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VEGA v. UNIVERSITY OF NEW YORK BD. OF TRUSTEES
September 28, 1999
EDWARD VEGA, PLAINTIFF,
STATE UNIVERSITY OF NEW YORK BOARD OF TRUSTEES; STATE UNIVERSITY OF NEW YORK MARITIME COLLEGE, FACULTY STUDENT ASSOCIATION OF SUNY MARITIME COLLEGE, INC.; FLOYD H. MILLER; JAMES DESIMONE; HOWARD L. ENGLISH; CAROLYN D. JONES; AND G. PETER COONEY, DEFENDANTS.
The opinion of the court was delivered by: Cote, District Judge.
After being fired from a teaching position at the State
University of New York ("SUNY"), Edward Vega ("Vega") with the
assistance of counsel filed an action in state court for
violations of his rights under New York law ("State Action").
Thereafter, Vega filed this action pro se alleging violations
of his federal statutory and constitutional rights. The
defendants in this action moved to dismiss the federal complaint
and that motion was referred to Magistrate Judge Naomi Reice
Buchwald for a Report and Recommendation ("Report"). Since that
Report was issued, the State Action has been concluded and
counsel has now filed an appearance on Vega's behalf in this
litigation. This Opinion addresses both the objections of the
parties to the Report as well as an additional argument sounding
in res judicata as a result of the conclusion of the State
The facts are set forth below as alleged by the plaintiff.
Beginning in August 1993, Vega was an Adjunct Assistant Professor
in the Humanities Department of the SUNY Maritime College
("Maritime") and was a Professional Writing Tutor at Maritime's
Learning Assistance Center. Beginning in January 1994, Vega was
also hired to be an instructor of English at Maritime's Royal
Saudi Language Program, and in the summer of 1994, he became the
Assistant Dean of Freshman.
In June 1994, Vega was an English Instructor in Maritime's
Summer Institute, teaching a basic composition course ("the
Course"). All of the students in the Course "were of the age and
sophistication to do college level work." On July 21, 1994, Vega
conducted a lesson aimed at reducing the students' repetitive use
of words and ideas in their essay writing ("the Lesson"). The
Lesson used a brainstorming exercise called "clustering." Vega
asked the students to choose a topic "on a matter of public
concern," and by an overwhelming margin the students voted to
discuss "sex," which Vega modified to "relationships/sex." Vega
then wrote the students' ideas on the blackboard "in a graph
representing clusters of related ideas." A "small minority" of
students used sexually explicit language to express their ideas.
Vega did not write any sexually explicit terms on the blackboard
but instead used initials to represent the ideas. When the
brainstorming exercise ended, Vega crossed out the initials meant
to represent sexually explicit terms, and cautioned his students
that "such terms would alienate their readers and should not be
used at all or rarely and then only where it was essential to
enlighten and persuade the reader."
In the final exam for the Course Vega instructed the students
to write an essay taking a position on a controversial subject.
Vega provided suggested topics, but allowed students to choose a
topic of their own as an alternative.
Shortly after the Lesson, Carolyn Jones ("Jones"), the Maritime
Director of Student Support Services and Director of the Summer
Institute, and James DeSimone ("DeSimone"), Maritime's Commandant
of Cadets, "ordered" a student resident assistant "to collect all
of the notebooks and
private journals" of Vega's students, and in particular the
students' notes of the Lesson. More than forty notebooks and
private journals from Vega's students were collected and given to
DeSimone. On August 13, 1994, DeSimone told both Floyd Miller
("Miller"), the President and Chief Executive Officer of
Maritime, and Howard English ("English"), the Vice President of
Academic Affairs, that Vega was using sexually explicit language
to teach English composition in violation of Maritime's sexual
Vega was fired at a meeting with English and G. Peter Cooney
("Cooney"), the Director of Admissions, on August 17, 1994 (the
"August 17 Meeting"). Among other things, they accused Vega of
sexually harassing students, using sexually explicit language in
class that was pornographic and contemptuous of men and women,
writing obscenities on the classroom blackboard, creating a
liability for the College, and posing a physical danger to
students. Vega denied the charges, but acknowledged that "he had
given the students the freedom to express themselves during a
writing exercise and that some students had used sexual terms."
Before the August 17 Meeting Vega had received no notice of any
charges against him nor had he been "informed in any way that
there was any concern about him or his teaching."
On August 24, 1994, Vega met with Miller to complain about the
way he had been treated and requested a hearing to rebut the
allegations against him. Miller "berated" Vega for violating
Maritime's sexual harassment policy and for teaching pornography.
Miller did not allow Vega to defend himself. In September 1994,
DeSimone and James met with members of Maritime's staff and told
them that Vega had been fired for teaching pornography. On
October 3, 1994, Joan Api*fn1 ("Api"), an administrative
assistant, Hope Becker ("Becker"), a Maritime counselor, and
others told seventy or so of Vega's students that he had been
fired for violating Maritime's sexual harassment policy.
On February 10, 1995, Vega's counsel filed an action in New
York Supreme Court alleging defamation, "false light," breach of
contract, and violations of New York's Constitution,
specifically, deprivation of due process and violations of the
right to free speech and free association. Vega named Maritime,
DeSimone and Miller as defendants.*fn2 After the defendants
moved to dismiss, Vega cross-moved for discovery and to amend the
complaint to set forth separate causes of action. A motion for a
second amended complaint was also submitted with demands for
reinstatement, back pay, and the removal from Vega's personnel
file of all negative statements and letters relating to the
termination of his employment. On January 22, 1996, Justice Wilk
dismissed all of Vega's claims other than the defamation claim,
and granted the motion to amend the complaint and for discovery
addressing the defamation claim.
On August 4, 1997, Vega filed this action pro se, and filed
an amended complaint on October 23, 1997. Vega asserts pursuant
to Sections 1983 and 1985 of Title 42 the following five
violations of the United States Constitution: (1) that Maritime's
sexual harassment policy violates the First Amendment by being a
vague and overbroad restriction on free speech and not providing
notice of prohibited conduct; that his termination violated his
First Amendment rights (2) to speak out on matters of public
concern and (3) to academic freedom; that the defendants'
statements and actions, including the failure to provide him with
a hearing before terminating his employment, deprived him without
due process of his liberty interest (4) in his good name and
reputation and (5) in academic freedom. Vega's sole federal
statutory claim is that the defendants violated Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"), and
its implementing regulations. Finally, Vega makes one state law
claim, that is, that the defendants breached his employment
The SUNY Board of Trustees, SUNY Maritime College, Miller,
DeSimone, English, Jones, Cooney, Becker, and Api (collectively
"the SUNY Defendants") moved to dismiss the amended complaint on
the grounds that the action is barred by the doctrines of res
judicata and collateral estoppel, and alternatively that they are
protected by the doctrines of sovereign and qualified immunity.
On February 3, 1998, Vega moved for leave to file a second
On February 24, 1998, the two motions were referred to Judge
Buchwald. On June 19, 1998, the Magistrate Judge granted Vega
leave to file his second amended complaint, which added the
breach of contract claim and the Faculty Student Association of
SUNY Maritime College ("FSA") as a defendant.*fn3 Most of the
individual defendants named in the second amended complaint are
alleged to be agents of FSA. FSA then sought leave to join the
SUNY Defendants' motion to dismiss.
On August 4, 1998, the Report was issued. It recommended that
the motion to dismiss be granted in part and denied in part,
granted FSA's request to join the SUNY Defendants' motion only
with respect to the collateral estoppel argument, and recommended
that this action be stayed pending the outcome of the State
The Court granted all parties until October 16, 1998, to file
objections to the Report and each party objected to part of the
Report. While the objections were pending, the parties informed
the Court that on or about November 4, 1998, they had executed a
stipulation discontinuing the State Action with prejudice. The
plaintiff had executed the stipulation pro se, because his
attorney had been granted leave to withdraw on June 5, 1998. On
December 1, 1998, the Court granted a request from Vega for the
appointment of counsel. On April 8, 1999, counsel filed a Notice
of Appearance on behalf of Vega. The Court set a schedule for
filing supplemental objections to the Report, which all parties
with the exception of FSA did. In addition, the SUNY defendants
argued that the November 4, 1998 dismissal of the State Action
requires dismissal of this action under the doctrine of res
Rule 72 of the Federal Rules of Civil Procedure and the Federal
Magistrates Act, 28 U.S.C. § 636(b)(1)(A), provides the standard
for district court review of a federal Magistrate Judge's order.
For dispositive matters, the District Court "may accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b). The Court shall make a de novo
determination of those portions of the Report to which objections
are made. Id.; United States v. Male Juvenile, 121 F.3d 34, 38
(2d Cir. 1997). With respect to those portions of the Report to
which there has been no objection, the Court "need only satisfy
itself that there is no clear error on the face of the record."
Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)
(citations omitted); see also Pizarro v. Bartlett, 776 F. Supp. 815,
817 (S.D.N.Y. 1991) (court may accept report if it is "not
facially erroneous"). Accordingly, the Court considers the motion
to dismiss de novo where there has been an objection and
reviews the Report for facial error where no party has objected
to Judge Buchwald's recommendation.
A court may dismiss an action pursuant Rule 12(b)(6),
Fed.R.Civ.P., only if "`it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which will entitle him to relief.'"
Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). In considering the motion, the court must take "as true
the facts alleged in the complaint and draw all reasonable
inferences in the plaintiff's favor." Jackson Nat. Life Ins. v.
Merrill Lynch & Co. 32 F.3d 697, 699-700 (2d Cir. 1994). The
court can dismiss the claim only if, assuming all facts alleged
to be true, plaintiff still fails to plead the basic elements of
a cause of action.
When a plaintiff is proceeding pro se, the court must
liberally construe the complaint. See, e.g., Boddie v.
Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). "A complaint should
not be dismissed simply because a plaintiff is unlikely to
succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d
Cir. 1995). The complaint having been filed pro se, it will be
FSA objects to Judge Buchwald's recommendation that it be
allowed to join the SUNY Defendants' motion only with respect to
the collateral estoppel arguments and not the SUNY Defendants'
res judicata arguments. Judge Buchwald found that FSA is being
sued for breaching Vega's employment contract, and that the
issues surrounding the alleged breach are "sufficiently different
from the constitutional issues defended in the state action" that
FSA's interests were not represented in the State Action.
This recommendation by Judge Buchwald does not remove a claim
or defense for FSA and accordingly is non-dispositive. See
Vandewalker v. Quandt's Food Serv. Distribs., 934 F. Supp. 42, 48
(N.D.N.Y. 1996) (Pooler, J.) (citing Rule 72, Fed. R.Civ.P.).
When reviewing a non-dispositive matter to which objections are
made, the Court "shall modify or set aside any portion of the
magistrate judge's order found to be clearly erroneous or
contrary to law." Rule 72(a), Fed.R.Civ.P. FSA does not dispute
that its interests were not represented by SUNY in the State
Action. Since this recommendation is not clearly erroneous, it is
The SUNY Defendants argue that Vega's claims are barred by the
doctrine of res judicata. In a Section 1983 action, "the same
preclusive effect is given to a previous state court proceeding
as would be given to that proceeding in the courts of the State
in which the judgment was rendered." Leather v. Eyck,
180 F.3d 420, 424 (2d Cir. 1999). Under both New York law and federal law,
the doctrine of res judicata provides that "a final judgment on
the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in
that action." Maharaja v. Bankamerica Corp., 128 F.3d 94, 97
(2d Cir. 1997). Under New York law, however, res judicata does
not bar subsequent litigation where the prior action could not
have provided the relief the plaintiff seeks in the subsequent
litigation. See Leather, 180 F.3d at 425; Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994). An Article 78 proceeding does
preclude a later action under the doctrine of res judicata,
however, to the extent that
a plaintiff in a later action brings a claim for
damages that could have been presented in a prior
CPLR article 78 proceeding against the same party,
based upon the same harm and arising out of the same
or related facts.
The SUNY Defendants urge that res judicata precludes this
action because Vega brought or could have brought all of the
claims he pursues here in the State Action. In the State Action,
Justice Wilk converted every claim in Vega's complaint except for
the defamation claim into an Article 78 proceeding and then
dismissed the Article 78 claims.*fn4 Through his Article 78
proceeding Vega sought and could have received reinstatement and
back pay. In his federal complaint Vega seeks compensatory and
punitive damages, as well as reinstatement and back pay. Because
compensatory and punitive damages could not have been awarded in
the Article 78 proceeding, Parker, 690 N.Y.S.2d at 482,
712 N.E.2d 647, these demands for relief are not precluded by res
judicata, see Leather, 180 F.3d at 425. On the other hand, Vega
could have received reinstatement, back pay and "accrued rights
and privileges" in his Article 78 lawsuit, therefore res judicata
bars relitigation of these claims against the SUNY Defendants.
Parker, 690 N.Y.S.2d at 482, 712 N.E.2d 647.
SUNY Defendants next argue that the November 4, 1998
Stipulation of Discontinuance of the State Action ("Stipulation")
precludes any remaining claims in this federal action. Generally,
a stipulation of dismissal with prejudice "is deemed a final
adjudication on the merits for res judicata purposes on the
claims asserted or which could have been asserted" in the prior
action. Israel v. Carpenter, 120 F.3d 361, 365 (2d Cir. 1997),
cert. denied, 522 U.S. 1114, 118 S.Ct. 1049, 140 L.Ed.2d 113
(1998) (internal quotation omitted). "Such a stipulation will
(almost invariably) have preclusive effect notwithstanding a
litigant's post hoc assertion that he intended to preserve
certain claims." Id. Thus, a party will ordinarily not be
relieved from the preclusive effect of a stipulation because his
counsel failed to evaluate carefully its res judicata effect.
Id. (citing Nemaizer v. Baker, 793 F.2d 58, 62-63 (2d Cir.
1986)). Where, however, a party argues that none of those
executing the stipulation intended the scope of the stipulation
to preclude the subsequent action, the court considers the intent
of the parties entering into the stipulation. Id. at 366.
Vega argues that the parties intended the stipulation to
dismiss the state action and to preclude refiling the action in
state court but that they did not intend for it to preclude this
federal action. The scope of the stipulation is governed by state
law. Id. Under New York law, a writing must be interpreted "to
give effect to the intention of the parties" as expressed in the
writing's unequivocal language. Wallace v. 600 Partners Co.,
86 N.Y.2d 543, 634 N.Y.S.2d 669, 671, 658 N.E.2d 715 (1995).
The stipulation entered into by the parties to terminate the
State Action stated:
(Emphasis supplied). The plain language of the Stipulation makes
it clear that the Stipulation precluded only the refiling of the
action in state court. The Stipulation does not address this
action, which was then pending, and accordingly, the ...