MEMORANDUM AND ORDER
GLASSER, United States District Judge:
This is a motion by defendant the New York State Office of Mental Health ("OMH") and its Bronx Psychiatric Center ("BPC"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that an adverse determination for plaintiff in a Article 78 proceeding precludes this Title VII action. For the following reasons, defendant's motion is granted.
A. Feldstein's Employment with the BPC
From on or about January 14, 1988, to on or about February 11, 1989, Feldstein was employed by the OMH and worked as an orderly (a "Secure Care Treatment Aide I") at the BPC. Amended Complaint PP 8, 12; Def.'s 3(g) Statement, P 1. Affidavit of Stephen M. Jacoby, October 5, 1993 ("Jacoby Aff'd"), Ex. 4.
On or about January 9, 1989, the BPC Senior Personnel Administrator approved the extension of Feldstein's probationary period of employment with the BPC pursuant to Civil Service Regulation Section 4.5(f) because of his accumulated absences.
Jacoby Aff'd, Ex. 2. On January 11, 1989, Feldstein sent a memorandum to a Norma Hardy, a supervisor at the Secure Care Unit, protesting these evaluations. See Jacoby Aff'd, Ex. 3 at 1 ("I have maintained for 52 weeks a perfect attendance record, clearly quite an accomplishment in a facility that rewards employees for maintaining a perfect attendance record for even a month.") (emphasis in original). Nevertheless, in a letter dated January 13, 1989, Feldstein was informed that his probationary period was being extended for a total of 21 work days to February 11, 1989. Jacoby Aff'd, Ex. 4. On or about January 27, 1989, Feldstein grievanced the extension of his probationary period and sought "recission [sic] of letter extending probationary period and execution of a notice of Tenure Status." Jacoby Aff'd, Ex. 5. However, the Director of Personnel at the BPC, in a letter dated February 1, 1989, informed Feldstein that BPC was "terminating [his] probationary services as a Secure Care Treatment Aide I, effective Thursday, February 9, 1989, close of business." Jacoby Aff'd, Ex. 6.
In a memorandum dated February 2, 1989, Feldstein wrote again to Norma Hardy and stated, among other things, that "I wrote to you on 1-13-89 [sic] in part for the purpose of formally protesting the rating I was given by you in my probationary evaluation, but more importantly in the hope that you would realize how unfairly and illegally I have been treated by yourself and some of my co-workers[.]" Jacoby Aff'd, Ex. 7. In this memorandum, Feldstein complained of "racial bigotry" by a co-worker, Ms. Jiggetts, and wrote that "[Ms. Jiggetts] admitted to me that I have not been treated equally, but warned me that I would not be able to prove it because everyone will back her up."
In a memorandum to the personnel department at the BPC, dated February 6, 1989, Feldstein wrote that "I request that this facility recind [sic] my termination of services on the grounds that such termination is not in the facility's best interests, is arbitrary and capricious, is in breach of both the Labor-Management Contract as well as my personal contract with the facility, and is a violation of my Human Rights." Jacoby Aff'd, Ex. 8. In this memorandum Feldstein objected to his termination based on, among other things, the allegation that "my termination was arbitrary and capricious because its' [sic] purpose was not the legitimate agency goal of retaining competent employees, but rather to placate other employees whom I was socially incompatible with due to my being white, male, Jewish and educated." Feldstein complained that his allegations of mistreatment by his co-workers were not being handled properly by the facility and threatened to "seek remedy from the Courts, Union, and Division of Human Rights[.]" In a memorandum to Ms. Marlene Lopez ("Lopez"), the Executive Director of the BPC, dated February 7, 1989, Feldstein requested that Ms. Lopez "re-review my case and allow the affirmative action officer to investigate without allowing irreparable harm [to] occur to me in the meanwhile." Jacoby Aff'd, Ex. 9 at 3. In this memorandum Feldstein again suggested that his termination was a retaliation by the facility for his complaints of mistreatment by co-workers: "Ms. Hardy's summation is the least honest portion of her letter. The reason she seeks my termination is to placate certain co-workers who hold discriminatory hostility towards me." Jacoby Aff'd, Ex. 9 at 2.
In a letter dated February 8, 1989, Horace A. Von Eeden ("Von Eeden"), Director of Personnel at the BPC, informed Feldstein that "after a review of your case, it has been decided to rescind the termination of your probationary services as a Secure Care Treatment Aide I[.]" Jacoby Aff'd, Ex. 10. However, the BPC also informed Feldstein that he would be required to "serve a second probationary period of twenty-six (26) weeks" and will be assigned to the day shift. Feldstein grievanced the switch to the day shift on or about February 9, 1989, and requested a "restoration to night shift assignment." Jacoby Aff'd, Ex. 11. Feldstein also protested his reassignment to Von Eeden on February 9, 1989, on the ground that his reassignment was procedurally defective, Jacoby Aff'd, Ex. 12, and to Lopez on the same day, Jacoby Aff'd, Ex. 13 ("Unless this facility withdraws its' [sic] intention to involuntarily switch my shift, I am forced to request a one-year leave of absence[.]"). Because Feldstein was unwilling to accept a second probationary term, Von Eeden informed Feldstein in a letter dated February 9, 1989, that BPC "must now process the probationary termination of your service[.]" Jacoby Aff'd, Ex. 14. In a letter dated February 11, 1989, Feldstein wrote to the New York State Department of Civil Service "appealing" the termination of his services and the extension of his probationary period. Jacoby Aff'd, Ex. 16. In a letter dated February 13, 1989, Von Eeden wrote to Feldstein to inform him that "there is no change in management's position [regarding termination]." Jacoby Aff'd, Ex. 17.
In a "Facility Exit Interview Questionnaire" dated February 16, 1989, Feldstein wrote that he was leaving the facility because he had been "terminated as a result of race and sex discrimination and for complaining about same." Jacoby Aff'd, Ex. 15. He also wrote that "the work with the patients was rewarding but the experience of being victimized by racial and sexual discrimination was extremely unpleasant." On the same day he filed a grievance and requested "restoration to service with back pay" and "return to exact same assignment." Jacoby Aff'd, Ex. 18. The BPC refused to consider Feldstein's February 16, 1989 grievance in letters dated February 16, 1989, and February 21, 1989, because, it stated, "matters pertaining to probationary extensions and terminations are not reviewable [under the contract between the union and the State of New York]." Jacoby Aff'd, Exs. 19 and 20. Feldstein wrote to Von Eeden on February 17, 1989, "requesting that you reconsider your decision not to excuse my absences, and review the nature of my absences and their effect on my supervisor's ability to make a probationary assessment." Jacoby Aff'd, Ex. 21. Feldstein complained in this letter that, among other things, the facility's decision not to excuse his absences was arbitrary, capricious, and not executed in good faith.
B. State Administrative Proceedings
On or about February 16, 1989, Feldstein filed a complaint with the New York State Division of Human Rights ("NYSDHR"). Jacoby Aff'd, Ex. 22. In this complaint Feldstein alleged that "I was denied equal terms, conditions, and privileges of employment in as much as the standards I had to adhere to were far higher than my Black co-workers, my evaluations were not given in a timely manner or in the correct sequence, my workload was greater, and I was denied the receipt of phone calls." In the complaint Feldstein also alleged that he was terminated after he protested the discriminatory treatment by his two co-workers. The record is silent as to the final determination by the NYSDHR regarding Feldstein's complaint.
C. State Court Proceedings
On or about March 1, 1989, Feldstein commenced an Article 78 proceeding in New York Supreme Court, Bronx County, Robert Feldstein v. Bronx Psychiatric Center, et al., Index No. 7622-1989, by serving an order to show cause and verified petition with annexed exhibits. Jacoby Aff'd, Ex. 23. The respondents were the BPC (a "facility of the New York State Office of Mental Health"), Richard Surles, Director of OMH, Lopez, and Von Eeden. In the ex parte order to show cause, respondents were ordered to show cause why a preliminary injunction should not issue enjoining respondents from replacing Feldstein and publishing any information regarding his work record. In Feldstein's Request for Judicial Intervention, also dated March 1, 1989, Feldstein sought to "annul decision to extend probationary period of petitioner." Jacoby Aff'd, Ex. 25.
In his Verified Petition, Feldstein alleged, among other things, that respondents refused to address his grievance of February 16, 1989; that the extended probationary time was used to prepare retroactive evaluations; and that respondents frequently applied Rule 4.5(f) to excuse other probationers from serving an extended probationary period. Jacoby Aff'd, Ex. 23. The relief sought was an annulment of the determination made by the BPC; an order requiring the BPC to excuse Feldstein's scheduled absences; and an order restoring Feldstein to the position he would have been in had the BPC not made its determination. Jacoby Aff'd, Ex. 23, "Wherefore" clause.
On March 3, 1989, Feldstein was granted a temporary restraining order by Justice Hansel McGee restraining respondents from "filling or otherwise encumbering employee number 16209" and from publishing any information regarding his work record. Jacoby Aff'd, Ex. 26. In his affidavit in support of the temporary restraining order, Feldstein alleged, among other things, that the extension of his probationary period was an abuse of discretion, Jacoby Aff'd, Ex. 27, P 1; that there was "no performance-related justification for the termination," Jacoby Aff'd, Ex. 27, P 2; and that "respondents and/or their employees are wilfully spreading false defamatory statements . . . about me," Jacoby Aff'd, Ex. 27, P 3.
On or about March 9, 1989, respondents made a motion pursuant to New York's Civil Practice Law and Rules Section 7804(f) vacating the temporary restraining order, denying the application for a preliminary injunction, and dismissing the petition "which seeks to annul the determination of respondents with respect to extending petitioner's period of probation[.]" Jacoby Aff'd, Ex. 29. In his affidavit in support of the motion, Von Eeden stated that, among other things, "[the] determination [to extend Feldstein's probationary period] was in conformity with the requirements of Rule 4.5(f) which mandates an extension of the probationary period which, in the discretion of the appointing authority, is not counted as time served in the probationary [period]." Jacoby Aff'd, Ex. 30, P 1. Von Eeden stated that, Feldstein's allegations notwithstanding, "the use of Rule 4.5(f) for extending probations due to scheduled and unscheduled absences has been continuously and consistently applied to all employees." Jacoby Aff'd, Ex. 30, P 3. He also stated that Feldstein could not suffer irreparable harm if the preliminary injunction was not issued because the BPC could re-hire Feldstein should an administrative tribunal or court so order. Jacoby Aff'd, Ex. 30, P 4(a). Von Eeden also denied that defendant was disseminating "malicious references concerning Mr. Feldstein to any prospective employer." Jacoby Aff'd, Ex. 30, P 4(b). In an affidavit in support of the motion, the attorney for the BPC also alleged that "Mr. Feldstein's probationary period was properly extended in accordance with Rule 4.5(f)." Jacoby Aff'd, Ex. 31 at 4. Counsel also stated that "with respect to any allegations involving alleged discriminatory acts against Mr. Feldstein, it should be noted that these matters are irrelevant with respect to the issues being raised by the petitioner in this proceeding and, moreover, he has indicated in his supporting papers that he is still pursuing these matters in other forums by administrative procedures." Jacoby Aff'd, Ex. 31 at 4.
On or about March 13, 1989, Feldstein made a motion pursuant to New York's Civil Practice Law and Rules Section 3112, for "Summary Judgment . . . on the basis that Respondents [sic] determination which Petitioner seeks annulled under CPLR Art. 78, is Arbitrary, Capricious, an abuse of Discretion, and and [sic] a non-feasance of the appointing officer's duty of office, as a matter of law." Jacoby Aff'd, Ex. 32.
On or about March 17, 1989, Feldstein served and filed an Amended Verified Petition in his Article 78 proceeding. In his Amended Verified Petition, Feldstein alleged, among other things, that (i) whereas co-workers were routinely allowed to receive personal calls, Feldstein's co-worker Ms. Jiggetts "routinely hung up the phone if the caller asked for [Feldstein]"; (ii) co-workers refused to assist Feldstein in performing his duties; (iii) another co-worker was ordered by Ms. Jiggetts not to assist Feldstein; (iv) Feldstein complained to his team leader about the alleged mistreatment but "Ms. Hardy made no attempt to reduce Ms. Jiggetts [sic] hostility toward [Feldstein]"; and (v) "Ms. Hardy decided to end the hostility by Ms. Jiggetts toward [Feldstein] by requesting [his] termination." Feldstein also alleged that the extended probationary time was used to prepare retroactive and inaccurate evaluations so as to "better support [the] termination request." See Jacoby Aff'd, Ex. 33. The Amended Verified Petition recounts the termination of Feldstein's probationary period -- he alleges that "[he] protested . . . that he was terminated in order to accommodate Ms. Jiggetts' racial prejudice" -- and his subsequent refusal to accept the facility's decision to rescind the termination if he would not accept a second probationary period and a new shift. In the Amended Verified Petition, Feldstein states that,
On information and belief, I believe I was terminated for reasons unrelated to my work performance, including the fact that I objected to unequal treatment by racist co-workers.
The termination was arbitrary, capricious, an abuse of discretion, and done in bad faith, and should be annulled.
Jacoby Aff'd, Ex. 33, PP 71-72. The relief sought was (i) an annulment of defendant's decision to terminate Feldstein; (ii) an order reinstating him with back pay; and (iii) an order annulling defendant's decision to excuse only ten days of his absences. Jacoby Aff'd, Ex. 33, "Wherefore" clause.
In his affirmation in response to Feldstein's Amended Verified Complaint, counsel for the BPC stated, among other things, that "respondents deny any allegations or implications of racial prejudice in connection with Mr. Feldstein's employment or job termination. Moreover, Mr. Feldstein has submitted nothing whatsoever to support these allegations except his own unsupported self-serving statements." Jacoby Aff'd, Ex. 35 at 2. Counsel also argued that Feldstein had not exhausted his administrative remedies with the NYSDHR. Counsel described the "basic issues raised by this Article 78 Proceeding" as follows: "[whether] the respondents acted properly when they extended Mr. Feldstein's period of probation under the discretion granted to them in Civil Service Regulation 4.5(f)." Jacoby Aff'd, Ex. 35 at 3. Counsel argued that because Feldstein was a probationary employee, Rule 4.5(f) gave respondents the right to terminate his employment without a hearing and without stating a reason therefor, so long as the discretion was exercised in good faith. Counsel argued that because Feldstein failed to raise any substantial issue of bad faith on the part of respondents, the Article 78 Proceeding should be dismissed. Jacoby Aff'd, Ex. 35 at 4.
In his response to this affidavit dated April 13, 1989, Feldstein stated, among other things, that "the most relevant potential affiants are also hostile to my cause because they are the very persons who denied me equal conditions and terms of employment because of their own racial bigotry[.]" Jacoby Aff'd, Ex. 36, P 3. He further asserted that the "missed phone calls and unfair assignments were the product of racial prejudice and the refusal of the team leader to remedy the problem." Jacoby Aff'd, Ex. 36, P 4.
In a decision dated June 1, 1989, Justice Hansel McGee denied Feldstein's application for a preliminary injunction and his motion for summary judgment and granted BPC's cross-application to vacate the temporary restraining order and dismiss the Article 78 petition. Jacoby Aff'd, Ex. 37. Justice McGee noted that Feldstein was alleging that BPC's application of Rule 4.5(f) in his case was made in bad faith and arbitrarily and that the extension of his probationary period was made in order to give respondents time to prepare retroactive evaluations for periods prior to the end of the original probationary period. Jacoby Aff'd, Ex. 37 at 2. Justice McGee also noted that,
[Feldstein] further asserts that he is a victim of racial bias. [Feldstein] states that he was the only white employee on his ward and was discriminated against by his fellow employees. He alleges that after bringing this issue to the attention of his supervisors, respondents' solution to ending the discriminatory actions was to terminate [Feldstein's] employment.
Jacoby Aff'd, Ex. 37 at 2-3.
Justice McGee refused to enjoin the BPC from replacing Feldstein because, as defendant acknowledged, if Feldstein is successful with his suit, another "line item" will be provided in which he could be placed. Jacoby Aff'd, Ex. 37 at 3. Justice McGee granted respondents' cross-applications and denied Feldstein's motion for summary judgment because, in part, "[Rule 4.5(f)] clearly states that any decision concerning the treatment of absences in extending a probation term is in the discretion of the appointing authority," Jacoby Aff'd, Ex. 37 at 4, and "[Feldstein] has not set forth any proof of his statements [that prejudice was involved in the decision to extend his probationary period or offer him a second probationary period in a new assignment]." Jacoby Aff'd, Ex. 37 at 5-6. The court wrote: "Exhibits submitted by petitioner himself alluded to instances from which respondents may have concluded that the termination of his services was warranted." Jacoby Aff'd, Ex. 37 at 6.
On or about June 21, 1989, Feldstein served and filed a notice of appeal to the First Department of the Appellate Division, appealing Justice McGee's decision dismissing his Article 78 Amended Verified Petition. Jacoby Aff'd, Ex. 38. Feldstein filed a pre-argument statement with the notice of motion in which he stated, among other things, that "[he] had set forth an uncontroverted primae [sic] facie case that respondents had acted arbitrarily, capriciously, and in an abuse of discretion," Jacoby Aff'd, Ex. 38, P 8, and that "the Court below erred in finding the evidence insufficient to find the same," Jacoby Aff'd, Ex. 37, P 9. On or about June 29, 1989, Justice McGee signed an order to show cause directing respondents to appear on August 18, 1989, to demonstrate why an order should not be entered granting reargument. Jacoby Aff'd, Ex. 39. Feldstein was ordered to serve a copy of the order on respondents on or before July 17, 1989; the document indicates, however, that it was filed on December 8, 1989. The appeal to the First Department was never perfected and it appears that the appeal was abandoned. Jacoby Aff'd, P 36 ("On September 29, 1993, I was advised by the Appeals Clerk, Appellate Division, First Department, of New York Supreme Court, that the First Department has no record of Feldstein's having perfected his appeal.").
D. Federal Administrative Proceedings
Feldstein filed charges of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"), contemporaneously with the NYSDHR, on February 16, 1989. The EEOC issued Feldstein a Right to Sue letter on or about June 11, 1991.
E. Federal Court Proceedings
On or about September 4, 1991, Feldstein filed a pro se complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging discrimination due to race, religion, and sex. Complaint, P 5. In the complaint Feldstein alleged, among other things, that "my co-workers, all of whom were of a different race than my own, denied me equal terms of employment"; and that he complained of the mistreatment to his Team Leader but that she took no action and instead "prepared retroactive and other false 'evaluations' . . . with a request that I be terminated from my position." Complaint, P 13. Plaintiff also alleged that "I was outraged that I was being asked to give up my tenure and shift based solely on racial and other discrimination." Complaint, P 13.
A venue motion by defendant was denied on November 18, 1991. Defendant filed an answer dated November 26, 1991. On April 21, 1992, this court granted Feldstein's motion to amend the complaint and add a cause of action pursuant to 42 U.S.C. § 1983 which was never done. On or about May 24, 1993, appointed counsel for plaintiff filed an Amended Complaint. The factual allegations in the Amended Complaint include the following: (i) "Plaintiff was harassed by his co-workers, all of whom were either black or hispanic, because he is white"; (ii) "Plaintiff complained about his co-workers' discriminatory treatment to his supervisors, all of whom were black"; (iii) as a result of his opposition to the discriminatory treatment, a supervisor at the BPC "filled out false retroactive evaluations of Plaintiff's performance and recommended him for termination." Amended Complaint, PP 9-13. The Amended Complaint alleges four causes of action: discriminatory employment practices in violation of 42 U.S.C. § 2000e-5 and New York Executive Law § 296 (first cause of action); retaliatory discharge in violation of 42 U.S.C. § Section 2000e-3(a) and New York Executive Law § 296(7) (second cause of action); "loss of income and emotional pain and suffering" (third cause of action); and the common law tort of intentional infliction of emotional distress (fourth cause of action). Plaintiff also seeks actual and punitive damages, reinstatement, back pay, and demands a jury trial.
* * * *
Defendant has moved to dismiss all state statutory causes of action pursuant to the Eleventh Amendment of the Constitution of the United States and Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); all state common law causes of action based on, among other things, the statute of limitations; and to strike plaintiff's jury demand and request for compensatory and punitive damages based on the fact that, in the Second Circuit, the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (the "Civil Rights Act of 1991"), is not applied retroactively for cases pending in the district court at the time of the enactment of the Act. Wisdom v. Intrepid Sea-Air Space Museum, 993 F.2d 5, 6-7 (2d Cir. 1993). Plaintiff, in his opposition papers, does not contest any of these assertions and hence defendant's motion to dismiss the state causes of action and to strike his request for a jury trial and compensatory and punitive damages is granted.
Defendant, however, has also moved for summary judgment on the ground that plaintiff's Title VII action is barred by Justice McGee's decision in Feldstein's Article 78 proceeding. Plaintiff opposes this prong of defendant's motion.
I. Claim Preclusion
Defendant argues that Justice McGee's decision denying Feldstein's application for a preliminary injunction and granting defendant's cross-application dismissing the Article 78 proceeding bars plaintiff's Title VII action in its entirety. In determining whether there is any preclusive effect to a prior state court judgment a federal court is required by 28 U.S.C. § 1738 to give that judgment the same effect that it would have had in the courts of the state under state law. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 85, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984) ("state-court judgment in this [Section 1983] litigation has the same claim preclusive effect in federal court that the judgment would have in the . . . state courts."); Allen v. McCurry, 449 U.S. 90, 95-96, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). Section 1738 is fully applicable to Title VII actions. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982) (federal district court was required in Title VII action to give preclusive effect to state administrative agency's rejection of plaintiff's discrimination claim as meritless where the state court upheld that determination).
In O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 429 N.E.2d 1158, 1159, 445 N.Y.S.2d 687, 688 (1981), the Court of Appeals enunciated the standard by which prior judgments in New York state will have a preclusive effect on subsequent actions:
This State has adopted the transactional analysis approach in deciding res judicata [or claim preclusion] issues. . . . Under this address [sic], once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.