Appeal from a judgment of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, granting defendant's motion for summary judgment and holding that plaintiff's employment discrimination action is barred by the full faith and credit statute, 28 U.S.C. § 1738, and by the common law doctrine of res judicata.
Newman and Pratt, Circuit Judges, and Michael A. Telesca, District Judge of the Western District of New York, sitting by designation.
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. § 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. § 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, [72 L. Ed. 2d 262, 102 S. Ct. 1883] (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 § 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 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 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. § 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 ...