Sexual Orientation Discrimination & Retaliation Claims Not Barred By Adverse 3020-a Hearing Determination

In Giove v. City of New York, 15-cv-2998, 2018 WL 736008 (E.D.N.Y. Feb. 5, 2018), the court addressed whether sexual orientation discrimination and retaliation claims brought by a teacher were barred by collateral estoppel due to a prior finding at a hearing pursuant to NY Education Law § 3020-a.

Under the facts of this case, the court held that they were not. From the decision:

Here, as in Leon [v. Dep’t of Educ., 16 F. Supp. 3d 184 (E.D.N.Y. 2014), rev’d in part, 612 Fed.Appx. 632 (2d Cir. 2015)], there is no indication in Hearing Officer McKeever’s Opinion & Award that he actually decided whether Plaintiff was subjected to a hostile work environment or that the disciplinary charges brought against him were motivated, even in part, by Defendants’ retaliatory intent. Defendants rely on one sentence in the Opinion & Award as proof that Hearing Officer McKeever necessarily decided the issues of discrimination and retaliation: “I decline to make a finding of disparate treatment.” (Opinion and Award, at 30.) Yet a full reading of the Opinion and Award reveals that this sentence is limited to a single fact regarding Defendant Deangelo disciplining Plaintiff and another employee after they argued in the main office. Furthermore, Hearing Officer McKeever declining to find disparate treatment is not the same as making a finding that there was no disparate treatment. Indeed, in the entire thirty-one page decision, Hearing Officer McKeever does no more than refer to Plaintiff’s defenses of discrimination and retaliation, and offers no basis for rejecting them. (Opinion & Award, at 23.) (“[Jeff Giove] submits that the charges should be dismissed because they were proffered against him in retaliation for complaining … about Principal DeAngelo and Susanne Rolnick, and for his decision to file lawsuits against the Department [of Education] naming Susanne Rolnick and Principal DeAngelo as defendants.”) Accordingly, because there is no indication that Hearing Officer McKeever “necessarily decided” Plaintiff’s claims of discrimination and retaliation as part of Plaintiff’s § 3020-a hearing, Defendants are not entitled to collaterally estop Plaintiff from pursuing those claims in the present litigation.

The court therefore denied defendants’ motion in limine to amend their answer to assert a collateral estoppel defense.

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