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FELDSTEIN v. NEW YORK CITY DEPT. OF CONSUMER AFFAI

October 20, 1992

ROBERT FELDSTEIN, Plaintiff, against NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, et al., Defendants.


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff Robert Feldstein filed the present Section 1983 complaint against defendants New York City Department of Consumer Affairs ("DCA"); Mark Green, Commissioner; and Karen Miller, Chief Hearing Officer, on May 7, 1992. The complaint, which asserts that defendants violated Feldstein's rights by causing him to be dismissed from his position at DCA and by maintaining stigmatizing information in his employment records, seeks reinstatement and a name-clearing hearing.

 Feldstein was hired by DCA as a probationary legal assistant on September 6, 1990, and was dismissed on September 30. Feldstein instituted an Article 78 proceeding in New York State Supreme Court on December 17, 1990, raising various state and federal claims (including claims grounded in 42 U.S.C. § 1983). In that proceeding, Feldstein contended that he had been dismissed in retaliation for his "whistleblower" lawsuit then (and now) pending against his previous state employer. *fn1" Feldstein sought, inter alia, a name-clearing hearing and reinstatement.

 In denying his application for a name-clearing hearing in its preliminary order of July 8, 1991, Index No. 47110/90, the court noted that Feldstein made no allegation that DCA had disseminated any false information to outside persons. Moreover, as to the substantive issue -- whether DCA's asserted reasons for dismissing Feldstein were both factually accurate and legally sufficient -- the court ordered a hearing. Central to the resolution of the dispute was a September 13, 1990 letter from DCA Commissioner Green to the Department of Personnel requesting Feldstein's termination. The letter cited two separate occasions during Feldstein's first few days of work in which Feldstein concealed extended or unexcused work absences by falsifying his time records.

 Upon considering the evidence, the court subsequently issued an order, dated December 24, 1991, making explicit findings that Feldstein had failed to raise a material issue of genuine fact as to the accuracy of the allegations in the letter. Accordingly, the court denied Feldstein's petition in its entirety. Despite Justice Sklar's instruction to the parties to "settle judgment," neither party ever did so.

 Defendants now move to dismiss the federal complaint on the grounds that principles of collateral estoppel bar Feldstein's claims.

 DISCUSSION

 As an initial matter, this court will treat the present motion as one made for summary judgment. The parties have submitted matters outside the pleadings in the form of affidavits and exhibits, thereby effectively converting the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. Fed. R. Civ. P. 12(b).

 Under 28 U.S.C. § 1738, federal courts are obliged to give state court judgments the same preclusive effect as would be accorded by the state courts. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81-84, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). In New York courts, "the doctrine of collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Murphy v. Gallagher, 761 F.2d 878, 881 (2d Cir. 1985). More specifically, the party seeking to invoke collateral estoppel (also referred to as "issue preclusion") must demonstrate both that the same issue was necessarily decided in the prior action, and that there was a full and fair opportunity to contest the decision now claimed to be controlling. Id. at 882. *fn2"

 Bearing these principles in mind, the court now turns to the specific claims raised in this action. It is well established that "[a] government employee's liberty interest is implicated where the government dismisses him based on charges 'that might seriously damage his standing and associations in his community' or that might impose 'on him a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities.'" Brandt v. Board of Co-op. Educ. Svcs., 820 F.2d 41, 43 (2d Cir. 1987) (quoting Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). In such cases, due process entitles the employee to a name-clearing hearing, but only if the charges are alleged to be false, and only if the information has been, or is likely to be, disseminated outside the employing body. Id. at 43-46.

 Defendants argue that "the state court expressly decided that plaintiff was not entitled to a name-clearing hearing, the identical claim he no brings to this Court." It is true that the state court based its decision on the fact that Feldstein neither alleged nor proved that DCA had actually disseminated stigmatizing information about Feldstein. Given the possibility that DCA might subsequently have disseminated the information of which Feldstein complains -- the letter written by Commissioner Green -- this court cannot say that the state court's decision on this specific ground necessarily bars consideration of the issue here. *fn3"

 Feldstein's claim for reinstatement fails for similar reasons. The state court expressly found that the allegations recited in Green's letter -- Feldstein's unexcused absences and time-record falsification -- were borne out by the ...


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