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Rosa v. City University of New York

April 2, 2007

BIBIANO ROSA, PLAINTIFF,
v.
CITY UNIVERSITY OF NEW YORK, AND BOARD OF TRUSTEES OF THE CITY UNIVERSITY OF NEW YORK, EUGENIO MARIA DE HOSTOS COMMUNITY COLLEGE, AND PROFESSIONAL STAFF CONGRESS/CUNY, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

ORDER

MEMORANDUM OPINION

Plaintiff Bibiano Rosa ("Plaintiff") filed suit against the City University of New York ("CUNY"), the Board of Trustees of the City University of New York, Eugenio Maria De Hostos Community College ("Hostos") (collectively, the "CUNY Defendants"), and the Professional Staff Congress/CUNY (the "PSC") on the grounds that his permanent suspension without pay,*fn1 following his conviction of a felony, violates the Equal Protection Clause, the Due Process Clause, and New York state law. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief.

Both the CUNY Defendants and the PSC have filed Motions to Dismiss Plaintiff's First Amended Complaint. For the following reasons, Defendants' motions are granted.

I. Background

The facts as set forth in this opinion have been taken from the Plaintiff's First Amended Complaint and are assumed to be true for the purpose of a motion to dismiss. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006).

In July 2000, Plaintiff, a tenured associate professor who had been teaching in Hostos's business department for over twenty-five years, pled guilty to third-degree robbery, which is a felony under New York law.*fn2 After pleading guilty, Plaintiff took a leave of absence from his teaching duties. Once his leave of absence expired, Plaintiff sought reinstatement and a full course load.

A collective bargaining agreement between CUNY and the PSC (the "CBA") governs discipline of Hostos's instructional staff. Article 21.12 of that CBA ("Article 21.12"), which applies only to instructional staff members who have been convicted of felonies, modifies and expedites the CBA's general disciplinary procedures.*fn3 On December 20, 2001, the president of Hostos informed Plaintiff that she would recommend that he be discharged, in accordance with Article 21.12. She suspended him, with pay, effective January 31, 2002.

Plaintiff timely filed for arbitration. The arbitrator held hearings and, on February 10, 2003, issued a decision concluding that no extenuating circumstances justified a penalty less severe than discharge.

Following the arbitrator's decision, Plaintiff filed an Article 78*fn4 petition in the New York State Supreme Court (the "Article 78 Court"), seeking to annul the arbitrator's decision. Rosa v. CUNY, No. 17400/03 (N.Y. Sup. Ct. Jan. 6, 2004). The Article 78 Court rejected his claims and dismissed his petition on January 9, 2004. The New York State Supreme Court Appellate Division (the "Appellate Division") affirmed the Article 78 Court's dismissal on December 14, 2004. Rosa v. CUNY, 789 N.Y.S.2d 4 (App. Div. 2004). Plaintiff then filed this lawsuit.*fn5

II. Legal Standard on a Motion to Dismiss

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "accept[] as true the factual allegations in the complaint and draw[] all inferences in the plaintiff's favor." Allaire Corp., 433 F.3d at 249-50. "A complaint may not be dismissed under the Rule unless it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts" entitling her to relief. Id. at 250 (internal quotation marks omitted). A party may raise a defense of collateral estoppel or issue preclusion on a motion to dismiss pursuant to Rule 12(b)(6) where the basis for that defense is set forth on the face of the complaint or established by public record.*fn6 Feitshans v. Kahn, No. 06 Civ. 2125, 2006 WL 2714706, *2, 2006 U.S. Dist. LEXIS 79640, *10 (S.D.N.Y. Sept. 21, 2006). The Court will consider materials outside the record that Plaintiff relied upon in drafting the complaint or that are integral to a complaint if there are no disputes as to the authenticity, accuracy and relevance of such materials. Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991); Feitshans, No. 06 Civ. 2125, 2006 WL 2714706, *2, 2006 U.S. Dist. LEXIS 79640, *10.

III. Discussion

A. Issue Preclusion and Equal ...


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