting to get her job back, an effort which was undoubtedly focused more on plaintiff's on-the-job performance that it was on Calvet's motives for recommending her termination, which is the primary issue here.
The second form of defendants' objection deserves more attention. In essence, defendants argue that the Supreme Court's decision in University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986), along with the Second Circuit's decision in DeCintio v. Westchester County, 821 F.2d 111, 117-18 (2d Cir. 1987), support the conclusion that an EEOC "no probable cause" determination operates to estop §§ 1981, 1983 and state human rights claims.
In Elliot, the Supreme Court held that the findings of a state administrative agency might be given preclusive effect where a later action is brought pursuant to the Reconstruction Era civil rights statutes. In an aside, the Court also observed that the doctrine "is equally implicated whether factfinding is done by a federal or state agency," Elliott, at 798, thus making available the inference that federal administrative findings might preclude §§ 1981 and 1983 claims. The Elliott Court described the conditions under which preclusive effect is warranted as follows:
42 U.S.C. §§ 1981, 1983, 1985, and 1986, among others.
[W]hen 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, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.Elliott, at 789. Thus, Elliott teaches that a state agency's resolution of factual issues adverse to a complainant will bar a federal court action only if (1) the state agency was acting in a judicial capacity; (2) the disputed issues of fact were properly before the agency and the parties were given an adequate opportunity to litigate them, see also United States v. Utah Construction Mining Co., 384 U.S. 394, 422 (1966); and (3) the courts of that particular state would give the agency's factual determinations preclusive effect.
In DeCintio, the Second Circuit applied Elliott to hold that a plaintiff was collaterally estopped from bringing a § 1983 claim where he was afforded the opportunity to present his case both at a hearing conducted pursuant to N.Y. Civ. Serv. Law § 75 ("Section 75 Hearing"), and before the New York State Division of Human Rights ("SDHR"). By virtue of these two administrative proceedings, the Second Circuit concluded that plaintiff had a "full and fair opportunity" to litigate his discrimination claim, and therefore held that "preclusion is therefore appropriate if the courts of New York would so rule." DeCintio, at 116. The Court then applied Ryan v. New York Telephone Co., 62 N.Y.2d 494 (1984), to resolve the "if" of their ruling.
In Ryan, the New York Court of Appeals held that a proceeding before a federal Department of Labor Unemployment Insurance Administrative Law Judge estopped a subsequent state claim based on the same issues. In reaching this conclusion, the Court echoed the concern that the prior, preclusive proceeding be "judicial in nature," observing that:
[T]he doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies . . . when rendered pursuant to the adjudicatory authority of an agency . . . employing procedures substantially similar to those used in a court of law.Ryan, at 499. Thus, whether one looks to the decision of the New York Court of Appeals in Ryan, or to the Supreme Court's decision in Elliott, the first question is whether an EEOC "no probable cause" determination is sufficiently judicial in nature to afford claimants a "full and fair opportunity" to litigate §§ 1981, 1983, SHRL and CHRL claims. For several reasons, the Court finds that it is not.
The powers of the EEOC to investigate claims of discrimination are delineated in various sections of the Code of Federal Regulations. See C.F.R. §§ 1601.15-.17. Those powers, briefly, are as follows: (i) pursuant to § 1601.15, the EEOC may investigate a complainant's charges and require the complainant to submit a statement detailing the practices alleged to be unlawful and the harm he or she has suffered; (ii) pursuant to §§ 1601.16-.17, the EEOC may initiate a fact-finding conference — with all parties present — in order to narrow the issues and determine whether there exists a basis for a negotiated settlement of the charge; and (iii) pursuant to those same sections, the EEOC can issue subpoenas and call witnesses.
On the whole, however, it is clear that EEOC proceedings are not sufficiently judicial in nature to warrant estoppel. First, compared to the prior proceedings at issue in cases where courts have allowed estoppel, EEOC proceedings are not substantially similar to those used in a court of law. In Ryan, the Court held that the proceeding at issue — conducted by a federal Department of Labor Unemployment Insurance Administrative Law Judge — had preclusive effect under circumstances very different from those here:
[Plaintiff] did, in fact, litigate the issue, testifying himself and cross-examining defendants' witness through his union representative. The "realities of the prior litigation" are that it was a sufficiently extensive and fully adversarial hearing presided over by an Administrative Law Judge; that the hearing was initiated by Ryan himself to demonstrate his entitlement to unemployment benefits; and that he freely and knowingly chose not to appear with legal counsel but to be represented instead by a union official who was an experienced advocate in such hearings and whose competence and efforts on Ryan's behalf is demonstrated in the minutes of the proceedings. The record shows that the hearing was fair and that Ryan had a full opportunity to litigate the issue of his misconduct.Ryan at 503-04 (citation omitted). Similarly, in DeCintio, the Second Circuit held that a plaintiff was collaterally estopped by a hearing conducted pursuant to N.Y. Civ. Serv. Law § 75 ("Section 75 Hearing"), as well as a no probable cause finding by the New York State Division of Human Rights ("SDHR"), which cannot occur "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, at 117 (citations and quotation marks omitted). EEOC proceedings do not rise to this level.
To the contrary, EEOC "probable cause" determinations are substantially non-judicial in nature. For example, complainants have no right to a formal hearing; neither does the EEOC have power to fashion remedies or enforce its determinations. More significantly, although the EEOC may, on its own initiative, reconsider its determinations, C.F.R. §§ 1601.19, .21, parties have no right to appeal an EEOC determination. Thus, by itself, the determination is "lifeless . . . and . . . is merely preparatory to further proceedings." Georator Corp. v. E.E.O.C., 592 F.2d 765, 768 (4th Cir. 1979).
Other courts to consider the issue have reached similar conclusions. As the court explained in E.E.O.C. v. Jacksonville Shipyards, Inc., 696 F.Supp. 1438 (M.D. Fla. 1988):
[the] EEOC's reasonable cause determination is not an adjudication of rights and liabilities; indeed, it is a nonadversar[ial] proceeding designed to notify an employer of [the] EEOC's findings which is not reviewable in court and not binding on the employer.Id., at 1441. In sum, EEOC procedures are simply not "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).
Moreover, the EEOC itself apparently concurs in this judgment; it does not consider the absence of "reasonable cause" to preclude it from later litigating the same issue. As the Supreme Court noted in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), albeit in the context of a Title VII claim:
The Commission itself does not consider the absence of a "reasonable cause" determination as providing employer immunity from similar charges in a federal court . . . and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, court actions under Title VII are de novo proceedings and . . . a Commission "no reasonable cause" finding does not bar a lawsuit in the case. McDonnell Douglas, at 799 (citations and quotation marks omitted). This, then, is a second reason that an EEOC "no probable cause" determination has no preclusive effect — it is not a "final judgment on the merits." See Gelb v. Royal Globe Ins. Co., 798 F.2d 38, at 44.
Indeed, the only outcome of a "reasonable cause" determination by the EEOC is that the agency may then try to obtain voluntary compliance by the offending employer, to effect a conciliation between the parties, or to institute suit itself against the employer. 42 U.S.C. §§ 2000e-5(b), (f). Further, regardless of whether the EEOC finds reasonable cause to support a claimant's allegations of discrimination, the complainant has a statutory right to sue. See C.F.R. § 1601.19 (providing that the EEOC shall inform complainant who received a "no cause determination" of his or her right to sue in district court); C.F.R. § 1601.28(b) (providing that the EEOC shall issue notice of right to sue to complainant who received a "reasonable cause" determination); see also Ward v. E.E.O.C., 719 F.2d 311, 313 (9th Cir. 1983) (holding EEOC determination is not a "final agency action" under the APA because it "has no determinate consequences" and is "merely preparatory to a lawsuit"); Georator Corp., 592 F.2d at 768 ("No such finality exists with respect to the EEOC's determination of reasonable cause. Standing alone, it is lifeless, and can fix no obligation nor impose any liability on the plaintiff.").
For all of these reasons, the Court rejects defendants' estoppel arguments. F.N.Y. Educ. Law § 3813 as Applied to SHRL and CHRL Claims Against Calvet
Judge Dolinger recommended dismissing plaintiff's SHRL and CHRL claims against the Board pursuant to the notice of claim requirement codified at N.Y. Educ. Law § 3813(1), which states in relevant part:
No action or special proceeding, for any cause whatever, . . . involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, board of education, . . . or any officer of a school district, board of education, board of cooperative educational services, or school provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim . . .
N.Y. Educ. Law § 3813(1). It is undisputed that plaintiff never filed a notice of claim with the relevant governing body, which clearly precludes her SHRL and CHRL claims against the Board. Accordingly, the Court adopts Judge Dolinger's recommendation and grants summary judgment with respect to those claims.
The Court also agrees with the Report's recommendation that plaintiff cannot fit her claims against the Board within the limited exception to the notice of claim requirement, which is reserved for claims that "vindicate a public interest." Union Free School Dist. No. 6 of Towns of Islip Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859).
Defendants now contend that plaintiff's suit against Calvet in her personal capacity must be dismissed because she is an "officer of a school district [or] board of education" within the meaning of § 3813(1). According to defendants, this means that plaintiff's SHRL and CHRL claims are precluded against Calvet for the same reason they are precluded against the Board — because plaintiff failed to file a timely notice of claim. After a thorough and well-reasoned analysis of § 3813(1), Judge Dolinger concluded that school principals are not officers within the meaning of the statute. For substantially the reasons stated in the Report, the Court concurs in this conclusion, but adds the following additional support.
Section 3813(1) precludes claims against "officer[s] of . . . any board of education . . . or school provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four." N.Y. Educ. Law § 3813(1). Article 85 schools are statutorily designated "special schools," including schools for the instruction of the deaf and blind, as are schools governed by Chapter 1060 under the 1974 laws. See N.Y. Educ. Law § 4201, et seq. By limiting the notice of claim requirement to suits against "officers of schools" only where those "officers" are affiliated with special education schools, the legislature created the inference that it intended to exclude claims against "officers" of all other types of schools, including School 235, which the Court assumes is not an Article 85 school. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (explaining that the canon expressio unius est exclusio alterius "has force only when the items expressed are members of an associated group or series, justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.") (citations and quotation marks omitted). Thus, even if Calvet were considered to be an "officer" of School 235 — the most plausible of defendants' contentions — by its plain language Section 3813(1) would not apply.
Defendants' alternative argument that Calvet is an "officer" of the Board or school district is entirely unsupported by the record; nor has the Court found any case suggesting, even in passing, that school principals are "officers" of the districts in which they work, or of the boards of education which employ them.
Although defendants' reading of Section 3813(1) is not per se implausible, it is by no means the only — or most sensible — reading that the statute can bear. Thus, for the reason just stated, as well as those articulated in Judge Dolinger's Report, the Court rejects the contention that Section 3813(1) applies to plaintiff's claims against Calvet.
E. Section 1981 Claims Against the Board and Calvet in Her Official Capacity
As noted at the outset, the Court adopts the Report's recommendation that defendants be granted summary judgment with respect to plaintiff's § 1983 claims against the Board and — to the extent any claims are made — against Calvet in her official capacity. There is simply no evidence in the record of a discriminatory municipal policy or custom, a required element of §§ 1981 and 1983 claims against municipal agencies such as the Board, as well as individuals sued in their official capacity. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). In their objections, defendants contend — apparently for the first time ( see Report, p. 53) — that plaintiff's § 1981 claims must be dismissed for the same reason that her § 1983 claims fail, namely, because she cannot establish an element essential to either claim. The Court concurs, and therefore grants summary judgment with respect to both plaintiff's §§ 1981 and 1983 claims against the Board, and Calvet in her official capacity.
F. Plaintiff's Duty to Mitigate
Defendants' final objection to the Report is that plaintiff failed to mitigate her damages, and thus cannot recover front or back pay. This argument is advanced in a most general form; defendants merely note that "the full record supports" their position on the issue, and then offer two vague facts in support: first that the New York City Department of Education maintains a web site for interested teaching applicants, and second that "the staffing needs of the Board . . . are a matter of public record." (Obj., p. 18). For these two reasons, and also because plaintiff could have looked outside of New York City for work, defendants conclude that "plaintiff surely could have made more stringent efforts that the one she described to obtain a teaching position." ( Id.).
Judge Dolinger considered and rejected these arguments, finding that defendants had not "demonstrat[ed] beyond triable dispute that suitable employment was or would be available" to plaintiff. (Report, p. 79). More important, there is certainly a genuine issue with respect to the reasonableness of the efforts that plaintiff did make, which were not insignificant. ( See generally, Report, pp. 77-79). Accordingly, summary judgment is denied on this final ground.
IV. Conclusion
For the foregoing reasons, as well as for the reasons stated in the Report (attached infra), the Court grants summary judgment on plaintiff's §§ 1981 and 1983 claims against the Board and Calvet in her official capacity, as well as on plaintiff's SHRL and CHRL claims against the Board. Defendants' motion [28] is denied in all other respects.
SO ORDERED.