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Yan Ping Xu v. Hygiene

December 1, 2010


The opinion of the court was delivered by: Denise Cote, District Judge:


X Appearances: For the plaintiff: Yan Ping Xu, pro se

12 Mallar Avenue Bay Shore, NY 11706 For defendants Jane R. Zucker and Dennis J. King: Bertrand Madsen United States Attorney's Office 86 Chambers Street, 5th Floor New York, NY 10007 DENISE COTE,District Judge:

The plaintiff has moved for reconsideration of the August 2, 2010 Opinion and Order granting the motion for judgment on the pleadings filed by defendants Jane Zucker ("Zucker") and Dennis King ("King," and together, the "Federal Defendants"). Xu v. City of New York, No. 08 Civ. 11339(DLC), 2010 WL 3060815 (S.D.N.Y. Aug. 3, 2010) ("the August 2 Opinion").*fn1 For the following reasons, the motion is granted in part.

BACKGROUND The pro se plaintiff, Yan Ping Xu ("Xu") was employed at the New York City Department of Health and Mental Hygiene ("DOHMH") doing data analysis and other computer database work from June 4, 2007 to March 13, 2008, when she was fired. On July 14, 2008, Xu commenced an Article 78 proceeding in New York Supreme Court, alleging that she was given a negative performance review and was fired in retaliation for speaking out about alleged data discrepancies in a DOHMH survey that was sent to the Centers for Disease Control and Prevention ("CDC") over Xu's objection. In the proceeding, she alleged that her employer's actions violated the state whistleblower statute, New York Civil Service Law § 75-b ("§ 75-b"). Pursuant to § 75-b, public employees cannot be fired because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.

N.Y. Civ. Serv. Law § 75-b(2)(a). In order to avail oneself of the protections of § 75-b, [p]rior to disclosing information . . ., an employee shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety. For the purposes of this subdivision, an employee who acts pursuant to this paragraph shall be deemed to have disclosed information to a governmental body . . . .

Id. § 75-b(2)(b).

On January 29, 2009, the Hon. Paul G. Feinman dismissed the Article 78 proceeding "on its merits." Xu v. N.Y.C. Dep't of Health, No. 109543/09, 2009 WL 222096, at *1 (N.Y. Sup. Ct. Jan. 23, 2009) (the "Article 78 Decision"). The court held that Xu failed to state a claim for retaliation under § 75-b because she "did not sufficiently disclose to the agency that the wrong data were being used nor provide it time to correct the error" and because she had failed to establish that the violation created a substantial or specific danger to the public. Id. at *4. Although the court found that there were unresolved questions of fact concerning whether Xu was a probationary employee at the time she was fired and whether her firing was procedurally proper, it held that her petition for relief was premature because she had failed to exhaust her administrative remedies.

Id. Additionally, the court denied Xu's motion to file a late notice of claim, a prerequisite for maintaining her suit. Id. Xu appealed that decision on February 19, 2009.

On March 13, 2009, Xu filed a complaint in the New York Supreme Court against the City of New York and the DOHMH (the "Plenary Action"), alleging the same claims as she had made in the Article 78 proceeding: that she was given a negative performance evaluation and was fired in retaliation for speaking out about the erroneous data. On October 14, 2009, the Hon. Eileen A. Rakower dismissed Xu's § 75-b claim as barred by collateral estoppel and denied Xu's motion to amend the complaint as futile. Xu v. City of New York, No. 103544/09, slip op. at 4 (N.Y. Sup. Ct. Oct. 14, 2009) (the "Plenary Action Decision"). Xu's appeal of the Plenary Action Decision is pending.

Meanwhile, Xu commenced this action on December 30, 2008 ("the Federal Action"). In the Federal Action, Xu brings two sets of claims against the City of New York, DOHMH, and the three individual defendants. The first set of claims alleges employment discrimination based on Xu's national origin, race, color, and gender. The second consists of claims for retaliation for speech and violations of due process. The August 2 Opinion granted the Federal Defendants' motion to dismiss all the claims against them. On October 4, discovery on the claims against the remaining defendants (the "Municipal Defendants") in the Federal Action was stayed pending a decision on Xu's motion for reconsideration.

Xu's employment discrimination claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981, 1983, 1985(3); the Equal Protection Clause; and under New York City and New York State laws were dismissed for lack of subject matter jurisdiction and failure to state a claim. August 2 Opinion, at *2-3. Xu's remaining claims -- a First Amendment retaliation claim, a Due Process Clause claim, and claims under state and local collective bargaining and retaliation statutes (including § 75-b) -- were dismissed on the ground that Xu was precluded from litigating issues that had previously been resolved against her or that she could have litigated in the two state court proceedings. Id. at *3-4. Specifically, the August 2 Opinion found that "the state court [in the Article 78 proceeding] necessarily decided two issues essential to Xu's § 75-b claim against her: the disclosure to a 'governmental body,' and the existence of a 'substantial and specific danger.'" Id. at *3. On that basis, Xu was barred by the doctrine of issue preclusion from re-litigating the § 75-b claim. The August 2 Opinion also found that Xu could have raised her "retaliation, deprivation of due process, and violation of the collective bargaining statute" claims in the Plenary Action, the result being that "the doctrine of claim preclusion bars litigation of the remaining claims here." Thus, all of Xu's non-discrimination claims were dismissed on claim preclusion grounds; issue preclusion provided an additional reason to dismiss the § 75-b claim only.

On August 3, 2010, the New York Supreme Court, Appellate Division decided Xu's appeal of the Article 78 Decision. Xu v. N.Y.C. Dep't of Health, 906 N.Y.S.2d 222 (App. Div. 1st Dep't 2010) (the "Appellate Division Opinion"). The Appellate Division remanded the Article 78 petition for three reasons. First, the Appellate Division held that "it cannot be concluded . . . that petitioner failed to exhaust her administrative remedies." Id. at 226. Second, with respect to the § 75-b claim, the Appellate Division held that "there is no basis for concluding that petitioner's notification [of the data errors] to her supervisor, who apparently then discussed the matter with his superior . . . was insufficient" to state a claim. The court held that, on remand, a hearing should determine "what other persons petitioner should have contacted, and whether her failure to do so precluded the assertion of this lawsuit." Id. at 227. Finally, based on a letter Xu sent to the Department of Investigation advising it of her whistleblower claim within ninety days after she was fired, the Appellate Division ordered that the "directed hearing should also inquire into whether, atleast, the letter to the Department of Investigation gave the requisite notice" that might justify Xu's request to file a late notice of claim. Id. at 229.

On August 13, Xu filed a timely motion for reconsideration of the August 2 Opinion pursuant to Fed. R. Civ. P. 59(e) and Local Rule 6.3. Xu's principal argument is that the Appellate Division Opinion requires this Court to reconsider the August 2 Opinion's holdings ...

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