United States District Court, Southern District of New York
March 31, 2003
LATINO OFFICERS ASSOCIATION, ET AL., PLAINTIFFS,
THE CITY OF NEW YORK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
Defendants in this class action move for summary judgment dismissing the wrongful termination claims of plaintiffs Charles Castro, Fernando Sanchez, and Reuben Malave (the "Article 78 Plaintiffs") for lack of subject matter jurisdiction under the Rooker-Feldman doctrine and on the basis of preclusion principles.*fn1
The Article 78 Plaintiffs are three of twenty-two class representatives in this action, which alleges discrimination by the New York City Police Department ("NYPD") on the basis of race, color, and national origin. Plaintiffs generally make three broad allegations: (1) the NYPD maintains and permits a work environment that is hostile to Latino and African-American officers; (2) the NYPD's application of its disciplinary rules and processes embodies a pattern or practice of disparate treatment of Latino and African-American officers; and (3) Latino and African-American officers have been retaliated against for complaining about what they perceived to be a hostile work environment and race-based disparities in discipline.*fn2 They seek declaratory and injunctive relief requiring the NYPD to, inter alia, abolish discrimination, appoint an independent monitor, remove the disciplinary charge process from the NYPD to an external body, and reinstate class members who were terminated in violation of the law.*fn3 Plaintiffs seek also back pay, benefits, and seniority, compensatory and punitive damages, and attorneys' fees.
Each of the three Article 78 Plaintiffs, an NYPD officer, was terminated by the NYPD and previously brought an Article 78 proceeding challenging his termination. The substance of each officer's claim is described below.
A. Charles Castro
1. Article 78 Proceeding
The Police Commissioner dismissed Castro on December 30, 1998 on the recommendation of an Assistant Deputy Trial Commissioner, who found that he had made false statements at an official interview relating to a harassment complaint by a civilian who subsequently was murdered by her former boyfriend, a police officer.*fn4
Plaintiff Castro brought an Article 78 proceeding in April 1999 to challenge his dismissal.*fn5 His petition alleged that: (1) the decisions of the Police Commissioner and Assistant Deputy Police Commissioner were not supported by substantial evidence; (2) the report of the Assistant Deputy Police Commissioner, as adopted by the Police Commissioner, was not supported by substantial evidence; (3) the penalty of dismissal was an abuse of discretion; (4) the divestiture of Castro's pension was arbitrary and capricious; and (5) the divestiture of the pension deprived Castro of due process of law.*fn6
Castro claimed also that his dismissal from the NYPD may have been related to, or in retaliation for, his membership and active participation in the Latino Officers Association ("LOA"), a fraternal organization whose members are current and former Latino and African-American NYPD officers and civilian employees, and that his dismissal reflected disparate treatment in the application of NYPD disciplinary rules and procedures. Castro's petition asserted that he is a "vocal and active member of the Latino Officers Association" and that he had brought "numerous charges of Discrimination and unfair treatment against supervisory personnel of the [P]olice Department."*fn7 Furthermore, Castro alleged in his supporting affidavit that "[t]here have been numerous instances where white officers have been similarly charged by the Police Department, however they were not terminated, and are currently receiving all the benefits afforded to them."*fn8 He then listed the names of ten white officers who allegedly fit this description.*fn9 Plaintiff cross-referenced this allegation in his verified petition.*fn10
The Appellate Division, First Department,*fn11 denied Castro's Article 78 petition, finding that the Commissioner's dismissal of Castro was supported by substantial evidence and that the penalty of dismissal did not "shock our sense of fairness."*fn12 The court did not explicitly address Castro's other claims.
2. Current Allegations
Castro asserts the causes of action previously described.*fn13 He claims that he was threatened and retaliated against for engaging in protected activities, including filing complaints with the NYPD and the Equal Employment Opportunity Commission ("EEOC").*fn14 He alleges further that his termination was the result of disparate treatment in the application of disciplinary rules and processes to Latino and African-American officers. He asserts that "non-Latino officers who have made clearly false and misleading statements during [official] interrogations have been allowed to retire with full pensions, or received lesser penalties than termination, while memory lapses comparable to [his] have not resulted in discipline."*fn15
Castro seeks the same relief sought by the class, including declaratory and injunctive relief to remedy the alleged discrimination wrought by the NYPD on Latino and African-American officers, reinstatement with back pay and seniority, compensatory damages, punitive damages, and attorneys' fees.*fn16
B. Reuben Malave
1. Article 78 Proceeding
Malave was arrested in March 1997 for soliciting sex from two undercover female police officers posing as prostitutes,*fn17 an allegation that later resulted in his being brought up on departmental charges. An Assistant Deputy Trial Commissioner found him guilty and of being unfit for duty due to intoxication.*fn18 The Police Commissioner terminated him on October 16, 1998.*fn19
Malave brought an Article 78 petition on February 8, 1999 to challenge his dismissal.*fn20 The petition contended that the Assistant Deputy Commissioner's findings and recommendations were not supported by substantial evidence, were against the weight of the evidence, and were arbitrary and capricious.*fn21 Malave contended also that the Police Commissioner's acceptance of the hearing officer's findings and recommendation was, "given the alleged misconduct, the petitioner's past work performance and respondent's regular practice, arbitrary, capricious, an abuse of discretion, contrary to law and public policy and shocking to the conscience."*fn22
The Appellate Division, First Department,*fn23 unanimously denied Malave's petition, finding that his dismissal was supported by substantial evidence.*fn24 It stated also that the penalty of dismissal was not "so disproportionate to petitioner's offenses as to shock our sense of fairness."*fn25
2. Current Allegations
Malave asserts the same claims and seeks the same relief as all other plaintiffs.*fn26 In particular, he alleges that "many similarly situated white officers have engaged in far more egregious conduct without being terminated, and have in fact remained on the force and received lesser penalties or have been permitted to resign with full pension."*fn27
C. Fernando Sanchez
1. Article 78 Proceeding
The events leading up to Sanchez's dismissal were as follows: The NYPD brought administrative charges against Sanchez after a September 10, 1996 incident in which, while off-duty, he was stopped by two undercover Internal Affairs Bureau ("IAB") officers who were staking out the house of Sanchez's brother.*fn28 Sanchez refused to comply with an order to surrender his firearm and was found to be in possession of a bogus police shield.*fn29 On July 14, 1997, the Police Commissioner adopted the report and recommendation of the disciplinary hearing officer who adjudicated the charges against Sanchez and dismissed Sanchez from the NYPD, holding the termination in abeyance for a probationary period of one year, commencing August 5, 1997.*fn30
During the term of his probation, administrative charges were brought against Sanchez for comments he made to an Assistant District Attorney and a superior officer following the sentencing of his brother for insurance fraud.*fn31 A third charge for engaging in conduct prejudicial to the good order, efficiency or discipline of the NYPD was brought against him based on a letter he sent to the New York County District Attorney in which he complained about the course and outcome of his brother's trial.*fn32 Sanchez then was terminated without a hearing on October 7, 1998.*fn33
Sanchez brought an Article 78 petition in February 1999 challenging his dismissal from the NYPD.*fn34 He alleged that: (1) the police commissioner violated his rights under New York Unconsolidated Law § 891 and his state and federal rights to due process of law by terminating him without a hearing; and (2) the decision to terminate him was arbitrary and capricious and violated his state and federal rights to freedom of speech, as he was terminated because of statements he allegedly made about his brother's prosecution.*fn35
On September 27, 1999, the Article 78 court denied Sanchez's petition.*fn36 The court found that Sanchez was a probationary employee when he was terminated and thus could be dismissed without a hearing.*fn37 Observing that "[j]udicial review of the termination of a probationary employee is limited to inquiry into whether the termination was arbitrary, capricious or otherwise made in bad faith," the court found that the record demonstrated a rational basis for Sanchez's dismissal and that his termination was neither arbitrary, capricious, nor in bad faith.*fn38 The court noted further that "[t]he record as presented to this court demonstrates that the petitioner failed to present evidence that his termination was retaliatory or discriminatory."*fn39
2. Current Allegations
Sanchez asserts the same counts and seeks the same relief as the other class plaintiffs.*fn40 Specifically, he alleges that "white officers are not served with unwarranted charges, punished so severely for relatively minor infractions, and terminated in violation of their due process rights, to the degree experienced by Sanchez and other Latino officers."*fn41
A. Summary Judgment Standard
Summary judgment may be granted "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"*fn42 The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when `no reasonable trier of fact could find in favor of the nonmoving party.'"*fn43
B. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine embodies the principle that "among federal courts, only the Supreme Court has subject matter jurisdiction to review state court judgments."*fn44 Thus, a federal district court lacks jurisdiction over any claim that "directly challenges, or is `inextricably intertwined' with, a prior state court decision."*fn45
There is debate over the contours and even the continued vitality of the Rooker-Feldman doctrine*fn46 where there is a federal statutory grant of jurisdiction.*fn47 The Second Circuit has held that where "the precise claims raised in a state court proceeding are raised in the subsequent federal proceeding, Rooker-Feldman plainly will bar the action. On the other hand, . . . where the claims were never presented in the state court proceedings and the plaintiff did not have an opportunity to present the claims in those proceedings, the claims are not `inextricably intertwined' and therefore not barred by Rooker-Feldman."*fn48 The situation is altogether different when a plaintiff had an opportunity to raise a claim in an earlier proceeding, but failed to do so. In those circumstances, the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion.*fn49
In this case, the Article 78 Plaintiffs properly could have raised before the Article 78 courts their statutory and constitutional claims that their terminations were discriminatory and retaliatory. Although Article 78 courts are courts of limited jurisdiction and may not hear a general constitutional challenge to a law or regulation,*fn50 they may entertain claims that the application of a rule is unconstitutional.*fn51 Indeed, the Article 78 courts could have upset the terminations of the Article 78 Plaintiffs if they had demonstrated that their terminations were discriminatory or retaliatory.*fn52 Thus, the Court must determine whether the Article 78 judgments are entitled to preclusive effect.
Under the Full Faith and Credit Clause's federal implementing statute, "judicial proceedings of any court of any  State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken."*fn53 Accordingly, the Article 78 judgments command the same preclusive effect in this Court as would be given by the courts of New York.*fn54
One of the leading cases establishing the proper application of Section 1738 in the civil rights context is Kremer v. Chemical Construction Corp.*fn55 The case involved a claim of national origin and religious discrimination by an engineer who, along with a number of other employees, was laid off from his position.*fn56 Some of the other employees later were rehired, but Kremer was not, despite numerous applications.*fn57 The New York State Division of Human Rights ("NYSDHR") found that there was no probable cause to believe that Kremer's employer had engaged in the discriminatory practices Kremer alleged.*fn58 The NYSDHR Appeals Board upheld this determination.*fn59 Kremer filed an Article 78 petition seeking review of the NYSDHR administrative decision, and the state court upheld the Appeal Board's order.*fn60 Kremer then brought a Title VII action in federal court alleging discrimination on the basis of national origin and religion.*fn61
Although various special features of Title VII might have led the Supreme Court to allow Kremer to relitigate his claims free from the preclusive effects of the Article 78 judgment,*fn62 the Court held that because Title VII does not create an exception to the requirement in 28 U.S.C. § 1738 that a federal court give "the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from the judgments emerged," Kremer's claims were barred because New York courts would accord preclusive effect to the Article 78 judgment.*fn63
Thus, the Court turns to the question whether the Article 78 judgments would be given preclusive effect in this case by the New York courts.
Preclusion Under New York law, the doctrine of claim preclusion bars litigation of claims or defenses that were or could have been raised in a prior proceeding where that prior proceeding resulted in a final judgment on the merits and arose out of the same factual grouping as the later claim, even where the later claim is based on different legal theories or seeks dissimilar or additional relief.*fn64 As stated previously, the Article 78 plaintiffs have alleged no claims in this class action that the Article 78 courts could not have heard.*fn65 There remains, however, one further consideration.
The general rule of claim preclusion does not apply:
"where the plaintiff `was unable to . . . seek a
certain remedy or form of relief in the first action
because of the limitations on the subject matter
jurisdiction of the courts or restrictions on their
authority to entertain . . . multiple remedies or
forms of relief in a single action, and the plaintiff
desires in the second action . . . to seek that remedy
or form of relief.'"*fn66
In this case, the plaintiff class seeks the following relief for their allegedly wrongful terminations: declaratory and injunctive relief, back pay, seniority, benefits, compensatory damages, punitive damages, costs, and attorneys' fees.*fn67
The relief available in an Article 78 proceeding is limited as follows:
"If the [Article 78] proceeding was brought to review
a determination, the judgment may annul or confirm the
determination in whole or in part, or modify it, and
may direct or prohibit specified action by the
respondent. Any restitution or damages granted to the
petitioner must be incidental to the primary relief
sought by the petitioner, and must be such as he might
otherwise recover on the same set of facts in a
separate action or proceeding suable in the supreme
court against the same body or officer in its or his
Accordingly, compensatory damages are not available to an Article 78 petitioner who primarily seeks reinstatement, as was the case for each of the Article 78 Plaintiffs in the state proceedings.*fn69
Nor are punitive damages.*fn70
An Article 78 court, however, may award reinstatement and back pay,*fn71
injunctive and declaratory relief,*fn72
and attorney's fees.*fn73
In these circumstances, there is an incomplete overlap between the relief available to the plaintiffs in their Article 78 proceedings and in this case. In consequence, the doctrine of claim preclusion does not apply here.*fn74
2. Issue Preclusion
Although the Article 78 Plaintiffs' claims that their terminations were discriminatory and retaliatory are not barred by claim preclusion, this Court must consider whether issue preclusion bars relitigation of any issues decided previously in the Article 78 proceedings.
As noted, this Court is obliged to give the same issue preclusive effect to the Article 78 proceedings as would be given by the courts of New York.*fn75 Under New York law, issue preclusion "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."*fn76 Furthermore, the party against whom the doctrine is asserted must have had a full and fair opportunity to litigate the issue in the first proceeding.*fn77
Issue preclusion will apply only if it is "quite clear" that the elements have been met so that a party is not "`precluded from obtaining at least one full hearing on his or her claim.'"*fn78 The burden of showing that the issues are identical and necessarily were decided in the prior action rests with the party seeking to apply issue preclusion while the burden of showing that the prior action did not afford a full and fair opportunity to litigate the issues rests with the party opposing its application.*fn79
The Article 78 Plaintiffs do not contest that Article 78 courts are procedurally fair forums in which to litigate a variety of claims.*fn80 Nevertheless, they argue that issue preclusion should not apply because of the "significant statistical, comparative and anecdotal evidence" that has come to light that was not available at the time of the Article 78 proceedings.*fn81 They allege that this statistical information tends to show that the NYPD discriminates against racial minorities.*fn82
Much of the data that underlies Plaintiffs' statistical arguments in this case was available when the Article 78 Plaintiffs brought their proceedings.*fn83 While their counsel elected not to attempt the broad-based attack on the NYPD disciplinary process that now is before this Court, they readily could have done so. Thus, this case is distinguishable from Khandhar v. Elfenbein, on which the Article 78 Plaintiffs rely, in which the Second Circuit found that plaintiff was not estopped, based on a prior arbitration award, from pursuing a damages claim against his treating physicians, where plaintiff was not aware of the extent of his injuries at the time of the arbitration.*fn84
Thus, the Article 78 Plaintiffs have not sustained their burden of showing that they did not have a full and fair opportunity to litigate their claims before the Article 78 courts. The Court now turns to the issues actually and necessarily decided in the prior proceedings.
a. Reuben Malave
The Article 78 court found that Malave's dismissal was supported by substantial evidence and upheld the penalty of dismissal. It found that the finding of police department officials that Malave patronized a prostitute was supported by substantial evidence.*fn85 The court found also that Malave's "own testimony provided substantial evidence in support of the charge that he was unfit for duty by reason of intoxication."*fn86 To the extent Malave seeks to challenge the facts and circumstances of the misconduct giving rise to his dismissal, he is collaterally estopped from doing so, as determination of these factual issues was essential to the Article 78 court's resolution of Malave's petition. This, however, is not necessarily dispositive of his individual claim.
Malave's wrongful termination claims under Title VII (disparate disciplinary treatment and retaliation), Section 1981 (interference with right to contract), Section 1983 (deprivation of various constitutional rights under color of state law), Section 1985(3) (conspiracy to deprive equal protection of the laws or equal privileges and immunities under the laws), and analogous provisions of the NYSHRL and NYCHRL likely will hinge on whether race (or some other impermissible characteristic) was a "motivating factor" in the NYPD's decision to terminate him*fn87 and, if so, whether the NYPD would have terminated him even in its absence.*fn88 A finding that the decision to terminate was supported by substantial evidence — essentially a finding that it was rational*fn89 — does not lead inexorably to the conclusion that race was not a motivating factor in the NYPD's decision to terminate him.*fn90 Similarly, the court's determination that the penalty of termination did not "shock the conscience" essentially means that there was some rational basis for the termination, but does not preclude the possibility that race was a factor in determining the penalty.*fn91 It is possible that race motivated defendants' decisions to terminate Malave, even though defendants had another articulated basis for the termination that the Article 78 court found to be rational.*fn92
Likewise, to the extent Malave raises claims in this action for First Amendment retaliation under Section 1983, this claim is not barred. A necessary element of this claim is that "the defendants' conduct was motivated by or substantially caused by [plaintiff's] exercise of free speech."*fn93 The Article 78 court's finding that Malave's termination was rational is not inconsistent with a finding that it was motivated in some part or caused by his exercise of First Amendment rights.
This scenario is distinguishable from cases in which plaintiffs specifically raised and courts necessarily decided issues in a prior proceeding that were dispositive of causes of action in a later proceeding. For example, in Moccio, the Second Circuit rejected plaintiff's Section 1983 due process and equal protection claims, finding that he previously had litigated issues dispositive of these causes of action.*fn94 An Article 78 court previously had held that Moccio's termination from state employ: (1) was not "arbitrary, capricious or contrary to law;" and (2) was not a penalty that "shock[ed] the conscience."*fn95 In his subsequent federal lawsuit, Moccio claimed that: (1) his termination violated due process protections because it was "arbitrary and capricious;" and (2) the penalty of termination violated the equal protection clause of the Fourteenth Amendment because the penalty was harsher than that doled out to other similarly situated employees.*fn96
The Circuit found that Moccio' federal due process claim was precluded because the "the issue in the Article 78 proceeding — whether the OCA acted in an arbitrary and capricious fashion — is the precise issue that Moccio seeks to raise in his instant due process claim."*fn97 As to plaintiff's equal protection claim, the Second Circuit held that the Article 78 court's finding that Moccio's termination did not "shock the conscience" satisfied the deferential rational basis standard at issue in his claim. In other words, the Circuit found that the Appellate Divisions' finding "states nothing more than that there is a rational relationship between the [employer's] decision to terminate Moccio and the actions in which he was found by the hearing officer to have engaged."*fn98
Unlike the situation in Moccio, Malave neither raised*fn99 nor did the Article 78 court decide, whether his termination was discriminatory or retaliatory. Thus, Malave may move forward with all of his wrongful termination claims, except that he is precluded from relitigating the factual issues that were determined against him — essentially, that he patronized a prostitute and was unfit for duty because he was intoxicated.
b. Charles Castro
The Article 78 court found that Castro's dismissal was supported by substantial evidence and upheld the penalty of dismissal.*fn100 The court did not address explicitly Castro's claim that his dismissal may have been related to, or in retaliation for, his membership and active participation in the LOA. In support of its finding that Castro's dismissal was supported by substantial evidence, the court found that substantial evidence supported the respondents' finding that petitioner deliberately lied in his first official departmental interview to protect a fellow officer, not that he was afflicted by faulty memory.*fn101 To the extent Castro seeks to relitigate the facts and circumstances surrounding the misconduct giving rise to his termination, he is barred by issue preclusion, as these factual findings were essential to the state court's decision.*fn102
Unlike plaintiff Malave, Castro raised in his Article 78 proceeding the arguments that his termination was retaliatory and discriminatory.*fn103 The state court's determination that the police commissioner's decision to terminate him was supported by substantial evidence and that the penalty of dismissal did not "shock our sense of fairness," therefore necessarily implied rejection of Castro's claim that his termination was discriminatory and retaliatory. After all, had the termination been discriminatory or retaliatory, the court could not have found it to have been rational, which is the essence of a finding of support by substantial evidence.*fn104 The fact that the state court never expressly rejected Castro's claims that his dismissal was discriminatory and retaliatory does not alter this analysis.*fn105 By contrast, the state court's finding that Malave's dismissal was rational did not preclude the possibility that prohibited discrimination was a motivating factor in his termination.
As the Article 78 judgment in Castro's case necessarily rests on findings that Castro was a victim neither of discrimination nor retaliation and that there was a rational basis for the finding that the charges against him were true, Castro is barred from relitigating the wrongful termination claims.
c. Fernando Sanchez
The issue presented to the Article 78 court in Sanchez's case was whether Sanchez's termination was improper as a matter of state law. Under New York law, a probationary employee may be dismissed without either a hearing or a statement of reasons, provided the dismissal was not arbitrary or capricious, in bad faith, or in violation of public policy.*fn106 The Article 78 court made two findings that Sanchez: (1) could be terminated without a hearing because he was a probationary employee; and (2) failed to sustain his burden of presenting competent proof that his dismissal was for an improper reason or in bad faith.*fn107 Specifically, the court stated: "The record as presented to this court demonstrates that the petitioner failed to present evidence that his termination was retaliatory or discriminatory."*fn108
The court's comment about petitioner's failure to present evidence that his termination was discriminatory was not responsive to any issue raised in Sanchez's Article 78 petition, which did not mention discrimination based on any impermissible characteristic. The issues of retaliation and discrimination therefore were not actually litigated and necessarily decided. Thus, he is not precluded from litigating his claims of wrongful termination due to disparate treatment.
Sanchez, however, did raise in his petition the contention that he was terminated in retaliation for exercising his First Amendment rights.*fn109 Thus, the court necessarily rejected Sanchez's First Amendment retaliation claim, finding that Sanchez had failed to meet his burden of establishing by competent evidence that his termination was in bad faith or for illegal reasons. As this finding was essential to the court's decision — it was charged with determining whether Sanchez's termination was improper as a matter of state law — Sanchez is precluded from relitigating the court's finding that his dismissal was not in retaliation for his exercise of his First Amendment rights.*fn110
This conclusion is not affected by the fact that the state court made an alternative finding that Sanchez properly was discharged because of his unsatisfactory performance.*fn111 That finding, unlike the determination that Sanchez's termination was not retaliatory, was not essential to the state court's decision because, absent discrimination, Sanchez, a probationary employee, could have been discharged for any reason or no reason as all.*fn112
Accordingly, Sanchez is barred from litigating in this action the claim that his dismissal was in retaliation for his exercise of his First Amendment rights, although plaintiff may proceed with the balance of his wrongful termination claims.
For the foregoing reasons, defendants' motion for summary judgment dismissing the Article 78 Plaintiffs' wrongful termination claims is granted to the extent that:
(1) Castro's wrongful termination claim is dismissed;
(2) Malave is precluded from relitigating the issues
whether he patronized a prostitute and that he was
unfit for duty by reason of intoxication; and (3)
Sanchez is precluded from relitigating the issue
whether his termination was in retaliation for his
exercise of his First Amendment rights.
The motion is denied in all other respects.