Supreme Court correctly applied the Doctrine of Collateral Estoppel to the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm

Applying the Doctrine of Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging unlawful discrimination

Applying the Doctrine of  Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging  unlawful discrimination

Mohamed Abdelal v Police Commissioner Raymond W. Kelly, City Of New York, USCA, 2nd Circuit, Docket #17-1166-cv

Mohamed Abdelal, a naturalized United States citizen who was born in Egypt and is Muslim, who served as a police officer with the New York Police Department [NYPD] from 2006 until he was terminated in 2013 after having been found guilty of misconduct "after notice and hearing."

1. The hearing officer found Abdelal guilty of nine charges, dismissed two charges, and recommended the imposition of a penalty of a "one-year dismissal probation" and forfeiture of 45 vacation days.

2. The Police Commissioner adopted the factual findings of the hearing officer but rejected the hearing officer's proposed penalty and, instead, offered Abdelal a "negotiated penalty" that would require Abdelal to immediately file for vested retirement.

Abdelal rejected the penalty proposed by the Commissioner and was terminated from his position.

Abdelal subsequently filed a lawsuit in federal district court alleging that he had been unlawfully discriminated against him and subjected him to a hostile work environment because of his (1) Egyptian national origin, (2) Arab ancestry, and (3) Muslim religion. Abdelal appealed the district court dismissed Abdelal's  complaint, ruling that (1) Abdelal's disparate treatment claims based on his termination were ʺbarred by res judicataʺ; and (2) his hostile work environment claims were time-barred.

The Circuit Court of Appeals vacated the lower court's judgment, explaining:

1. To the extent the district court relied on the doctrine of res judicata [claim preclusion], which "bars an action if the plaintiff could have raised the claim in a prior proceeding," even a plaintiff failed to do so, the Circuit Court, citing Colon v. Coughlin, 58 F.3d 865, said the lower court's decision was in error because the doctrine of res judicata ʺgenerally does not operate to bar a §1983 suit following the resolution of an Article 78 proceeding, since the full measure of relief available in the former action is not available in the latter.ʺ

2. Abdelal's federal claims were not barred by collateral estoppel [issue preclusion] as the doctrine of issue preclusion only applies ʺ(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.ʺ

The Circuit Court held that the Police Department failed to meet its burden of showing that the identical issues had been decided in the Article 78 proceeding, noting that the district court explicitly pointed out that that Abdelal had not raised his race and religion claims of discrimination in the Article 78 proceeding nor did the Appellate Division, First Department, mention of any discrimination claim in its decision dismissing the Article 78 petition.

The fact that the First Department concluded that the administrative record contained ʺsubstantial evidence to support the finding that [Abdelal] engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD,ʺ does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons.

Accordingly, Circuit Court conclude that the district court erred in holding that Abdelal's discrimination claims are precluded by the Article 78 proceeding.

Finally, disagreeing with the district court finding that Abdelal's hostile work environment claims were untimely, the Circuit Court noted that "[t]he express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units." Whether construed as a stand-alone §1981 claim or a §1983 claim that vindicates the rights guaranteed in §1981, the Circuit Court opined that Abdelal's claim "is timely either way."

The Circuit Court then remand the case to the district court "to consider, in the first instance, the merits of the claims, as to which [it expressed] no view."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/doc/17-166_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/hilite/

AELE case notes, publications, and seminars alert for March 2018

AELE case notes, publications, and seminars alert for March 2018

Posted March 1, 2018

1. Monthly Law Journal 
Article: U.S. Supreme Court Revisits the Basics of Probable Cause and Qualified Immunity.

View at http://www.aele.org/law/2018all03/2018-03MLJ101.pdf

2. Seminars:  
AELE's next seminar is on Use of Force in Las Vegas on April 30-May 3, 2018. For more information and to register click here:

http://www.aele.org/menu-lethal.html

Next is AELE's seminar on Discipline and Internal Investigations. Join us in Las Vegas on Oct. 29-Nov. 1, 2018. For more information and to register click here: http://www.aele.org/menu-disc.html

 3. AELE periodicals 
Three  AELE periodical have been uploaded. The current issues, back issues since 2000, and case digests since 1975 are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

4. Law Enforcement Liability Reporter
This issue has cases on assault and battery: physical, defenses: qualified immunity, domestic violence and child abuse, Federal Tort Claims Act, firearms related: intentional use, firearms relations: Second Amendment issues, First Amendment, and search and seizure: home and business.

View at http://www.aele.org/law/2018all03/LR2018MAR.html

5. Fire, Police & Corrections Personnel Reporter

This issue has cases on Family and Medical Leave Act, First Amendment related, pensions, privacy rights, political discrimination, retaliatory personnel action, retirement rights and benefits, sexual harssment, whistleblower protection, and U.S. Supreme Court employment decisions.

View at http://www.aele.org/law/2018all03/FP2018MAR.html

6. Jail and Prisoner Law Bulletin
This issue has cases on access to courts/legal info, DNA testing, false imprisonment, filing fees, immigration detainees, medical care, medical cost recovery, prison and jail conditions: general, prisoner assault: by officers, and religion.
View at http://www.aele.org/law/2018all03/JB2018MAR.html

7. The current issues, back issues since 2000, and case digests since 1975 are FREE. 
Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

8. Selected criminal law and procedure cases are at three other free websites.
https://www.fletc.gov/the-informer
http://www.kenwallentine.com/Xiphos.html
http://le.alcoda.org/publications/point_of_view/

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm