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September 28, 1999


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 Action.


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.

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 contract.

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 amended complaint.

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 Action.

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 judicata.


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 liberally construed.

1. FSA

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 adopted.

2. Res Judicata

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.

Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 690 N.Y.S.2d 478, 481, 712 N.E.2d 647 (1999) (emphasis supplied). The damages that may be obtained through an Article 78 proceeding are circumscribed by the nature of that action. Only those damages that are "incidental to the primary relief sought" may be awarded in an Article 78 proceeding. N.Y.C.P.L.R. § 7806; Parker, 690 N YS.2d at 482, 712 N.E.2d 647. Section 1983 compensatory damages for pain and suffering or punitive damages are not "incidental damages" in an Article 78 proceeding brought to obtain reinstatement and back pay. See Parker, 690 N.Y.S.2d at 482, 712 N.E.2d 647.

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:

  the undersigned, EDWARD J. VEGA, plaintiff pro se and
  Dennis Vacco, Attorney General for the State of New
  York, attorney for defendants STATE UNIVERSITY OF NEW
  DESIMONE AND FLOYD H. MILLER, that whereas no party
  hereto is an infant or incompetent person for whom a
  committee of conservatee has been appointed and no

  not a party has an interest in the subject matter of
  the action, the above entitled action be and the same
  hereby is discontinued with prejudice to renew in
  State Court without cost to either party as against
  the other. This stipulation may be filed without
  further motion with the Clerk of the Court pursuant
  to Rule 3217 of the CPLR.

(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 ...

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