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Matusick v. Erie County Water Authority

United States Court of Appeals, Second Circuit

January 3, 2014

SCOTT M. MATUSICK, Plaintiff-Appellee-Cross-Appellant,
v.
ERIE COUNTY WATER AUTHORITY, GARY BLUMAN, Individually and in his Official Capacity as Foreman, JOHN KURYAK, Individually and in his Official Capacity as Distribution Engineer, JAMES P. LISINSKI, Individually and in his Official Capacity as Coordinator of Employee Relations, ROBERT MENDEZ, Individually and in his Official Capacity as Director of the Erie County Water Authority, Defendants-Appellants-Cross-Appellees. [*]

Argued: May 4, 2012

Amended: February 25, 2014

Appeal from judgments of the United States District Court for the Western District of New York (Richard J. Arcara, Judge), after a jury trial, based on, inter alia, the instruction to the jury not to give weight to administrative findings, the jury's finding of liability on the plaintiff's state law discrimination claims, the jury's finding of liability on the plaintiff's constitutional claims against the municipal defendant, and the award of punitive damages against the individual defendants. The plaintiff cross-appeals, challenging the amount of the district court's award of attorney's fees. We conclude that the court correctly decided that the administrative hearing officer's conclusions did not preclude the jury from finding discriminatory conduct on the part of the defendants. Insofar as the district court may have erred in not instructing the jury on the preclusive effect of the hearing or its evidentiary weight, such an error did not likely influence the outcome of the proceedings and was therefore harmless. The plaintiff presented sufficient evidence for a reasonable jury to find, as this jury did, that the defendants were liable on his state-law discrimination claims, and the award of backpay is undisturbed. Although the plaintiff sufficiently alleged a constitutional violation, his relevant constitutional rights during the time in question were not clearly established and therefore the individual defendants are entitled to qualified immunity. There was sufficient evidence presented to the jury, however, for a reasonable fact-finder to determine, as the jury did, that the municipal defendant, the Erie County Water Authority, was liable on the plaintiff's claim under 42 U.S.C. § 1983. Accordingly, we vacate the award of punitive damages against the individual defendants, who were protected by qualified immunity, but affirm the finding of liability with respect to the Water Authority. Because Matusick was entitled as a matter of law at least to an award of nominal damages against the ECWA, however, we remand the cause for the limited purpose of requiring the district court to award such damages. Finally, we conclude that the district court did not abuse its discretion in awarding attorney's fees to the plaintiff in an amount substantially less than the amount claimed.

Affirmed in part; reversed in part; remanded in part. Judge Lohier concurs in the majority opinion and in a separate concurring opinion; Judge Raggi concurs in part and dissents in part.[**]

HARVEY P. SANDERS, Sanders & Sanders, Cheektowaga N.Y., for Plaintiff-Appellee-Cross- Appellant.

JOSEPH S. BROWN (Adam W. Perry, Benjamin K. Ahlstrom on the brief), Hodgson Russ LLP, Buffalo, N.Y., for Defendants-Appellants-Cross- Appellees.

Before: SACK, RAGGI, and LOHIER, Circuit Judges. [*]

SACK, Circuit Judge

BACKGROUND

"When an appeal comes to us after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party." Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir. 2006). We set forth the facts of this case in accordance with that requirement.

Scott and Anita Matusick

Plaintiff Scott Matusick, who is white, was employed by the Erie County Water Authority ("ECWA") during 2004 when, he claims, he was assaulted, harassed, and ultimately terminated from his employment because of a romantic relationship he had with an African-American woman, Anita Starks -- now Anita Starks-Matusick. Starks and Matusick met in 2003 but, according to her trial testimony, did not begin dating until January or February 2004. They "became more serious" in March or April 2004: They became engaged. Trial Tr. in Matusick v. Erie County Water Auth., No. 07-cv-00489 (RJA)(HBS)(W.D.N.Y. 2010) ("Trial Tr."), Aug. 19, at 30.[1] At this point, however, they did not share a residence - Matusick lived in Hamburg, New York, and Starks lived in Niagara Falls, New York. In 2005, after they became engaged, Starks moved into Matusick's house in Hamburg. They were married in 2009.

Starks-Matusick has two children who were in their early teens when Starks and Matusick met and began dating. Id. at 31. According to trial testimony, the children had established a close relationship with Matusick. Since 2005, and at least until the time of trial, they have lived with Starks/Starks-Matusick and Matusick in Hamburg. Id at 32.

Discrimination at the ECWA

The ECWA is an independent public benefit corporation and a New York State agency. See N.Y. Pub. Auth. Law § 1050, et seq. Its mission is to provide a safe, reliable source of water to approximately 158, 000 customers in and around Erie County, New York, which includes the City of Buffalo. In order to fulfill its mission, the ECWA operates a Service Center (the "Service Center") in Cheektowaga, New York, east of Buffalo. During 2004 and through 2006, the period relevant to this dispute, the ECWA had approximately 250 employees.

Matusick began working for the ECWA in June 1992. After several years, he held a position as a customer service representative, later becoming a bill collector, and still later, a dispatcher.[2]

During the summer of 2004, after Matusick and Starks became engaged, some of Matusick's coworkers at the ECWA became aware of his relationship with Starks. Many met Starks when, as was often the case, she dropped Matusick off at work. Matusick testified at trial that Robert Mendez, the Director of the ECWA, was among the employees who saw Starks and was aware of her relationship with Matusick.

At about this time, Matusick's relationship with one of his supervisors, Gary Bluman, began to deteriorate. According to Matusick, Bluman was often a ring-leader when it came to harassing him on account of his romantic relationship with Starks. In 2004, according to Matusick, Bluman and his crew went onto Matusick's property, threw lawn equipment on his roof, and duct-taped his door shut. Matusick never reported this incident to anyone at the ECWA because, according to his trial testimony, Bluman had threatened to kill Matusick's family, and Matusick was afraid of what would happen if he reported Bluman to other supervisors.

Tension came to a head in July 2004. According to Matusick's testimony, during the morning of one of his shifts, Bluman entered the room where Matusick was working, "threw some papers in [Matusick's] face[, a]nd . . . said, you're going to do this, do this right fucking now." Id at 66. Matusick apparently told Bluman that he would do what Bluman wanted in a "couple minutes, " because he had yet to complete a project he owed one of the ECWA foremen. Id According to Matusick's testimony, Bluman then "turned [Matusick's] chair totally around so [Bluman] was facing [Matusick]. [Bluman] put a pen to [Matusick's] neck[, ] . . . and he said, you're a fucking [nigger] lover, your - your bitch is a[] [nigger], you're a fucking [nigger] now, too, and I'm going to kill all the fucking [niggers]." Id at 66-67.[3]

Matusick reported the incident to Robert Guggemos and John Kuryak, supervisors at ECWA. He did not, however, formally report it to the human resources department. As a consequence of the incident, ECWA supervisors instructed Bluman to minimize his interactions with Matusick. Nonetheless, within a month and a half after the attack, Bluman resumed making racist comments.

Bluman was not the only one engaged in the harassment. Other employees, including James Lisinski, used the word "nigger" around Matusick, despite the fact that he had made it clear - although we doubt he had to - that he found the word offensive. On one occasion during the summer of 2005, Lisinski remarkably, inasmuch as he was ECWA Coordinator of Employee Relations, told Matusick, "I'm going to get you, I'm going to get you, you [nigger] lover, you're going to get it." Id. at 93 (internal quotation marks omitted).

A co-worker, Brendan Finn, was, according to Matusick, even more persistently antagonistic. In the summer and fall of 2005, Finn made comments to Matusick such as, "[I]s your N[igger] bitch dropping you off [?]" Id at 81. He also allegedly referred to Starks' children as "porch monkeys" or "nigglettes." Id. at 89, 95. In July 2005, Finn became irate when Matusick arrived late for work. Finn chased Matusick around the building, yelling something like, "now you're mother-fucking late like all the other [niggers], now you're a[] [nigger], too." Id. at 76.

Matusick reported this incident along with those involving Bluman and other ECWA employees to Guggemos and Kuryak but, once again, decided against taking his concerns to the human resources department. At trial he stated that he thought that there was no reason to make a formal complaint "[b]ecause [ECWA] supervisors said that they would handle the situation and they would take care of it and th[at] certain individuals would get a talking to and [the supervisors] would handle it." Id at 101.

Other employees, including human resources staff, likely knew about Matusick's concerns, however. During an interview of Matusick regarding a disciplinary problem related to his covering-up a surveillance camera that had been placed in the dispatch office, Lisinski, himself an alleged offender, asked "what is this I'm hearing about you disrupting the work force and talking about, you know, black – black issues, white issues, sexual harassment, and so on and so forth[?]"[4] Id at 91.

Matusick's Disciplinary Problems and Termination

The heart of the factual dispute in this case is whether Matusick's treatment by the ECWA was motivated in significant part by discriminatory intent or whether it was purely a consequence of his failure to perform his duties as a dispatcher. To support their position at trial, the defendants introduced evidence regarding Matusick's long and serious history of disciplinary problems.

On October 26, 1997, the Commissioner of the ECWA visited the Service Center to find Matusick watching television, as the Commissioner later reported in a memorandum. Joint Appendix filed in this Court on July 13, 2011 ("J.A.") 3799.[5] In April 2005, Matusick intentionally blocked a video camera in the dispatch office, which was installed after September 11, 2001, ostensibly for the purpose of protecting the safety of the water supply. But it also served to record the conduct of dispatchers while at work.

Matusick admitted to blocking the camera by placing various objects in front of it on between ten and twenty occasions. In May 2005, he was served with disciplinary charges under section 75 of the New York State Civil Service Law related to this incident.[6] He admitted his guilt of all camera-blocking charges, accepting a 60 day suspension without pay.

To support its position that Matusick's discipline was not discriminatory, the ECWA points to the fact that other ECWA employees were similarly disciplined for blocking the video camera. For example, Joe Marzec, who worked as a duty-man on the night-shift with Matusick, also conceded guilt to a similar charge and accepted a 30-day suspension without pay. Thomas Radich, a control room operator, also admitted his guilt, accepting a 90-day suspension without pay.

Matusick faced more disciplinary charges in November 2005. The ECWA alleged that on October 1 and 20, 2005, Matusick had "failed to properly respond to information, failed to dispatch workers to the scene of water line breaks in a timely manner, and slept on duty." Decl. of James R. Lisinski at 32, J.A. 1306.

After the charges were filed, the ECWA held a section 75 hearing presided over by Michael Lewandowski, an independent hearing officer selected by the ECWA. The hearing was held intermittently on five non-consecutive days between December 2005 and February 2006. Matusick was formally represented by his union representatives. His father, a lawyer, was also present on all hearing dates.

On April 7, 2006, the hearing officer issued a 25-page Report and Recommendation. Id at ¶¶ 52-57, J.A. 1309; see also Report and Recommendation, J.A. 1482-1506. The hearing officer began his factual analysis by noting that the "videotapes of the surveillance camera in the Dispatch office for the dates of October 1, 2005, and October 20, 2005, were not offered into evidence upon the claim of the [ECWA] that the tapes had been automatically recorded over." J.A. 1487. At the heart of Matusick's argument before the section 75 hearing officer was the assertion that "the tapes would provide conclusive evidence that the claims made against him [were] false." Id The hearing officer rejected Matusick's spoliation argument, concluding that the tapes would be unlikely to provide dispositive evidence of guilt or innocence, and that he, the hearing officer, could reach proper conclusions based on testimonial and documentary evidence in the record. Id at 1488.

Ultimately, the hearing officer found Matusick guilty of several of the charges against him. For example, the officer concluded that in the early morning hours of October 1, 2005, Matusick failed to respond to reports of a water-line break for more than an hour. He also found that Matusick had slept while on duty as a dispatcher on October 1, 2005. And the officer found that Matusick had failed to respond to reports of a water-line break on October 20, 2005, for almost four hours before – after receiving three calls from residents – finally dispatching an engineer.

The hearing officer recommended Matusick's dismissal, in light of his continued misconduct and the threat it caused to the integrity of the County's water system. J.A. 1505.

Matusick never expressly argued to the hearing officer that he was treated adversely because of his relationship with Starks. In his Report and Recommendation, the hearing officer did comment on the possibility of disparate treatment when it came to pursuing disciplinary charges for sleeping while on duty at the ECWA: "[Matusick] argues that the evidence . . . shows that employees sleep on the job without consequence therefore it would be disparate treatment to impose [a] penalty on [Matusick] for similar conduct. That argument falls short because while [evidence supports the assertion that] coworkers [were sleeping on the job]/ there was no evidence that management was aware of it. J.A. 1497. The hearing officer did not suggest, however, that Matusick had specifically argued that discrimination on the basis of his romantic relationship with an African-American woman was the reason for his alleged disparate treatment.

On April 24, 2006, Mendez adopted the recommendation of the hearing officer on behalf of the ECWA and formally terminated Matusick. Mendez, the Director of the ECWA, testified at trial that the sole basis for the termination was the Report and Recommendation.

Procedural History

On June 26, 2007, Matusick filed a complaint in State Supreme Court, Erie County, against the ECWA and ten individual defendants: (1) Robert Mendez, Director of the ECWA; (2) Gary Bluman, ECWA foreman; (3) John Kuryak, an ECWA Distribution Engineer; (4) James Lisinski, Coordinator of Employee Relations; (5) David F. Jaros, Senior Distribution Engineer; (6) Karla Thomas, a director of Human Resources; (7) Helen Cullinan Szvoren, also a director of Human Resources; (8) Matthew J. Baudo, Secretary to the ECWA; (9) Robert Guggemos, an ECWA Distribution Engineer; and (10) Joseph Marzec, another employee of the ECWA.

The complaint contained six claims. First, it asserted one for physical assault and battery against Bluman individually. Second, it set forth a claim for unlawful discrimination and hostile work environment against the ECWA and each of the individual defendants in violation of New York Executive Law § 296(1)(a) ("It shall be an unlawful discriminatory practice . . . [f]or an employer . . ., because of an individual's . . . race . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."). Third, it made a claim under the same section for disparate treatment resulting in discipline and termination. Fourth, also under the same section, it asserted a claim for retaliation in violation of state law. Fifth, it asserted a claim under 42 U.S.C. § 1983, alleging that while acting under color of state law the defendants deprived Matusick of his First and Fourteenth Amendment rights under the United States Constitution. Finally, the complaint asserted a claim under New York State law for intentional infliction of emotional distress against all defendants.

On July 27, 2007, the ECWA removed the case to the United States District Court for the Western District of New York under 28 U.S.C. § 1331 and § 1441 on the grounds that the complaint asserted a claim arising under federal law: the claim under 42 U.S.C. § 1983.

After discovery, the defendants moved for summary judgment on all claims. On February 22, 2010, Magistrate Judge Hugh B. Scott, to whom the matter had been referred by the district court judge, issued a Report and Recommendation recommending that the motion be denied in part and granted in part. Matusick v. Erie Cnty. Water Auth., No. 07-cv-489A, 2010 WL 2431077, 2010 U.S. Dist. LEXIS 144193 (W.D.N.Y. Feb. 22, 2010).

First, the magistrate judge recommended denial of the defendants' motion for summary judgment with regard to Matusick's constitutional claims. See id. at *7-*11, 2010 U.S. Dist. LEXIS 144193, at *28-*43. In doing so, he agreed with Matusick's assertions that: (1) he had a constitutional right under both the First and Fourteenth Amendments to maintain a romantic relationship with Starks, see id. at *8, 2010 U.S. Dist. LEXIS 144193, at *34; and (2) a reasonable jury could conclude that the ECWA itself was subject to liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), because the abuse and harassment alleged by Matusick, "if accepted by a trier of fact, is sufficient to establish a custom or practice that is so pervasive and widespread that the ECWA had either actual or constructive knowledge of it." Matusick, 2010 WL 2431077, at *9, 2010 U.S. Dist. LEXIS 144193, at *36.

Second, the magistrate judge recommended that the district court deny the defendants' motion as to Matusick's disparate treatment claim under state law arising from his termination, but that it grant summary judgment as to any disparate treatment claim arising from Matusick's May 2005 suspension. With respect to the suspension, the magistrate judge concluded that "[t]he plaintiff has failed to adequately articulate a basis to distinguish the discipline he received with the discipline received by" similarly situated fellow employees. Id. at *12, 2010 U.S. Dist. LEXIS 144193, at *48. With regard to the termination, however, the magistrate judge reasoned that Matusick had "sufficiently articulate[d] a basis that would allow a rational factfinder to conclude that the proffered reason for Matusic[k]'s termination was not the true reason, " and that Matusick was not precluded from bringing this claim because of the resolution of the section 75 hearing concluding that there was a basis for his termination. Id at *13, 2010 U.S. Dist. LEXIS 144193, at *49-*50.

Finally, with respect to the claim of the maintenance or tolerance of a "hostile work environment" contrary to New York law, the magistrate judge again reasoned that if a trier of fact were to accept Matusick's allegations of serious and sustained harassment, then he would have made out a viable hostile work environment claim. Id at *14, 2010 U.S. Dist. LEXIS 144193, at *53. The magistrate judge recommended dismissal of the plaintiff's "intentional infliction of emotional distress claim" against the defendants and "physical assault and battery" claim against Bluman individually, however, because these claims were barred by the statute of limitations. See id. at *13-*14, 2010 U.S. Dist. LEXIS 144193, at *51-*54.

On June 11, 2010, the district court (Richard J. Arcara, Judge) adopted the magistrate judge's recommendations in their entirety. The case proceeded to trial against all of the defendants named in the original complaint.

* * *

During the course of the trial, the parties debated the role that the hearing officer's determinations following the section 75 hearing should play in the jury's resolution of the case. Although the district court had accepted the magistrate judge's recommended conclusion that the section 75 hearing did not preclude Matusick's discrimination claims, the court allowed the defendants to present evidence to the jury regarding the hearing process, including that the hearings involved an "independent hearing officer hold[ing] a session, much like court here." Trial Tr. Aug. 26, at 149. Mendez testified that the report and recommendation from the section 75 hearing officer concerning Matusick's disciplinary problems was "the strongest . . . report and recommendation that I've ever had towards a termination of an employee." Id at 162. The jury also saw the ECWA document, signed by Mendez, adopting the report and recommendation. The court did not permit the defendants to put into evidence the written report and recommendation by the ECWA hearing officer, however, and it prohibited Mendez from testifying as to the specific information in the report.

The court also explained the role of the report and recommendation in its charge to the jury, stating that they did not bind the jury or force it "in any way to reach a particular outcome on plaintiff's unlawful termination claim, " the central element of which was whether Matusick's interracial relationship was a motivating factor in his termination. Trial Tr., Aug. 31, at 104-05.

At the close of evidence, the defendants made a motion for judgment as a matter of law. See Matusick v. Erie Cnty. Water Auth., 774 F.Supp.2d 514, 519 (W.D.N.Y. 2011) ("Post-Trial Order"). The district court granted that motion with respect to defendants Jaros, Thomas, Szvoren, Baudo, and Guggemos, and with respect to some of the claims against Mendez and Bluman, neither of whom were involved in formulating disciplinary charges against Matusick. See id at 519. The remaining claims proceeded to verdict.

The jury returned a verdict finding the ECWA, Kuryak, and Lisinski liable for unlawful termination; the ECWA, Bluman, Kuryak, and Lisinski liable for the maintenance or tolerance of a "hostile work environment"; and the ECWA, Mendez, Bluman, Kuryak, and Lisinski liable for violation of 42 U.S.C. § 1983. The jury awarded Matusick $304, 775 in back pay on the state unlawful termination claims, and $5, 000 in punitive damages against each individual defendant on the section 1983 claims.[7] Id. at 520.

The defendants, including the ECWA, filed post-trial motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), and for a correction of the final judgment in the event that the judgment survived the 50(b) motion. See id at 517-18.

The defendants argued that the jury's verdict on the unlawful termination claim could not stand as to any of the defendants held liable for that claim, and therefore that the award of backpay should be vacated. See id at 520. At the heart of this assertion was the argument, reasserted here on appeal, that Matusick could not "compare himself to other employees because his disciplinary history was different and because he declined an invitation to settle the charges that led to his Section 75 hearing." Id Further, they asserted that "the race of plaintiffs then-girlfriend [sic] was not a motivating factor behind plaintiffs termination because the weight of the evidence indicates that no one in a position to make or to contribute to the decision to terminate knew about the relationship." Id.

The district court expressed skepticism about the defendants-arguments:

As for plaintiffs evidence that race was a motivating factor behind his termination, the Court is concerned that defendants' remaining arguments are simply an invitation to disbelieve plaintiff and to believe other witnesses. . . . Viewing the evidence in the light most favorable to plaintiff, plaintiff submitted evidence acceptable to a reasonable jury that defendants -directly or by aiding and abetting - terminated plaintiff and disciplined him more harshly than they would have otherwise because of animosity toward his interracial relationship.

Id at 521.

The court also considered the defendants' argument that the section 75 hearing should preclude the plaintiff from re-litigating his discrimination claim because the hearing resolved in the defendants' favor the question of whether there were legitimate bases for Matusick's termination. See id at 520-21. The district court rejected this argument, concluding that the hearing officer never finally decided that the plaintiff should be terminated; he only recommended that course of action. It was Mendez who ultimately decided to adopt the hearing officer's recommendation and terminate Matusick. Id at 521.

The district court then considered objections by the defendants related to the plaintiffs section 1983 claims, and the award of punitive damages arising from them. The court had concluded prior to trial that the plaintiff had a valid section 1983 claim, and that the individual defendants did not enjoy qualified immunity with respect to it. After trial, the court considered the defendants' assertion that the individual defendants could not be held liable under a theory of supervisory liability. Id at 522.

The district court dismissed this argument, noting its "concern[] that defendants have overlooked the evidence that emerged at trial in pursuit of a technical and unsettled legal point." Id The crux of the defendants'position rested on the argument that the Supreme Court's then-recent decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), made clear that under section 1983, '"masters do not answer for the torts of their servants, '" and therefore that '"each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.'" Matusick, 744 F.Supp.2d at 522 (quoting Iqbal 556 U.S. at 677). The district court concluded, however, that despite this evolving legal doctrine, "a reasonable jury could have credited the evidence that the individual defendants actively participated in racial slurs and actively cast plaintiff, and not themselves, as a disruptive member of the ECWA workforce because he complained about racial harassment." Id. at 522.

In considering the defendants' qualified immunity argument, the court did not focus on the defendants' assertion that they were entitled to protection because it was not clearly established that the plaintiff's betrothal relationship was protected by the First Amendment[8] at the time of the incidents. Instead, the court said that "the very first step in assessing a claim for qualified immunity is to identify the discretionary governmental function that required the conduct that a plaintiff claims to be improper." Id. at 525 (citing Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010)). "Critical to . . . qualified immunity cases . . . is that the governmental conduct that is allegedly improper has to match the governmental function that would receive immunity from liability." Id. There was no governmental function that could require the substantial derision the plaintiff faced while working at the ECWA, and therefore, according to the district court the defendants could not raise a qualified immunity defense. See id

Having left the jury's findings on liability undisturbed, the court then addressed whether the jury's award of punitive damages on the section 1983 claim was reasonable in light of the violations at issue. Once again, the court concluded that "a reasonable jury could have decided based on the evidence that defendants were liable under Section 1983 for intentional racial harassment designed to punish plaintiff for his interracial relationship." Id at 526-27.

The defendants appeal.

DISCUSSION

I. The Import of the Section 75 Hearing

Many of the defendants' arguments on appeal challenge the district court's treatment of the section 75 hearing before, during, and after trial. As discussed above, the court (1) adopted the magistrate judge's determination that the hearing officer's findings did not preclude the plaintiff's claims, and repeated that conclusion after trial; (2) instructed the jury that the section 75 hearing did not "force" the jury to resolve any of the questions before it in any particular way; and (3) did not allow the hearing officer's written recommendation into evidence. The defendants dispute all three of these decisions. We conclude that even if the district court erred as a legal matter in instructing the jury on the preclusive effect of the recommendation, this error was harmless and does not require vacatur. See Fed.R.Civ.P. 61.

A. Issue Preclusion

Whether the hearing officer's fact-findings that there was a sufficient and legitimate basis for Matusick's termination precluded the plaintiff from relitigating those issues in the district court is a question of law. We review the district court's answers to such questions de novo. See, e.g., United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

State law governs the preclusive effects in federal court of a state administrative agency's quasi-judicial findings. Univ. of Tenn. v. Elliott, 478 U.S. 788, 796-99 (1986); see also Migra v. Warren City Sch. Dist. Bd. of Educ, 465 U.S. 75, 81 (1984); Kosakow v. New Rochelle Radiology Assocs., P.C, 274 F.3d 706, 728 (2d Cir. 2001) (similar).

"New York courts give quasi-judicial administrative fact-finding preclusive effect where there has been a full and fair opportunity to litigate." Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306, 310 (2d Cir.), cert. denied, 546 U.S. 1062 (2005). This rule applies to findings made by administrative officers after conducting section 75 hearings. See, e.g., In re Cheeseboro, 84 A.D.3d 1635, 1636, 923 N.Y.S.2d 772, 773 (3d Dep't 2011) (deciding that a finding of fact by a section 75 hearing officer that unemployment-insurance applicant had been terminated from prior employment for cause had preclusive effect with regard to a denial of a benefits application).

Like a prior judicial finding of fact, in order to have preclusive effect over a subsequent fact-finding or legal analysis, a prior administrative determination must have resolved the identical issue, and the issue must have been actually and finally decided in the prior adjudication. See Restatement (Second) of Judgments § 27 (1982).[9] But even if an identical issue was necessarily decided in the prior proceeding, issue preclusion does not apply unless there was "a full and fair opportunity [for the party against whom preclusion is sought] to contest the decision now said to be controlling." Buechel v. Bain, 97 N.Y.2d 295, 304, 766 N.E.2d 914, 919, 740 N.Y.S.2d 252, 257 (2001).

1. Finally Decided.

The district court's preclusion analysis did not proceed beyond its observation that the report and recommendation of the hearing officer was a "non-binding recommendation[] regarding plaintiffs termination/ which was therefore not a final decision on the merits ...


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