17‐775‐cv Razzano v. Remsenburg‐Speonk Union Free Sch. Dist., et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of September, two thousand eighteen.

PRESENT: ROBERT D. SACK, REENA RAGGI, DENNY CHIN, Circuit Judges.

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JANICE RAZZANO, Plaintiff‐Appellant,

v. 17‐775‐cv

REMSENBURG‐SPEONK UNION FREE SCHOOL DISTRICT, KATHERINE SALOMONE, THOMAS KERR, LISA FOX, KEVIN FREDERICO, CECILIA SPELLMAN‐ FREY, JOEL PETERSEN, in their official and individual capacities pursuant to NYEL § 290 et seq., Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: JANICE RAZZANO, pro se, East Moriches, New York.

FOR DEFENDANT‐APPELLEES: JELTJE DEJONG, Devitt Spellman Barrett, LLP, Smithtown, New York.

Appeal from the United States District Court for the Eastern District of

New York (Wexler, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is VACATED

and the case is REMANDED.

Plaintiff‐appellant Janice Razzano, pro se, appeals the district courtʹs ruling

entered March 16, 2017, in favor of defendant‐appellee Remsenburg‐Speonk Union Free

School District (the ʺSchool Districtʺ), dismissing her complaint alleging discrimination

and retaliation in violation of the Americans with Disabilities Act of 1990,

, and the New York State Human Rights Law. The judgment memorialized an

oral ruling dismissing the case ʺpursuant to the decision rendered by the New York

State Appellate Department, plaintiffʹs failure to respond to requests of her counsel, and

plaintiffʹs failure to prosecute.ʺ Appʹx 10. The district court later clarified that the

Appellate Divisionʹs decision precluded Razzanoʹs complaint ʺunder the doctrines of

2 res judicata and collateral estoppel.ʺ1 Docket Entry 11/13/2017. We assume the

partiesʹ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

I. Failure to Prosecute

A district court may dismiss an action ʺ[i]f the plaintiff fails to prosecute

or to comply with [the Federal Rules of Civil Procedure] or a court order.ʺ Fed. R. Civ.

P. 41(b). This Court reviews Rule 41(b) dismissals for abuse of discretion. Baptiste v.

Sommers,

(2d Cir. 2014). Although review for abuse of discretion

ʺsuggests great deference,ʺ this Court recognizes that ʺdismissal is a harsh remedy and

is appropriate only in extreme situations.ʺ Lucas v. Miles,

(2d Cir.

1996). In reviewing a Rule 41(b) dismissal, we consider five factors:

(1) the duration of the plaintiffʹs failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the courtʹs interest in managing its docket with the plaintiffʹs interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.

Baptiste,

(quoting Lucas,

). ʺNo single factor is generally

dispositive,ʺ and we review the dismissal ʺin light of the record as a whole.ʺ

1 See United States v. Spallone,

(2d Cir. 2005) (ʺ[W]here an order or judgment is unclear, a court retains inherent authority to interpret ambiguities.ʺ).

3 Although ʺ[w]e do not expect district courts to make exhaustive factual

findings,ʺ when the district court does not refer to any of the above factors, as is the case

here, this Court will conduct its own analysis. Id. at 217. We cannot, however,

confidently do so here because conferences pertinent to that analysis were not recorded

or transcribed, precluding us from determining what statement Razzanoʹs counsel

made to secure the initial stay of discovery. Documents submitted to this Court have

been equivocal. Compare Defs.ʹ Mar. 21, 2017 Letter, Docket No. 31 (stating that

plaintiffʹs counsel had represented that the federal case would be withdrawn if the state

appeal was unsuccessful), with Letter Requesting Stay, Docket No. 22 (requesting stay,

but not stating that case would be withdrawn), and Appellantʹs Br. at 23 (asserting that

plaintiff never intended to abandon federal case). Accordingly, because the judgment

by itself does not support the sanction of dismissal, we hereby vacate the judgment of

dismissal and remand for reconsideration of the issue on a more fully developed

record.2

2 We recognize the challenges this presents for the district court, given Judge Wexlerʹs passing and the need for reassignment to a new judge. Nevertheless, the district court is better situated than this Court to develop the record and assess the propriety of dismissal in the first instance.

4 II. Preclusion

Insofar as the district court also invoked collateral estoppel and res

judicata to support dismissal, we again confront record deficiencies.

Collateral estoppel, or issue preclusion, bars the re‐litigation of an issue

that was previously decided, regardless of whether the two suits are based on the same

cause of action. Postlewaite v. McGraw‐Hill,

(2d Cir. 2003). We apply

New York collateral estoppel law. Sullivan v. Gagnier,

(2d Cir. 2000).

The Section 3020‐a proceeding resulting in Razzanoʹs termination was ʺan

administrative adjudication that must be given [issue] preclusive effect.ʺ Burkybile v.

Bd. of Educ. of Hastings‐On‐Hudson,

, 311‐12 (2d Cir. 2005). Issue

preclusion, however, applies only if ʺ(1) the identical issue necessarily was decided in

the prior action and is decisive of the present action, and (2) the party to be precluded

from relitigating the issue had a full and fair opportunity to litigate the issue in the prior

action.ʺ Evans v. Ottimo,

(2d Cir. 2006) (citing Kaufman v. Eli Lilly &

Co.,

, 455‐56 (1985)).

The School District, as the party asserting issue preclusion, ʺbears the

burden of showing with clarity and certainty what was determined by the prior

judgment,ʺ and we will give the Appellate Division decision issue preclusive effect

ʺonly if it is quite clear that this requirement has been met.ʺ Postlewaite,

5 (emphasis in original) (internal quotation marks omitted). When the School District

informed the district court of the Appellate Divisionʹs November 9, 2016 decision

(Razzano having failed to comply with a court order requiring her to do so), it did not

specifically move for dismissal on grounds of collateral estoppel and provided no

record from the state administrative or court proceeding. The only record provided

was a copy of the Appellate Division decision.3 In its brief to this Court, the School

District concedes that ʺwithout the [§] 3020‐a decision or transcript, we cannot

determine the nature and/or scope of [Razzanoʹs] arguments in her defense, and cannot

conclude with certainty the extent of the identity of the issues which would require

preclusion.ʺ Appelleeʹs Br. at 13. In these circumstances, a collateral estoppel

dismissal was premature.

As for res judicata, New York uses a ʺtransactional approachʺ such that

ʺonce a claim is brought to a final conclusion, all other claims arising out of the same

transaction or series of transaction are barred.ʺ McKithen v. Brown,

(2d

Cir. 2007) (quoting OʹBrien v. City of Syracuse,

(1981)). This bar

3 In rejecting Razzanoʹs termination challenge, the Appellate Division held that the hearing officer ʺproperly rejected [Razzanoʹs] defense that the disciplinary proceedings were retaliatory in natureʺ and that the ʺevidence of specific incidents of inappropriate, unprofessional, or insubordinate conduct . . . demonstrate[d] a separate and independent basis for the action takenʺ such that ʺa defense under Civil Service Law § 75‐b cannot be sustained.ʺ Razzano v. Remsenburg‐Speonk Union Free Sch. Dist.,

(2d Depʹt 2016).

6 applies ʺwithout regard to whether [the subsequent claim] is based upon different legal

theories or seeks different or additional relief.ʺ Davidson v. Capuano,

(2d Cir. 1986). Res judicata, however, ʺwill not be applied if the initial forum did not

have the power to award the full measure of relief sought in the later litigation.ʺ

Here, Razzanoʹs state court ʺclaimʺ was her C.P.L.R. § 7511 petition

challenging the § 3020‐a hearing officerʹs decision. Razzanoʹs defense to the

disciplinary charges was that they were retaliatory in violation of Civil Service Law

§ 75‐B(2)(a), see Razzano,

, but Razzano did not assert the claims she

raised in her district court complaint (under the ADA, § 1983, and the New York State

Human Rights Law) for which she sought monetary damages, equitable relief, and

attorneyʹs fees and costs. It appears, therefore, that neither the administrative hearing

officer nor the Appellate Division had the power to rule on the discrimination claims, as

Razzano had not raised them in the disciplinary proceeding or in her petition

challenging the decision. See Bottini v. Sadore Mgmt. Corp.,

(2d Cir.

1985) (holding that a court reviewing a C.P.L.R. § 75 motion has a ʺnarrow scope of

reviewʺ such that a plaintiffʹs religious discrimination claim could not be fully reviewed

on the merits). Accordingly, dismissal on res judicata grounds was unwarranted.

7 We have considered Razzanoʹs remaining arguments and find them to

be without merit. Accordingly, we VACATE the judgment of the district court and

REMAND for further proceedings consistent with this order.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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