- New York High Court May Consider Whether Federal Law Claims Are Barred By Prior Dismissal for Untimeliness of Similar State Law Claims
- October 6, 2011 | Author: John A. Snyder
- Law Firm: Jackson Lewis LLP - New York Office
The United States Court of Appeals for the Second Circuit has certified to New York’s highest state court, the New York Court of Appeals, this question of first impression: whether a plaintiff is barred from pursuing federal law discrimination claims under Title VII and the Americans with Disabilities Act if a New York state court previously dismissed similar state law claims by the same plaintiff as untimely.
In Joseph v. Athanasopoulos, 2011 U.S. App. LEXIS 16130 (2d Cir. Aug. 5, 2011), a former waitress, plaintiff Germelia Joseph, worked for HDMJ Restaurant Inc. for about two years, from March 2004 until January 2006, at Yesterday’s Diner. The plaintiff sued the restaurant and its owners, alleging the brothers who owned the diner, and who were Ms. Joseph’s supervisors, uttered racial slurs at her and demanded sexual favors from her. Additionally, Ms. Joseph injured her knee in a car accident. When she complained that one of the brothers aggravated her injury by pulling her down to the basement for her complaints about customers being diverted from her service area, one of the other brothers who owned the restaurant terminated her the next day. 2011 U.S. App. LEXIS 16130, at *2-3.
Administrative Proceedings before the State Division
In March 2006, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and cross-filed the complaint with the New York State Division of Human Rights (“NYSDHR”). The NYSDHR investigated, found probable cause to believe that the restaurant engaged in unlawful employment practices and held a public hearing. At the initial public hearing in April 2007 (which the restaurant did not attend), the Division issued an order awarding money damages against the restaurant. The restaurant appealed. The New York State Supreme Court, Nassau County, NY (a trial court) vacated the monetary order. After further NYSDHR hearings in 2008, the Division’s Administrative Law Judge found Ms. Joseph’s claims were not credible and dismissed the case. 2011 U.S. App. LEXIS 16130, at *3-5. The NYSDHR adopted the ALJ’s report on July 30, 2008. The order stated that any appeal to the State Supreme Court needed to be filed within 60 days of the order’s service upon the plaintiff. Ms. Joseph filed her state court petition appealing the dismissal on October 22, 2008, accompanied by a sworn verification dated October 29, 2008, beyond the 60-day time period. In March 2009, the State Supreme Court held Ms. Joseph’s petition was untimely and time-barred.
Federal Court Lawsuit on Same Claims
Subsequently, in November 2008, Ms. Joseph received a right-to-sue letter from the EEOC. Ms. Joseph then filed a lawsuit in federal court in the United States District Court for the Eastern District of New York in January 2009, asserting similar state law discrimination claims against the restaurant and its owners under state law — the New York State Human Rights Law and the New York Labor Law — along with federal claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, arising from substantially the same facts already litigated at the NYSDHR. The individual defendants moved to dismiss the Title VII and ADA claims against them on the ground they could sued individually. After the state court dismissal of Ms. Joseph’s appeal, all defendants filed a second motion to dismiss the complaint on the grounds of res judicata (a legal doctrine that provides that a final judgment on the merits of the action precludes the parties from re-litigating claims and issues that were or could have been raised in the prior action). After the Appellate Division of the State Supreme Court (an intermediate appeals court) affirmed the dismissal of Ms. Joseph’s NYSDHR review proceeding because her appeal was untimely, the defendants asked the federal court to dismiss the federal lawsuit as well, arguing that the matter had already been decided and res judicata should bar the federal lawsuit.
On October 19, 2009, the federal district court dismissed the Title VII and ADA claims against the individual owners (only “employers” may be sued under these laws), and granted the second motion to dismiss on the basis of res judicata with respect to Ms. Joseph’s state law claims, but denied the res judicata motion on the federal Title VII and ADA claims. Since the State Supreme Court dismissed Ms. Joseph’s petition as untimely and did not address the substance of the NYSDHR’s findings, the Eastern District of New York held that this dismissal was not “on the merits” and, therefore, did not preclude Ms. Joseph’s claims under Title VII or the ADA. The federal district court further suggested, however, that this last issue was ripe for immediate, interlocutory appeal, as the law was unsettled. The restaurant took the suggestion and appealed the district court’s refusal to throw out the plaintiff’s federal claims.
Question of First Impression Certified by Second Circuit to New York Court of Appeals
The United States Court of Appeals for the Second Circuit Court, however, concluded it was unable to decide the case, since it needed guidance on the question from New York’s highest state court. It determined that a critical and as yet undecided question of New York law on res judicata needed to be resolved authoritatively in order for it to fully address the restaurant’s appeal:
When a New York court enters a judgment dismissing as untimely a plaintiff’s challenge to the [NYSDHR’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?
The Second Circuit accordingly referred the question to the state Court of Appeals. The latter is considering whether to accept and review this certified question.