Opinion
22-CV-3356 (RA)
06-30-2023
PRIYA HARRIRAM, Plaintiff, v. JOSEPH LUIS FERA, DAWN EWING-MORGAN, BRIDGET BARBERA, ERIC WASHINGTON, LEHMAN COLLEGE, and CITY UNIVERSITY OF NEW YORK, Defendants.
MEMORANDUM OPINION & ORDER
Ronnie Abrams United States District Judge
Plaintiff Priya Harriram brings this pro se action against Defendants Joseph Luis Fera, Dawn Ewing-Morgan, Bridget Barbera, Eric Washington, Lehman College, and the City University of New York (“CUNY”) for violations of Title VII, Title IX, and the New York City Human Rights Law (“NYCHRL”). Defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). For the reasons that follow, the motion is granted.
BACKGROUND
I. Factual Allegations
The following facts are drawn from Plaintiff's complaint and the attached exhibits which, on a motion to dismiss, the Court must assume to be true. See Lynch v. United States, 952 F.3d 67, 74-75 (2d Cir. 2020); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2016) (“It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.”).
Plaintiff began working as a College Assistant at Lehman College in August 2016. Compl. Add. at 4 (attached EEOC Form 5 (11/09)). She was also a student at Lehman College, from at least 2013 to 2017, although she does not specify the exact time period.
On October 5, 2021, Plaintiff sent two letters to the Bronx District Attorney's Office- which are attached to the complaint as Exhibits 1 and 2-about sexual abuse that she allegedly experienced as a student at Lehman College. She also sent these reports to CUNY that same day. Compl. Add. at 1. In the first letter, Plaintiff alleges that-during an unspecified time period- Professor Joseph Fera “[o]n several occasions . . . engaged in deviant sexual behavior during meetings with [her] in the classroom and in his office.” Compl., Ex. 1 at 1. This behavior allegedly included “putting his private part in front of [her] face without [her] consent,” “forcible touching,” “grabbing [her] hands insinuating a sexual act,” and “forcing [her] to perform oral sex without [her] consent.” Id. at 1-2. She describes one incident that occurred in the Fall 2013 term, when Fera allegedly forced her to perform oral sex without her consent after the rest of the class had left the classroom. Id. at 4. She also alleges that, in two classes during the Fall 2013 term and one class during the Spring 2016 term, Fera “would write on the board and stoop down and ask if any one has any questions while looking up some of the females skirt.” Id. Plaintiff reported this behavior to three employees at Lehman College: Nicolas Hanges, the Chair of the Math Department, on October 19, 2017; Stephen Castellano, the BlackBoard Administrator, on February 27, 2018; and Myrsa Bonilla, the Administrative Assistant of the Math Department, on May 23, 2018. Id. at 2-3. She also made reports to “a caseworker,” Jose A. Rodriguez, and to the police. Id. at 3.
In the second letter, Plaintiff alleges that Professor Brian Wynne, who she took a math class with in the Fall 2017 term, “would put a writing pad on his private part forcing [her] to do the math where there was no clip board underneath his crotch.” Id., Ex. 2, at 3. When she asked to write at the table, he allegedly said, “no, there is no space!” Id. Plaintiff also reported this behavior to Hanges, Castellano, Bonilla, and Rodriguez. Id. at 1-2.
Plaintiff then alleges that, in the month following her submission of these sexual abuse complaints, Lehman College took a series of steps to retaliate against her. On October 12, 2021, Plaintiff was interviewed by a Title IX Coordinator, Dawn Ewing-Morgan. Compl. Add. at 1. The day after her Title IX interview, on October 13, 2021, Plaintiff alleges that her “primary job function on ADManagerPlus was eliminated,” although she does not specify what that means. Id. Following her Title IX interview, Plaintiff also alleges that “Public Safety started their intimidation and retaliation tactics by stopping [her] every time [she] was at the Gate swiping [her] ID,” even though “[her] co-workers got to swipe their card and continue walking.” Id.
On November 1, 2021, Plaintiff was again interviewed by Ewing-Morgan, this time about “anonymous emails.” Id. Plaintiff allegedly told Ewing-Morgan that she was “not the author of those anonymous emails,” and she further alleges that the interview was “brief” and Ewing-Morgan “did not explain what the purpose of her interview was.” Id. Plaintiff “informed Ms. Ewing-Morgan that [she] will be filing a complaint on the illegal activities that goes on at the College,” and Ewing-Morgan was allegedly “very dismissive and had an aggressive attitude.” Id. Plaintiff does not include any further detail about this “anonymous emails” incident, except to allege that she was made a “scapegoat.” Id. at 2.
On November 1, 2021, Plaintiff “filed a Whistleblower Complaint” with the “Compliance and Operations Director.” Id. at 1. She then alleges that, on November 8, 2021, her employment at Lehman College was wrongfully terminated due to the “anonymous emails.” Id. at 1-2. She insists that “there is no credible evidence as to who those anonymous emails belong to.” Id. at 2. She further alleges that Lehman College has “blocked [her] access for [her] Alumni Email,” and she is “blocked from CUNYfirst and [she] will not be able to take classes until they remedy [her] account.” Id.
II. The Prior Article 78 Proceeding
On January 18, 2022, Plaintiff initiated an Article 78 proceeding against the same defendants in the Supreme Court of the State of New York, Bronx County, “appealing the decision that Lehman College, the City University of New York made on my termination on November 8, 2021.” ECF No. 25, Ex. A, at 4; see Quire v. City of New York, 2021 WL 293819, at *3 (S.D.N.Y. Jan. 28, 2021) (“In deciding a motion to dismiss, courts may consider matters of public record, including state court documents and decisions.”).
Plaintiff did not name Fera and Ewing-Morgan as defendants in the Article 78 proceeding, but she names them in the factual allegations of her Article 78 petition and describes the same conduct that she alleges in the instant action.
In her Article 78 petition, Plaintiff makes substantially the same allegations as in the instant action. She alleges that, on October 5, 2021, she made two formal reports of sexual abuse to CUNY and the Bronx District Attorney's Office regarding Professor Fera and Professor Wynne; that she had been forced to perform oral sex several times on Professor Fera, and was forced to write on a notepad “without a support backing” on Professor Wynne's “crotch”; that she was interviewed by Ewing-Morgan on October 12, 2021; and that the school retaliated against her by disabling her access to ADManager Plus, stopping her at the gate when she tried to swipe her ID, and ultimately terminating her employment as a College Assistant. ECF No. 25, Ex. A, at 7-10. She also alleges, as she does in the instant action, that on November 1, 2021, she met with Ewing-Morgan regarding “anonymous emails.” One of the emails purportedly claimed that a professor was having an illicit relationship with a student, and another email claimed that professors had made “black racial slurs.” Id. at 10. During the November 1 meeting, Ewing-Morgan asked whether Plaintiff had authored these emails, and Plaintiff said no. On November 8, 2021, Plaintiff received an email stating that she was being terminated from Lehman College due to her involvement with the anonymous emails. She again insists that there is no “credible evidence” she sent the emails. Id. Plaintiff asked the Bronx Supreme Court to reinstate her former position as a College Assistant at Lehman College.
On September 30, 2022, the Bronx Supreme Court issued a decision denying Plaintiff's petition. See ECF No. 25, Ex. C. The court rejected Plaintiff's claim that her termination was in retaliation for her sexual abuse complaints, finding that “her ‘employer presents evidence of specific incidents of inappropriate conduct on petitioner's part which are found to demonstrate a separate and independent bases for the action[,]' i.e. posting of pseudonymous emails.” Id. at 7 (quoting Matter of Crossman-Battisti v. Traficanti, 651 N.Y.S.2d 698, 700 (App. Div. 1997)). The court further rejected Plaintiff's hostile work environment claim because “her sexual misconduct allegations were for alleged actions that took place over four years earlier when she was a student at Lehman and not at the time of her employment.” Id. at 8; see also id. at 2 (“[P]etitioner admitted that . . . the sexual abuse she is complaining about occurred while she was a student at Lehman College, not as an employee of Lehman College.”). Finally, the court concluded that Lehman College cannot be sued under the NYCHRL, because “the City of New York does not have the power to waive the State's sovereign immunity,” and Lehman College is an “instrumentality of the state.” Id. at 7.
III. The Federal Action
On February 1, 2022, Plaintiff filed a Charge of Discrimination with the EEOC, alleging that she had been discriminated against on the basis of sex and retaliated against for reporting sexual abuse. On February 3, Plaintiff received a right to sue letter. She filed this federal action on April 25, 2022, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and the NYCHRL, N.Y.C. Admin. Code § 8-101, et seq. Defendants now move to dismiss.
DISCUSSION
Liberally construed, the complaint alleges claims of discrimination, retaliation, and hostile work environment in violation of Title VII, Title IX, and the NYCHRL. Defendants argue, however, that all of Plaintiff's claims are barred by res judicata. The Court agrees.
“Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” New York v. Mountain Tobacco Co., 942 F.3d 536, 543 (2d Cir. 2019) (quoting Jacobson v. Fireman's Fund Ins. Co., 111 F.3d 261, 265 (2d Cir. 1997)). “A federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered,” which here is New York. Id. In New York, a party seeking to raise a res judicata defense “must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)). Under New York's “transactional approach to res judicata,” a “later claim arising out of the same factual grouping as an earlier litigated claim” is precluded “even if the later claim is based on different legal theories or seeks dissimilar or additional relief.” Mountain Tobacco Co., 942 F.3d at 543; see also Berlitz Schs. of Languages of Am., Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980) (“[W]hatever legal theory is advanced, when the factual predicate upon which claims are based are substantially identical, the claims are deemed to be duplicative for purposes of res judicata.”); Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991) (“[I]t is the facts surrounding the transaction or occurrence which operate to constitute the cause of action [for preclusion purposes], not the legal theory upon which a litigant relies.”).
The elements of res judicata are easily satisfied here. The Bronx Supreme Court adjudicated Plaintiff's Article 78 petition on the merits, resulting in the dismissal of her case, and the same parties are involved in both actions. Plaintiff's claims also arise from precisely the same facts as her Article 78 proceeding, namely, the sexual abuse allegedly perpetrated by Professor Fera and Professor Wynne, the reports she submitted to CUNY and the Bronx District Attorney's Office on October 5, 2021, her subsequent meetings with Ewing-Morgan on October 12 and November 1, the anonymous emails incident, and her termination. See, e.g., Whitfield v. City of New York, 2021 WL 1700592, at *1 (S.D.N.Y. Apr. 29, 2021) (applying res judicata where “[the plaintiff's] claims . . . are premised on the exact same set of facts and alleged misconduct as the facts and misconduct alleged in the state-court action”).
Plaintiff argues that res judicata does not apply because she appealed the Bronx Supreme Court's decision. However, “[r]es judicata also applies to judgments that are pending on appeal.” Sunnen v. U.S. Dep't of Health & Human Servs., 2013 WL 1290919, at *3 (S.D.N.Y. Mar. 28, 2013) (citing Chariot Plastics, Inc. v. United States, 28 F.Supp.2d 874, 881 (S.D.N.Y. 1998)). And in any event, after the filing of Plaintiff's opposition, the New York Appellate Division issued an order deeming Plaintiff's appeal to be withdrawn. See ECF No. 40, Ex. A. Plaintiff further suggests that the Article 78 decision has no preclusive effect because it is incorrect. Even assuming that to be true, “the policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts.” Sheffield v. Sheriff of Rockland Cnty. Sheriff Dep't, 393 Fed.Appx. 808, 813 n.3 (2d Cir. 2010) (quoting Reilly v. Reid, 45 N.Y.2d 24, 28 (Ct. App. 1978)). Thus, “it matters not whether the state court committed error in dismissing [the plaintiff's] case” for preclusion purposes. Whitfield, 2021 WL 1700592, at *2.
The Court does note that “res judicata does not . . . ‘bar subsequent litigation where the prior action could not have provided the relief the plaintiff seeks in the subsequent litigation.'” McGuinn v. Smith, 2012 WL 12887595, at *5 (S.D.N.Y. Sept. 7, 2012) (quoting Vega v. State Univ. of N.Y. Bd. of Trs., 67 F.Supp.2d 324, 333 (S.D.N.Y. 1999)). In Article 78 proceedings- which are “used to challenge action (or inaction) by agencies and officers of state and local government”-“[a]ny damages awarded . . . must be incidental to the primary relief sought by petitioner.” Sheffield, 393 Fed.Appx. at 812 (quoting N.Y. C.P.L.R. § 7806); see also Karamoko v. N.Y.C. Housing Auth., 170 F.Supp.2d 372, 377 (S.D.NY. 2001) (“Article 78 courts are courts of limited jurisdiction and are unable to award monetary damages.”). As a result, where plaintiffs have sought additional compensatory or punitive damages in a subsequent action-including under Title VII or Title IX-courts have ruled that those claims are not precluded by a prior Article 78 proceeding. See, e.g., Doe v. Columbia Univ., 551 F.Supp.3d 433, 461-63 (S.D.N.Y. 2021); Vega, 67 F.Supp.2d at 333-35; Karamoko, 170 F.Supp.2d at 377-78.
There is an exception to this rule where, if a plaintiff brings a “hybrid” action in the Article 78 proceeding-bringing both Article 78 claims and non-Article 78 claims, such as under Title VII or Title IX-then all such claims are precluded in subsequent litigation. Defendants argue that Plaintiff brought a hybrid action here. But while Plaintiff mentioned “discrimination” and a “hostile work environment” in the factual allegations of her Article 78 petition, she did not expressly bring a Title VII or Title IX claim there, nor did the Bronx Supreme Court treat her petition as such. See ECF No. 25, Ex. C, at 7-9 (analyzing Plaintiff's claims under the NYCHRL and New York State Human Rights Law but not any federal statute); see also Sheffield, 393 Fed.Appx. at 812-13 (finding a hybrid action where the plaintiff's petition “clearly sought monetary damages for defamation and violations of Title VII”); Whitfield v. City of New York, 2021 WL 1700592, at *2 (S.D.N.Y. Apr. 29, 2021) (finding a hybrid action where the plaintiff's petition “alleged discrimination and defamation in violation of, among other things, both state law and the First and Fourteenth Amendments”); Monclova v. City of New York, 2017 WL 5495804, at *16 (E.D.N.Y. Mar. 31, 2017) (“It is clear that plaintiff initiated his petition as a hybrid action seeking monetary damages for violations of Title VII claims.”). Indeed, while the factual allegations in Plaintiff's Article 78 petition were wide-ranging, the requested relief was confined to “reinstatement at Lehman College [to her] former position at the Helpdesk as a College Assistant for the Information Technology Center in Carmen Hall Room 108.” See ECF No. 25, Ex. A, at 4. The Court thus declines to treat Plaintiff's Article 78 petition as a hybrid action.
But that rule does not compel a different conclusion here, because in the instant litigation, Plaintiff does not seek monetary damages beyond those that are “incidental” to her allegedly wrongful termination. Specifically, she seeks reinstatement to her former position, and “money damages . . . lost as a result of the wrongful termination,” including “back pay, front pay, vacation, sick days, tuition education reimbursement, travel expenses, [and] stationary expenses.” Compl. at 6. Because these damages could have been recovered in her Article 78 proceeding had she prevailed, Plaintiff is now barred from seeking the same relief in a subsequent lawsuit. See Russo v. City of New York, 705 Fed.Appx. 38, 39 (2d Cir. 2017) (finding that “dismissal on the basis of res judicata is appropriate in this case because Russo raises claims that are premised entirely on the same set of facts and alleged misconduct as the facts and misconduct alleged in his state court action, and because the initial state forum had the power to award the full measure of relief sought in this Section 1983 action.”); Vega, 67 F.Supp.2d at 334 (concluding that the plaintiff's requests for “reinstatement, back pay and accrued rights and privileges” were barred by res judicata as those demands for relief were available in his prior Article 78 lawsuit).
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss on the basis of res judicata is granted. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 24.
SO ORDERED.