Bray v. New York Life Ins., 1183
| Citation | 851 F.2d 60 |
| Decision Date | 28 June 1988 |
| Docket Number | D,No. 1183,1183 |
| Parties | 47 Fair Empl.Prac.Cas. 278, 47 Empl. Prac. Dec. P 38,123, 57 USLW 2082 Evelyn Deloris BRAY, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE, Defendant-Appellee. ocket 87-7963. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Judith Reed, New York City (Julius LeVonne Chambers, Ronald L. Ellis, of counsel), for plaintiff-appellant.
Richard J. Reibstein, New York City (Epstein, Becker & Green, Steven A. Moll Before NEWMAN and PRATT, Circuit Judges, and TELESCA, District Judge of the Western District of New York, sitting by designation.
Susan Greenberg, Asst. Gen. Counsel, New York Life Ins. Co., of counsel), for defendant-appellee.
Evelyn Deloris Bray appeals from a judgment of the United States District Court for the Southern District of New York, Duffy, J., granting defendant's motion for summary judgment and dismissing her employment discrimination claim. The decision is reported at 677 F.Supp. 127 (S.D.N.Y.1987). The district court held that Bray is precluded, under 28 U.S.C. Sec. 1738 and the common-law doctrine of res judicata, from litigating her claim in federal court, because the New York Supreme Court dismissed, on statute of limitations grounds, her appeal from an administrative determination of the New York State Division of Human Rights ("NYSDHR") which found no probable cause to believe that the complained of discrimination occurred.
The question presented is whether the state court judgment dismissing plaintiff's petition for review of the NYSDHR determination on the ground that plaintiff failed to timely file the petition or serve the defendant precludes plaintiff's federal court claims brought under Title VII and 42 U.S.C. Sec. 1981. Because New York treats a dismissal on statute of limitations grounds as a disposition on the merits sufficient to bar a second action, we must affirm.
Plaintiff is a black female who worked as a training apprentice field underwriter for the defendant from August 1980 until February 1984, when she was discharged. Shortly after her termination, plaintiff, acting pro se, filed complaints with the NYSDHR and the Equal Employment Opportunity Commission ("EEOC"), alleging that she had been denied equal terms and conditions of employment and that she had been dismissed from her job because of her race, color, and sex, in violation of the New York State Human Rights Law.
After investigating the matter and reviewing the parties' written submissions and exhibits, NYSDHR issued, on April 25, 1985, a determination and order, which concluded that there was "no probable cause to believe that the respondent(s) engaged in the unlawful discriminatory practice complained of." The determination, which plaintiff received, also contained the following paragraph:
PLEASE TAKE FURTHER NOTICE that a complainant who seeks state judicial review, and receives an adverse decision therein, may lose his or her right to proceed subsequently in federal court under Title VII, by virtue of Kremer v. Chemical Construction Co., 456 U.S. 461 [102 S.Ct. 1883, 72 L.Ed.2d 262] (1982).
Plaintiff then filed, on June 25, 1985, what she characterized as an application pursuant to Article 78 of the New York Civil Practice Laws and Rules for a judgment reversing the NYSDHR determination.
New York Life Insurance, acting as a respondent in the state court proceeding, filed an answer that denied the allegations in plaintiff's petition and raised a number of affirmative defenses, including that Bray's petition was not filed with the court or served on the defendant within sixty days.
On September 12, 1985, the New York Appellate Division, Second Department, transferred the petition to the New York State Supreme Court, Westchester County, pursuant to an amendment to N.Y.Exec.Law Sec. 298 (McKinney Supp. 1988) that requires petitions for review of administrative determinations under the New York Human Rights Law to be directed in the first instance to the state supreme court in the county in which the allegedly discriminatory practice occurred. The order transferring the proceeding does not indicate whether a copy was sent to the plaintiff, and plaintiff was unaware of this transfer.
On September 20, 1985, the EEOC issued its own finding of no probable cause and On December 3, 1985, Bray filed a complaint with the southern district pro se clerk's office, raising claims under Title VII and 42 U.S.C. Sec. 1981. In its answer defendant raised as an affirmative defense Bray's election of state court review. The court granted Bray's application for appointment of counsel on April 4, 1986, and on May 28, 1986, a law firm served a notice of appearance for Bray.
notified Bray of her right to initiate an employment discrimination action in federal court within 90 days of receipt of the right-to-sue letter.
On August 18, 1986, Justice Rubenfeld issued the supreme court's decision and order denying Bray's petition for review "for failure to commence this proceeding within sixty days as required by section 298 of the Executive Law." Plaintiff was one day late in filing the petition. In addition, Justice Rubenfeld noted that Bray had not properly served either the defendant or NYSDHR.
Defendant thereafter in this action moved for summary judgment in the district court on the ground that the state court judgment denying Bray's petition for review barred her from relitigating her employment discrimination claim in federal court. The district court granted the motion because it concluded, reluctantly, that the state court's dismissal would be given preclusive effect by the New York courts and must, therefore, be given similar effect in federal court. 677 F.Supp. 127, 130 (S.D.N.Y.1987).
On appeal, Bray argues (1) that giving preclusive effect in a Title VII action to an unreviewed determination of a state administrative agency is contrary to the decisions in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), and Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); and (2) that the principles underlying full faith and credit are inapplicable in this case because plaintiff did not have a full and fair opportunity to litigate the merits of her discrimination claim. Defendant argues that because New York treats a dismissal on statute of limitations grounds as a dismissal on the merits, the federal court must give preclusive effect to the state court judgment.
Judge Duffy's opinion provides a more-than-sufficient basis upon which to rest our affirmance, but there is an additional issue that we think warrants discussion. This issue, which was not briefed by the parties in any of the memoranda submitted on the summary judgment motion to the district court, concerns whether University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), where the Court held that unreviewed administrative fact-finding does not have preclusive effect in Title VII cases, precludes a federal district court from giving res judicata effect to a state court judgment dismissing, on statute of limitations grounds, a petition for review of the merits of a state administrative proceeding. We conclude that University of Tennessee v. Elliott does not create an exception to the established rule, see Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), that requires federal courts to give preclusive effect to state court judgments whenever the courts of that state would do so.
At first glance, this case seems to fall somewhere between the rule governing application of Sec. 1738 as set out in Kremer and the policy underlying Elliott. In Kremer, the Court held that because Title VII does not create an exception to the requirement in 28 U.S.C. Sec. 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 which the judgments emerged", id. at 466, 102 S.Ct. at 1889, a federal court in a Title VII case must give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment discrimination claim. Id. at 463, 102 S.Ct. at 1888. Accord Sinicropi v. Nassau Cty., 601 F.2d 60, 62 (2d Cir.) (per curiam) (), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979). See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 85, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984) (); Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) ().
The Supreme Court has subsequently suggested that although Kremer declined to decide whether Title VII claims can be brought only in federal courts, "state law determines at least the issue preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts." Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985). In this case, the result is the same whether res judicata (claim preclusion) or collateral estoppel (issue preclusion) applies: Bray is precluded from relitigating her claims of race and sex discrimination in federal court.
On appeal, Bray argues for the first time that Elliott prohibits a federal court from giving preclusive effect to an administrative agency's unreviewed decision...
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