Opinion
1026-07.
Decided March 31, 2008.
Petitioner, New York State Thruway Authority ("Authority"), moves for an order and judgment pursuant to Article 78 of the CPLR seeking to, inter alia, annul respondent New York State Division of Human Rights' ("Division") Notice of Hearing in the matter of David Walsh v. New York State Thruway Authority, SDHR Case No. 1255306 ("the administrative proceeding"), staying and enjoining all further proceedings on the part of respondent in the same case, and directing respondent to dismiss charges of unlawful discrimination made by David Walsh ("Walsh") on the grounds of res judicata.
For the reasons mentioned hereinafter, petitioner's motion is denied.
PROCEDURAL HISTORY
Petitioner Authority is charged with the mission of caring for and maintenance of New York State's highways. In furtherance of its mission, the Authority maintains a workforce. In March 2003, the Authority commenced a disciplinary proceeding against one of its employees, Walsh. Walsh was charged with several specifications of employee misconduct. In August 2003, Walsh entered into a stipulation ("Disciplinary Stipulation") resolving the charges brought against him. In the agreement, Walsh, inter alia, agreed to a disciplinary probation period of one year during which he was not to engage in similar misconduct otherwise he would face immediate dismissal, without a hearing. On June 25, 2003, during the pendency of the disciplinary proceeding and prior to the execution of the Disciplinary Stipulation, Walsh filed a formal complaint with Division against Authority premised on discrimination based on national origin. See, Petition, Exh A. In the Division complaint, Walsh alleges numerous incidents wherein he was denied overtime, denied a transfer request, found ethnic slurs scrawled or printed in employee work areas, noted an employee wearing a shirt with an ethnic slur printed on it, was treated differently than other employees under similar circumstances, and given needless counseling memos. In response to Walsh's complaint, in September 2003, Authority filed an answer denying Walsh's allegations of discrimination and provided evidence of Walsh's misconduct, including the Disciplinary Stipulation.
During the pendency of the proceeding before Division, Walsh was charged with additional claims of employee misconduct. In accordance with the Disciplinary Stipulation, Walsh was terminated from his employment on March 1, 2004, without a hearing. In April 2004, Walsh commenced a plenary action against Authority in State Supreme Court asserting claims of wrongful termination and breach of contract. Walsh's claims in state court were premised on the Authority's failure to abide by civil service laws and a collective bargaining agreement. See, Petition, Exh. B. More specifically, Walsh alleged that Authority acted arbitrarily and capriciously in violation of the Disciplinary Stipulation in that he was not terminated for the "same or similar" conduct as delineated in the agreement. Authority moved to dismiss Walsh's state court action on the basis of lack of subject matter jurisdiction and Walsh cross-moved to convert the action to an Article 78 proceeding. The trial court purportedly granted Authority's motion to dismiss and denied Walsh's request to convert the plenary action to an Article 78 proceeding. Walsh appealed the court's determination seeking reversal of the trial court's dismissal and renewed his application to convert his plenary action to an Article 78 proceeding. See, Petition, Exh. C. The appellate court granted that portion of Walsh's motion seeking to convert his claims to an Article 78 proceeding, and then dismissed the action on the merits. Walsh v NYS Thruway Authority, 24 AD3d 755 (2nd Dept, 2005).
In its decision, the appellate court stated:
"[a] probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law ( see, Matter of York v McGuire, 63 NY2d 760, 761; Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist. , 1 AD3d 367 , 368). Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason ( see, Matter of Swinton v Safir, 93 NY2d 758, 763; Matter of Johnson v Katz, 68 NY2d 649, 650). "The [employee] bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation" ( Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., supra at 368). Here, the appellant failed to show he was terminated in bad faith or for any illegal reason as the record supports the conclusion that he violated the terms of the disciplinary stipulation during the period of his probation. His claims that the Authority failed to credit his explanations or applied too broad a view of what constituted similar misconduct were inadequate to establish that he was terminated in bad faith ( see, Matter of Soto v Koehler, 171 AD2d 567; Matter of Leon v Meehan, 67 NY2d 613, 615). Id at 757."
Petitioner Authority now moves, pursuant to Article 78, to prevent Division from conducting a public hearing on Walsh's claims of unlawful discrimination on the grounds of res judicata, claiming that because Walsh has already pursued a legal action against the same defendant-employer for the same alleged activity which resulted in a final judicial judgment, he is thus barred from further adjudication. In opposition, respondent Division asserts that Walsh's wrongful termination claims do not raise claims based upon Human Rights Laws. It further asserts, Walsh first elected to seek his claims of discrimination through Division's administrative forum, thus divesting the court of any jurisdiction. Lastly, Division asserts the appellate court's decision never mentions Division.Accordingly, they contend, res judicata isinapplicable to the administrative proceeding.
ARTICLE 78
Generally, an Article 78 proceeding is commenced to "address whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction." Matter of Town of Huntington v. State Division of Human Rights, 82 NY2d 783, 786 ( citing CPLR 7803). In such cases where a body is found to be improperly proceeding, a writ of prohibition will be issued, pursuant to Article 78, to prevent the body from taking further action. Writ of prohibition is an extraordinary remedy which lies, at the discretion of the court, only in limited circumstances. Schachter v. Tomaselli, 105 AD2d 779 (2nd Dept. 1984). The remedy of prohibition lies only where there is a clear legal right and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" Forte v. Supreme Court of State of N. Y, 48 NY2d 179 (1979) citing ( Matter of State of New York v. King, 36 NY2d 59, 62; Matter of Nigrone v. Murtagh, 36 NY2d 421, 423-424). The writ of prohibition must be directed to some inferior judicial tribunal or officer and seek to prevent or control judicial or quasi-judicial action only, as opposed to legislative, executive or ministerial action. Matter of State of New York v. King, 36 NY2d 59, 62 citing Matter of Kaney v. New York State Civ. Serv. Comm., 190 Misc. 944, 951 affd. 273 App.Div. 1054 affd. 298 NY 707.
It is well-settled, however, that the extraordinary writ of prohibition is "not available to correct common procedural or substantive errors, and will not lie where its proponent has access to another adequate legal remedy, unless it would furnish a more complete and efficacious remedy." Matter of Town of Huntington at 786 citing Matter of State of New York v. King, 35 NY2d 59, 62. Prohibition, therefore, may be maintained only "when the clear legal right to relief appears and, in the court's discretion, the remedy is warranted." Id. at 786 citing Matter of Schumer v. Holtzman, 60 NY2d 46, 51.
RES JUDICATA
The doctrine of res judicata serves to preclude a party from re-litigating issues of fact and law decided in a prior proceeding. The doctrine holds that as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action. Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481 (1979). Res judicata precludes renewal of issues actually litigated and resolved in a prior proceeding. Id.; Luscher v. Arrua , 21 AD3d 1005 (2nd Dept. 2005); Koether v. Generalow, 213 AD2d 379 (2nd Dept. 1995); New York Site Development Corporation v. New York State Department of Environmental Conservation, 217 AD2d 699 (2nd Dept. 1995). It also precludes litigation of claims for different relief which arise from the same facts or transaction, which should or could have been resolved in the prior proceeding even if they weren't. Id. The party seeking to avail itself of the doctrine must demonstrate that the issue sought litigated was critical and decided in the prior action and that the party against whom the doctrine is being asserted had a full and fair opportunity to contest the issue. Id. In discussing the doctrine, Justice Cardozo wrote
A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first. It is not conclusive, however, to the same extent when the two causes of action are different, not in form only, but in the rights and interests affected. The estoppel is limited in such circumstances to the point actually determined. (Internal citations omitted). Schuylkill Fuel Corporation v. B. C. Nieberg Realty Corporation, Inc., 250 NY 304, 306-307 (1929).
Even in cases where there are differences in legal theories, res judicata will not allow the re-litigation of claims of the same or similar gravamen. Matter of Riley v. Reid, 45 NY2d 24, 29. It is only when two successive actions arise out of the identical course of dealing, the second may not be barred if the "requisite elements of proof and hence evidence necessary to sustain recovery vary materially." Id. at 31 citing Smith v. Kirkpatrick, 305 NY 66, 72 (1953).
Mutuality of identity of parties is an essential element in any res judicata analysis, and it is well settled that there must be identity of parties in order to invoke the doctrine. Israel v. Wood, 1 NY2d 116 (1956). However, mutuality or identity of parties shall be found if it is demonstrated that the party against whom preclusion is sought, had a full and fair opportunity to litigate all the issues actually litigated or all issues which could have been litigated. Id. The court in Israel, stated that where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues. Id. at 119.
DISCUSSION
Petitioner Authority's motion seeking to annul respondent Division's Notice of Hearing in the administrative proceeding, seeking to stay and enjoining all further proceedings on the part of respondent in the same case, and directing respondent to dismiss all administrative proceeding asserting claims of unlawful discrimination on behalf of Walsh and against Authority on the basis of res judicata is denied. It is well settled that the doctrine of res judicata is applicable to administrative tribunals as well as to state court proceedings. Jason B. v. Novello , 44 AD3d 761 (2nd Dept. 2007) citing Matter of Evans v. Monaghan, 306 NY 312, 323-324. The doctrine holds that a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law on the parties in a litigation and those in privity with them on any subsequent action. Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481 (1979). It precludes renewal of issues actually litigated and resolved in a prior proceeding. Id.; Luscher v. Arrua , 21 AD3d 1005 (2nd Dept. 2005); Koether v. Generalow, 213 AD2d 379 (2nd Dept. 1995); New York Site Development Corporation v. New York State Department of Environmental Conservation, 217 AD2d 699 (2nd Dept. 1995). Similarly, it precludes litigation claims for different relief which arise from the same facts or transaction, which should or could have been resolved in the prior proceeding even if they weren't. Id.
A review of Walsh's state court claims clearly demonstrates that he sought relief due to Authority's alleged failure to abide by the terms of the Disciplinary Stipulation. Walsh alleged the Authority breached the terms of the contract. Pursuant to the terms of the agreement, Walsh pled guilty to disciplinary charges and agreed not to conduct himself in similar fashion. Additionally, Walsh agreed to a one year probation period, commencing on or about September 9, 2003 through September 10, 2004, during which he was not to misbehave or commit similar misdeeds, otherwise he would be dismissed without a hearing. Walsh was ultimately discharged following due to his alleged failure to abide by the terms of the Disciplinary Stipulation. More specifically, Walsh was fired as a result of several work related incidents which occurred from January 22, 2004 through February 4, 2004. It was Walsh's contention that Authority acted arbitrarily and capriciously in the application of the terms of the agreement and that the conduct complained about by Authority did not breach the Disciplinary Stipulation.
Walsh's complaint filed before Division alleges he was denied overtime and treated differently from other employees due to his national origin. He alleges incidents wherein insensitive remarks or racial slurs depicting persons of Irish descent in unfavorable terms existed or were allowed to exist in or about the work site and that Authority failed to take appropriate action. His complaint alleges incidents which occurred between January 2002 through January 2003, February 2003, March 31, 2003, April 4 and 7, 2003, May 19, 2003 and June 10, 2003. The incidents occurred prior to and unrelated to those resulting in his dismissal.
While res judicata precludes the re-litigating of issues of fact and law decided in a prior proceeding, it also precludes re-litigation of matters or issues which could have been litigated in the first action. Israel at 118. In the state court action, the appellate court held that Walsh bore the burden to demonstrate that the Authority's dismissal was premised on "bad faith or illegal conduct." Walsh at 757 citing Matter of Rossetti-Boerner v. Hampton Bays Union Free School Dist ., 1 AD3d 367 , 368 (2nd Dept 2003). Illegal conduct encompasses a constitutionally impermissible purpose or a violation of a statutory or decisional law. Matter of York v. McGuire, 63 NY2d 760 (1984). Courts have defined bad faith or illegal conduct as a dismissal by an employer as retaliation for an employee's whistle blowing activity ( see, McDonnell v. Lancaster, 17 Misc 3d 1101[A] [NY Co. Sup. Ct. 2007]), retaliation for an employee's filing of a union grievance ( see, Johnson v. City of New York , 34 AD3d 484 [1st Dept. 2006]), retaliation for an employee filing an application for a disability pension ( see, Lomando v. Kelly , 33 AD3d 510 [1st Dept.2006]) or due to racial animus ( see, Che Lin Tsao v. Kelly , 28 AD3d 320 [1st Dept.2006]). Similarly, an employer's dismissal of an employee as retaliation for the employee's assertion of claims of discrimination against the employer constitute illegal conduct. Suleman v. State of NY Dept. of Taxation and Finance , 27 AD3d 1040 [3rd Dept. 2006]). Thus, it appears, at least superficially, that Walsh's claims of discrimination "should have or could have been asserted in the state court action." A comparison of the claims asserted by Walsh however, reveal the state court claims and administrative claims rely on different legal theories for recovery and evidence. While it is true that res judicata will not allow the re-litigation of claims of the same or similar gravamen ( Matter of Riley, at 29 citing Matter of Gowan v. Tully, 45 NY2d 32.36), it is also true that res j udicata will only apply if the two actions arise out of the identical course of dealing. Matter of Riley, at 30. If it is determined that the two claims arise out of the identical course of dealing, the second claim or action will not be barred provided there is a showing that the "requisite elements of proof and hence evidence necessary to sustain recovery vary materially." Matter of Riley, at 31 citing Smith v. Kirkpatrick, at 72. In as much as the proof necessary to prevail in each of Walsh's claims of discrimination vary materially in theory and in evidence required to prevail from the state court claims, the doctrine of res judicata is not applicable herein. Based on the foregoing, petitioner's motion must be denied. It is hereby
ORDERED that petitioner's motion is denied.
ORDERED that respondent serve a copy of this decision and order, with notice of entry, upon all parties via certified mail within 21 days hereof.
This constitutes the Court's Decision an Order.