Let the New York Court of Appeals worry about it

A res judicata curveball finds its way to the Court of Appeals in this employment discrimination case, where the pro se plaintiff brought suit in federal court after a state court dismissed as untimely her appeal from an adverse State Division of Human Rights finding. The Court of Appeals decides that this is a job for the state Court of Appeals, and the case is now at the doorstep of the state's highest court.

The case is Joseph v. HDMJ Restaurant, decided on August 5. Joseph says her colleagues subjected her to some horrible sexual harassment. She went to the State Division of Human Rights, which rejected her claim following a hearing. She then appealed to State Supreme Court, which rejected her claim because she filed the Article 78 appeal too late. She next filed a lawsuit in federal court.

If you are not well-versed in Title VII law, your instinct will say that the federal claim should be dismissed because Joseph lost her claim in State Supreme Court on statute of limitations grounds. But it's not so easy. In University of Tennessee v. Elliott, 478 U.S. 788 (1986), the Supreme Court said that plaintiffs may proceed in federal court on employment discrimination cases so long as they did not appeal the adverse administrative findings in state court. But Joseph did take up that adverse administrative appeal in State Supreme Court, and lost on timeliness grounds.

Two Second Circuit rulings address this problem. In Bray v. New York Life Insurance, 851 F.2d 60 (2d Cir. 1988), the Court said that res judicata attaches when the federal court Title VII plaintiff previously lost her untimely appeal in state court from an adverse administrative determination. Bray is identical to the Joseph case. But in Cloverleaf Realty v. Town of Wawayanda, 572 F.3d 93 (2d Cir. 2009), a municipal due process case that had nothing to do with employment discrimination, the Court of Appeals said that the plaintiff could bring a federal civil rights action after losing on timeliness grounds an Article 78 in state court. The Cloverleaf court said that Bray was no longer good law because the New York Court of Appeals held in Tanges v. Heidelberg North America, 710 N.E.2d 250 (1999), that "the expiration of the time period enumerated in a statute of limitations would not bar an otherwise available federal remedy."

So which is it? Joseph can win the appeal under Cloverleaf, but she loses under Bray. Cloverleaf is the more recent decision, and it is therefore more useful. But Bray is closer to Joseph in its facts. The mid-level appeals courts in New York have not provided enough guidance on this problem, either. The Second Circuit (Katzmann, Hall and Jones [D.J.]) judges looked at each other and said, "what are we going to do?" Here is what they do. Since res judicata is a creature of state law, the Court of Appeals certifies the case to the New York Court of Appeals, which has authority to resolve state-law puzzles like this. So for now, the case sits in limbo until the state's highest court picks up the pieces.