Opinion
# 2021-028-500 Claim No. 133971 Motion No. M-96115
01-07-2021
MARCIA PEARSON v. THE STATE OF NEW YORK
MARCIA PEARSON, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice Torres, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2021-028-500 |
| Claimant(s): | MARCIA PEARSON |
| Claimant short name: | PEARSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133971 |
| Motion number(s): | M-96115 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | MARCIA PEARSON, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice Torres, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 7, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211 and 3212:
1. Notice of Motion filed November 4, 2020;
2. Affirmation of Felice Torres filed November 10, 2020 with Exhibits A-M annexed;
3. Affidavit of Marcia Pearson filed November 12, 2020 with Exhibit A annexed;
4. Affidavit of Marcia Pearson filed November 13, 2020 with Exhibit A annexed;
5. Affirmation of Felice Torres filed November 20, 2020.
Filed papers: Claim, Answer
Defendant has moved pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss the claim or, in the alternative, for summary judgment pursuant to CPLR 3212. The claim is based on allegations that claimant was subjected to retaliation, harassment and discrimination in her employment by reason of her age and race.
In 2016 claimant moved into a position as a Quality Control Analyst with New York State Homes and Community Renewal. As alleged in the claim, her duties involved examining documents and processes to insure compliance with Department of Housing and Urban Development regulations for re-certification of tenants receiving assistance under the Housing Assistance Payment program. According to claimant, beginning in 2018, after she began to report deficiencies in the program, she was harassed by a supervisor who, among other things, made her send an email when she, claimant, arrived for work each day; told her to change her work hours and threatened not to approve her time sheet. Claimant also alleges that she was harassed about her productivity as she was told she was not reviewing enough cases each month. In September 2019 claimant was told that she was going back to doing case management work and that she needed to change her work hours. Claimant, who is Black and in her mid-sixties, was replaced in the analyst position by a 37 year-old white woman. According to claimant, her replacement was given a grade 23 while she, claimant, had been doing the work as a grade 18.
In that same month, September 2019, claimant filed a complaint with the New York State Division of Human Rights (NYSDHR) based on the same considerations as are alleged here. Following its investigation NYSDHR concluded that there was no causal nexus between the employer's treatment of claimant and her race/color or age and therefore, no support for a finding of probable cause. In a Determination and Order after Investigation, issued in August 2020, NYSDHR ordered the complaint dismissed and the file closed. That dismissal gives rise to defendant's motion to dismiss based on the doctrine of collateral estoppel.
"Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party …, whether or not the tribunals or causes of action are the same'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "The proponent of the application of the doctrine of collateral estoppel has the burden of establishing an identity of issues, and the opponent of the application of the doctrine has the burden of establishing an absence of a full and fair opportunity to litigate" (Klaper v Cypress Hills Cemetery, 184 AD3d 813, 816 [2d Dept 2020]). In this instance, a comparison of the complaint filed with NYSDHR and the claim filed in this court shows that both allege discrimination based on age and race stemming from the same underlying facts. As claimant has failed to show the absence of a full and fair opportunity to litigate these issues in the NYSDHR proceeding, prosecution of the action here is barred by the doctrine of collateral estoppel (id. at 816).
Accordingly, it is
ORDERED, that the motion is granted and the claim is dismissed.
January 7, 2021
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims