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May 5, 1997

DONNA HOWELL, JACKIE MAIER, TED DAVIS and GORDON LARSON, Individually and as members of the Windham-Ashland-Jewett Central School District Board of Education, JOSEPH BONITA, Individually and as the former Superintendent of the Windham-Ashland-Jewett Central School District, JANET BAIN, as Assistant Superintendent of the Windham-Ashland-Jewett Central School District, and the WINDHAM-ASHLAND-JEWETT CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendants.

The opinion of the court was delivered by: MCAVOY


 A. Procedural History

 B. Facts

 The plaintiff is a former tenured Principal of the public school, grades K to 12, operated by defendant Windham-Ashland-Jewett Central School District ("WAJ"). In an effort to save money and consolidate the responsibilities of three positions into two, WAJ abolished the positions of Building Principal and Elementary Coordinator, and created the position of Assistant Superintendent. The plaintiff was not hired for the newly created position.

 This case arises from the plaintiff's claims that (1) she was not given a pre-termination hearing before being, in her opinion, discharged from employment from a tenured position, in violation of her due process rights as secured by the Fifth and Fourteenth Amendments of the United States Constitution, and (2) she was not hired as the Assistant Superintendent in alleged contravention of New York Education Law § 2510(1) which requires that tenured employees whose positions are abolished must be hired for a subsequently created position with similar duties.

 The defendants claim that the positions of Building principal and Assistant Superintendent are dissimilar. In general, the defendants allege that there are additional responsibilities connected to the new position, and that the Assistant Superintendent position requires additional certification not required by the Building Principal position. Moreover, the defendants contend that the plaintiff was afforded the opportunity to speak directly with the Superintendent or write to her concerning the Assistant Superintendent position, but declined. It is the defendants' position, therefore, that the plaintiff has received all the process she is due. The Court now turns to the issues presented.


 A. Standard For A Motion For Summary Judgment

 The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Rwy. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990), quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994), quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983). However, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the Court on summary judgment. Id.; See, e.g., Fed. R. Civ. P. 56(e), 1963 Advisory Committee Note; Agosto v. INS, 436 U.S. 748, 56 L. Ed. 2d 677, 98 S. Ct. 2081, (1977); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 472-73, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989) 6 Moore's Federal Practice P 56.02 at 56-45 (2d ed. 1993). "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). It is with the foregoing standards in mind that the Court turns to the issues presented.

 B. Res Judicata and Collateral Estoppel

 Defendants' contend that the common-law preclusion principles of res judicata and collateral estoppel apply to foreclose plaintiff from relitigating an issue previously decided by the Education Commission. Specifically, defendants' assert that the doctrine of collateral estoppel bars plaintiff from relitigating the finding made by the Education Commissioner that the plaintiff was not entitled to the new position of Assistant Supervisor, because that position was dissimilar from her previous position as Building Principal. Plaintiff, in turn, responds that collateral estoppel should not be applied to the present case because the proceedings precipitating the decision of the Education Commissioner failed to provide plaintiff with a full and fair opportunity to fully litigate this issue.

 It is settled law that when a state administrative agency "acting in its judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 16 L. Ed. 2d 642, 86 S. Ct. 1545 (1966), "federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. 788, 799, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986); see also Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104, 105, 115 L. Ed. 2d 96, 111 S. Ct. 2166 (indicating courts favor application of res judicata and collateral estoppel to ...

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