Joseph v. Athanasopoulos
| Decision Date | 05 August 2011 |
| Docket Number | Docket No. 10–1366–cv. |
| Parties | Germelia JOSEPH, Plaintiff–Appellee,v.George ATHANASOPOULOS, Gus Athanasopoulos, Peter Athanasopoulos, Defendants,HDMJ Restaurant, Inc., Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Germelia Joseph, pro se, Baldwin, NY, for Plaintiff–Appellee.
David S. Feather, Garden City, NY, for Defendant–Appellant.Before: KATZMANN and HALL, Circuit Judges, and JONES, District Judge.*KATZMANN, Circuit Judge:
Defendant–Appellant HDMJ Restaurant, Inc. (“HDMJ”) appeals from an order of the United States District Court for the Eastern District of New York (Seybert, J.) insofar as that order denied HDMJ's motion to dismiss Plaintiff–Appellee Germelia Joseph's claims alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112 et seq. This appeal calls upon us to resolve a question of New York's law of res judicata1: Does a New York court's judgment dismissing on timeliness grounds a plaintiff's Article 78 petition seeking review of an adverse administrative determination of her employment discrimination claims preclude the plaintiff from bringing federal discrimination claims in federal court? For the reasons that follow, we believe that this question, as restated at the conclusion of our opinion, warrants certification to the New York Court of Appeals.
The following factual allegations are drawn from Joseph's complaint and records of related state proceedings.
Joseph is a black female of Haitian origin. She worked as a waitress at HDMJ, a Nassau County restaurant known as Yesterday's Diner, between March 2004 and January 2006. Joseph alleges that defendants George, Gus, and Peter Athanasopoulos, all brothers, owned HDMJ in part and supervised Joseph while she worked there.
According to Joseph, the individual defendants “constantly” made racial slurs towards her and at numerous times demanded sexual favors. App. 22. After complaining to Gus Athanasopoulos about a busboy's request for fellatio, Joseph was suspended from work for twelve days. At one point, Joseph asserts, Peter Athanasopoulos pulled a knife from his pocket and told her that he used the knife to cut the throats of waitresses who would not perform fellatio on him.
Joseph also avers that in February 2005, she injured her knee in a car accident. Although this injury was known to the defendants, Peter Athanasopoulos allegedly grabbed Joseph's hand and pulled her downstairs to the restaurant's basement to berate her for complaining that he was directing customers away from the area that she served. Joseph told him that going downstairs would aggravate her injury, but he responded that he did not care. On the day after Joseph complained about this incident to Gus Athanasopoulos, George Athanasopoulos terminated Joseph and told her never to return to the premises.
On March 7, 2006, Joseph filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and a verified complaint with the New York State Division of Human Rights (“DHR”) alleging that HDMJ had violated the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. The DHR investigated the allegations in the complaint and found probable cause to believe that HDMJ had engaged in unlawful employment practices. On April 12, 2007, the DHR held a public hearing at which HDMJ failed to appear. The DHR then issued an order sustaining the complaint and awarding monetary damages. HDMJ appealed from that order on the basis that it did not receive proper notice of the hearing. In 2007, the New York Supreme Court, Nassau County, vacated the order and remanded for further proceedings.
On January 16 and 17, 2008, Administrative Law Judge (“ALJ”) Thomas S. Protano held further hearings, at which HDMJ appeared, where the ALJ received the testimony of Joseph, the individual defendants, and other waitresses who worked at the restaurant. Joseph was represented at the hearings by a DHR attorney. In June 2008, the ALJ issued a report and recommendation concluding that Joseph's claims were not credible. He found that, inter alia, Joseph never complained to George Athanasopoulos that his brothers had harassed her; Peter Athanasopoulos neither carried a knife nor made any crude statements or threats to Joseph; Peter Athanasopoulos did not drag Joseph down a flight of stairs while her knee was injured; George Athanasopoulos investigated Joseph's allegation that a busboy had propositioned her for fellatio and fired the busboy; and Joseph repeatedly engaged in loud, disruptive behavior and otherwise acted inappropriately at work. On July 30, 2008, the DHR adopted the ALJ's report and issued an order dismissing the case. The order stated that any appeal to the New York Supreme Court must be filed within sixty days of the order's service.
Joseph, acting pro se, filed an Article 78 petition in New York Supreme Court, Nassau County, challenging the DHR's order. Joseph's petition was dated October 22, 2008, and was accompanied by a verification sworn on October 24, 2008. HDMJ moved to dismiss on the ground that the petition was untimely under N.Y. Exec. Law § 298, which provides that any such proceeding must be initiated within sixty days of service of the challenged order. In an order and judgment dated March 9, 2009, the Nassau County Supreme Court granted that motion. Although there was no documentary evidence that the DHR order was actually served on Joseph, Joseph admitted that she had received that order on August 2, 2008. The court thus concluded that the petition was untimely because it was not filed within sixty days of August 2, 2008.
Joseph received a right-to-sue letter from the EEOC on November 18, 2008. On January 20, 2009, while her Article 78 proceeding was pending, Joseph filed in federal court a complaint alleging violations of Title VII, the ADA, the NYSHRL, and the New York Labor Law, arising from substantially the same factual allegations that were the subject of the administrative proceedings. The individual defendants moved to dismiss the Title VII and ADA claims against them on the ground that they could not be held liable in their individual capacities under those statutes. Following the Nassau County Supreme Court's dismissal of Joseph's Article 78 proceeding, all defendants filed a second motion to dismiss the complaint on the basis of res judicata.
On October 19, 2009, the district court issued a Memorandum and Decision on the motions to dismiss. That ruling granted the individual defendants' motion to dismiss the Title VII and ADA claims, granted the second motion to dismiss on the basis of res judicata with respect to Joseph's state law claims, denied that motion with respect to Joseph's Title VII and ADA claims, and suggested that the aforementioned denial was suitable for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). See Joseph v. HDMJ Rest., Inc., 685 F.Supp.2d 312, 318 (E.D.N.Y.2009). Accordingly, HDMJ requested that the district court certify such an appeal. The court granted that request and certified for interlocutory appeal the question: “Does res judicata bar Plaintiff's Title VII and ADA claims?”. A motions panel of this court granted HDMJ's motion for leave to appeal from the order. This appeal followed.
“We review de novo the district court's application of the principles of res judicata.” O'Connor v. Pierson, 568 F.3d 64, 69 (2d Cir.2009) (internal quotation marks omitted).
The question presented in this appeal is one of interjurisdictional preclusion: when a New York court enters a judgment dismissing as untimely a plaintiff's challenge to the DHR's rejection of her discrimination claim, does that state court judgment bar the plaintiff from bringing in federal court federal statutory claims arising from the same alleged discriminatory acts?
Our analysis begins with the full faith and credit statute, 28 U.S.C. § 1738, which provides in pertinent part that “[t]he ... 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.” The Supreme Court has held that § 1738 “requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).
In Kremer, the Supreme Court addressed whether “Congress intended Title VII to supersede the principles of comity and repose embodied in § 1738,” and in particular, “whether a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment discrimination claim as meritless when the state court's decision would be res judicata in the State's own courts.” Id. at 463, 102 S.Ct. 1883.2 The Court concluded neither the text, history, nor purpose of Title VII demonstrated any congressional intent to create an exception to § 1738. Id. at 476, 102 S.Ct. 1883.3
The Supreme Court has since held that for purposes of Title VII claims, the rule of preclusion set forth in Kremer does not extend to administrative determinations when the plaintiff has not sought judicial review in state court. University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), presented the question of whether unreviewed state administrative findings were entitled to preclusive effect in federal court when the plaintiff asserted discrimination claims under various federal statutes, including Title VII. The Court concluded that § 1738 does not govern whether ...
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