Stinson v. Tucker

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MARCUS STINSON,

Plaintiff,

-against- 1:20-CV-8701 (LLS)

SONIA S. PEARSON; ESTHER SANDY

ORDER OF DISMISSAL

TUCKER; CUNY (“CITY UNIVERSITY OF

NEW YORK”),

Defendants.

LOUIS L. STANTON, United States District Judge:

Plaintiff Marcus Stinson, who appears pro se, asserts claims of discrimination and

retaliation under Titles VI and VII of the Civil Rights Act of 1964 (“Title VI” & “Title VII”), the

Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§ 1981, and the New York City Human Rights Law. He seeks damages and injunctive relief. He

sues: (1) his former employer, the City University of New York (“CUNY”); (2) Sonia S.

Pearson, the Director of CUNY’s Human Resources Department; and (3) Esther Sandy Tucker,

the President of his union and a CUNY employee.1 For the reasons discussed below, the Court

dismisses this action.

STANDARD OF REVIEW

The Court has the authority to dismiss a complaint, even when the plaintiff has paid the

relevant fees, if the Court determines that the action is frivolous, see Fitzgerald v. First E.

Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), or that the Court lacks subject-

matter jurisdiction, see Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

1 Plaintiff has paid the relevant fees to bring this action. He sues the individual defendants

in their individual and official capacities.

583 (1999). The Court can also dismiss a complaint, or portion thereof, for failure to state a

claim on which relief may be granted after giving the plaintiff notice and an opportunity to be

heard. Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). The Court is obliged,

however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009),

and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted).

BACKGROUND

Plaintiff was employed by CUNY until August 18, 2017, when he was fired from his

position as an Office Assistant in CUNY’s Office of Facilities, Planning, Construction and

Management. Before and after he was fired, Plaintiff filed complaints in this court and in the

United States District Court for the Eastern District of New York asserting claims of

employment discrimination and retaliation. The present action is the most recent of these. The

Court will recount Plaintiff’s other relevant actions before describing his allegations in the

present one.

A. Stinson v. City Univ. of New York, 1:17-CV-3949 (KBF)

The first action that Plaintiff filed in this court relating to his CUNY employment was

Stinson v. City Univ. of New York, 1:17-CV-3949 (KBF) (“Stinson I”). Plaintiff was represented

by counsel in that action. He filed the original complaint on May 24, 2017, an amended

complaint on September 11, 2017, and a second amended complaint on February 2, 2018.

Plaintiff alleged that the defendants discriminated and retaliated against him beginning in

2015, and that this conduct culminated in Plaintiff’s firing in 2017. He asserted claims under

Title VII; the ADA; the Family and Medical Leave Act of 1993 (“FMLA”); 42 U.S.C. §§ 1981,

1983, and 1985; and the New York State and City Human Rights Laws (“NYSHRL” and

“NYCHRL”). He sued: (1) CUNY; (2) Judith Bergtraum, CUNY’s Vice Chancellor of its Office

of Facilities, Planning, Construction and Management (“FPCM”); (3) the Research Foundation

of the City University of New York (“RFCUNY”), (4) Vincent Green, an RFCUNY employee, its

Director of Vendor Integrity and Investigations at CUNY, and Plaintiff’s former supervisor, and

(5) John Antonelli, an RFCUNY employee and its Executive Director of Administration for

FPCM.

In an Opinion & Order dated June 6, 2018, the court granted the defendants’ motions to

dismiss. ECF 1:17-CV-3949, 85. The court dismissed many of Plaintiff’s claims against CUNY,

and against Bergtraum in her official capacity, under the doctrine of Eleventh Amendment

sovereign immunity. Id. at 22-23. The court dismissed the remainder of Plaintiff’s claims for

failure to state a claim on which relief may be granted. Id. at 24-30. Plaintiff did not appeal.

B. Stinson v. City Univ. of New York, 1:18-CV-5963 (RA)

Twenty-two days after the court dismissed Stinson I, Plaintiff filed another action in this

court arising from his CUNY employment, but this time without the assistance of counsel.

Stinson v. City Univ. of New York, 1:18-CV-5963 (RA) (“Stinson II”). In Stinson II, Plaintiff

asserted claims that he had previously asserted in Stinson I, including claims of discrimination

and retaliation and claims under the FMLA. But he also asserted claims not previously asserted

in Stinson I, that is, claims arising from events that allegedly occurred after he had been fired.

In an order dated July 30, 2019, the court determined that Plaintiff was barred from

asserting his claims under the FMLA under the doctrine of issue preclusion but granted Plaintiff

leave to amend as to other claims. ECF 1:18-CV-5963, 10, at 4-6. Plaintiff then filed an amended

complaint. In a Memorandum Opinion & Order dated May 4, 2020, the court granted Plaintiff’s

motion under Rule 41(a)(2) of the Federal Rules of Civil Procedure and dismissed Stinson II

without prejudice. ECF 1:18-CV-5963, 34.2

C. Stinson v. City Univ. of New York, 1:19-CV-4191 (LLS)

On May 8, 2019, Plaintiff filed another pro se action in this court arising from his CUNY

employment. Stinson v. City Univ. of New York, 1:19-CV-4191 (LLS) (“Stinson III”). He

asserted claims under the FMLA; 42 U.S.C. §§ 1981, 1983, 1985, and 1986; and the NYSHRL

and NYCHRL against CUNY and Bergtraum. By order dated July 19, 2019, the Court dismissed

Stinson III on the Court’s own motion under the doctrines of claim prelusion, issue preclusion,

and Eleventh Amendment immunity. ECF 1:19-CV-4191, 12. The Court noted that Plaintiff’s

claims in Stinson III were “based on the same events underlying his complaint in Stinson I, that

is, events that occurred up until his firing on August 18, 2017.” ECF 1:19-CV-4191, 12, at 3. The

Court: (1) dismissed Plaintiff’s claims arising from those events underlying the claims in

Stinson I under the doctrine of claim preclusion, (2) dismissed Plaintiff’s claims under the

FMLA, NYSHRL, and NYCHRL under the doctrines of issue preclusion and Eleventh

Amendment immunity, and (3) warned Plaintiff “that further litigation of his employment

discrimination claims against CUNY and its employees based on events occurring before his

firing or other nonmeritorious matters in this Court will result in an order barring him from filing

any new actions without prior permission.” Id. at 3-7. Plaintiff did not appeal.

2 In response to Plaintiff’s March 3, 2021 request, ECF 1:18-CV-5963, 37, on March 5,

2021, the court granted Plaintiff until April 5, 2021, to file an amended complaint in Stinson II,

1:18-CV-5963, 38. But on March 9, 2021, in response to CUNY’s request to reconsider that

decision, ECF 1:18-CV-5963, 39, the court rescinded leave to amend, and directed Plaintiff to

explain, by April 5, 2021, why he should be permitted to proceed with Stinson II. ECF 1:18-CV-

5963, 41.

D. Stinson v. G-Square Consulting Servs., LLC, 1:19-CV-0013 (E.D.N.Y.)

Ten days after this Court dismissed Stinson III, Plaintiff filed yet another pro se action,

this time in the United States District Court for the Eastern District of New York, against

Vincent Green’s business, G-Square Consulting Services, LLC (“G-Square”), and CUNY. That

action, Stinson v. G-Square Consulting Servs., LLC, 1:19-CV-0013 (E.D.N.Y.) (“Stinson IV”), is

pending. Plaintiff asserts claims under federal and state law against G-Square and CUNY arising

from Green’s and CUNY’s actions during Plaintiff’s post-termination arbitration and

unemployment-insurance proceedings, and from CUNY’s barring Plaintiff from his workplace

and from attending classes. See Stinson IV, 1:19-CV-0013, 25, 69 (E.D.N.Y.) (amended

complaints).3

E. The present action

On October 15, 2020, Plaintiff filed the complaint commencing the present action. He

asserts claims under Titles VI and VII, the Rehabilitation Act, the ADA, 42 U.S.C. § 1981, and

the NYCHRL against: CUNY; Sonia S. Pearson, the Director CUNY’s Human Resources

Department; and Esther Sandy Tucker, the President of Plaintiff’s union and a CUNY employee.

He sues the individual defendants in their official and individual capacities. Plaintiff’s claims

arise from: (1) the events leading up to his discharge from CUNY, and, (2) the events that

allegedly took place after his 2017 firing, including his post-termination arbitration and

3 Plaintiff has filed two amended complaints in Stinson IV, and the docket for that action

shows that the court is considering whether to grant Plaintiff leave to file a third amended

complaint. Thus, it is unclear which pleading is the operative pleading for that pending action.

unemployment-insurance proceedings, and from CUNY’s barring him from his workplace and

from attending classes.4

DISCUSSION

In the present action, Plaintiff asserts some claims and raises some issues that either were

or could have been adjudicated in his previous actions. Those claims and issues all arise from

events concerning his employment, and the termination of his employment, at CUNY. Under the

doctrines of claim and issue preclusion, Plaintiff may not relitigate those claims and issues.

Plaintiff’s remaining claims arise out of events that took place after his 2017 firing.

Plaintiff is aware of the doctrine of claim preclusion because in Stinson III, the Court held

that “the doctrine of claim preclusion bars all [of Plaintiff’s] claims . . . that are based on the

same events and transactions that were at issue in Stinson I,” that is, “events that occurred up

until his firing” in 2017. ECF 1:19-CV-4191, 12, at 3, 4-5. The doctrine of claim preclusion, also

known as res judicata, applies when “(i) an . . . action resulted in an adjudication on the merits;

(ii) that . . . action involved the same counterparty [as the present action] or those in privity with

them; and (iii) the claim sought to be precluded was raised, or could have been raised, in th[e]

[already adjudicated] action.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 898 F.

3d 232, 237 (2d Cir. 2018), rev’d on other grounds, 140 S. Ct. 1589 (2020). “A party cannot

avoid the preclusive effect of res judicata by asserting a new theory or a different remedy.”

Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation

marks and citation omitted).

4On March 8, 2021, Plaintiff filed a letter in this action in which he requested to withdraw

his complaint, and for leave to file an amended complaint in which to assert claims against

Tucker. (ECF 3.) On that same date, the Court denied Plaintiff’s request. (ECF 4.)

Plaintiff is also aware of the doctrine of issue preclusion. In Stinson III, the Court held

that issue preclusion barred him from relitigating his claims against CUNY and against a CUNY

employee in her official capacity because the court in Stinson I had already held that those

defendants were immune from suit under the Eleventh Amendment. ECF 1:19-CV-4191, 12, at

5-6. The doctrine of issue preclusion, also known as collateral estoppel, “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.” See Tracy v. Freshwater, 623 F.3d 90, 99 (2d Cir.

2010) (internal quotation marks and citations omitted). This doctrine “‘bars successive litigation

of an issue of fact or law actually litigated and resolved in a valid court determination essential to

the prior judgment, even if the issue recurs in the context of a different claim.’” Marcel Fashions

Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (citation omitted,

emphasis in original).

Furthermore, Plaintiff is aware of the doctrine of Eleventh Amendment immunity

because in Stinson I, and again in Stinson III, the court dismissed his claims under the ADA, the

FMLA, the NYSHRL, and the NYCHRL against CUNY and against a CUNY employee in her

official capacity under that doctrine, ECF 1:17-CV-3949, 85, at 11-12; ECF 1:19-CV-4191, 12,

at 7. Eleventh Amendment sovereign immunity shields States from claims for damages,

injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74

(1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). “[T]he

immunity recognized by the Eleventh Amendment extends beyond the states themselves to state

agents and state instrumentalities that are, effectively, arms of a state.” Gollomp v. Spitzer, 568

F.3d 355, 366 (2d Cir. 2009) (internal quotation marks and citation omitted). This immunity

applies to a State and to its agents and instrumentalities unless the State has waived its immunity

from suit or unless Congress has abrogated that immunity. Id.

A. Claims arising from events leading up to and including Plaintiff’s termination

Here, Plaintiff again asserts employment-discrimination and retaliation claims that he

previously raised (or could have raised) in Stinson I against CUNY, and against other CUNY

officials (Pearson and Tucker), that arise from his employment, and the termination of his

employment, at CUNY. The Court therefore dismisses those claims for failure to state a claim on

which relief may be granted under the doctrine of claim preclusion.5 See Cieszkowska v. Gray

Line N.Y., 295 F.3d 204, 205-06 (2d Cir. 2002) (holding that the plaintiff’s in forma pauperis

action, which was dismissed as barred by claim preclusion (res judicata), was properly dismissed

for failure to state a claim); see also Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov’t of the Lao

People’s Democratic Republic, 864 F.3d 172, 191 (2d Cir. 2017) (“[C]ourts may consider certain

affirmative defenses, such as [issue preclusion] and claim preclusion, sua sponte.”); see

generally Jones v. Bock, 549 U.S. 199, 215 (2007) (“Whether a particular ground for opposing a

claim may be the basis for dismissal for failure to state a claim depends on whether the

5 Plaintiff asserts that:

[t]he claims contained in this complaint could not have been raised in [Stinson I].

Since [Plaintiff’s] termination, CUNY has alleged a multitude of new facts and

narratives about [his] employment in 2018 and 2019. There have also been new

events, exchanges, evidence and transactions that occurred after the date of [his]

termination that could not have been litigated in [Stinson I].

(ECF 1, at 28.) The doctrine of claim preclusion “applies even where new claims are based on

newly discovered evidence, unless ‘the evidence was either fraudulently concealed or it could

not have been discovered with due diligence.’” L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc.,

198 F.3d 85, 88 (2d Cir. 1999) (quoting Saud v. Bank of New York, 929 F.2d 916, 920 (2d Cir.

1991)). But Plaintiff alleges no facts showing that new evidence was either fraudulently

concealed or could not have been discovered with due diligence.

allegations in the complaint suffice to establish that ground, not on the nature of the ground in

the abstract.”).

Plaintiff also sues CUNY and CUNY employees in their official capacities. As the court

held in Stinson I and Stinson III, the Eleventh Amendment shields those defendants from suit

under the NYCHRL. ECF 1:17-CV-3949, 85, at 11-12; ECF 1:19-CV-4191, 12, at 7. Plaintiff

may not relitigate this issue. The Court therefore dismisses these claims under the doctrine of

issue preclusion,6 see Thai-Lao Lignite (Thailand) Co., Ltd., 864 F.3d at 191, and under the

doctrine of Eleventh Amendment immunity.7

B. Duplicative claims

Plaintiff asserts claims in the present action against CUNY that he has asserted in a

another previously filed but pending action – Stinson IV, 1:19-CV-0013 (E.D.N.Y.). These

claims arise from CUNY’s alleged actions in proceedings that took place after Plaintiff was

terminated from CUNY employment. The Court therefore dismisses these claims against CUNY

6 Any new evidence that Plaintiff may have does not allow him to relitigate the issue of

CUNY’s and a CUNY employee’s official-capacity immunity from suit under the NYCHRL.

This is because new evidence does not negate their immunity from suit under the Eleventh

Amendment. See Mir v. Zucker, No. 1:19-CV-6374, 2020 WL 2086215, at *5 (S.D.N.Y. Apr. 28,

2020) (holding, in the issue-preclusion context, that “this new information has nothing to do with

the New York officials’ immunity from suit. . . . [T]he new information does not allow Plaintiff

to relitigate the issue of the New York officials’ immunity from suit.”), appeal pending, No. 20-

1659 (2d Cir.); cf. Wilder v. Thomas, 854 F.2d 605, 620 (2d Cir. 1988) (new evidence did not

disturb the application of issue preclusion (collateral estoppel) under New York law because,

among other reasons, “[t]here is no new evidence germane to the issue”).

7 Even if the preclusion doctrines do not bar Plaintiff from asserting claims against the

individual defendants, the statutes on which some of the present claims are based do not allow

for individual liability. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (Title VII);

Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (ADA’s anti-retaliation provision);

Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Insofar as [the

plaintiff] is suing the individual defendants in their individual capacities, . . . § 504 of the

Rehabilitation Act does not provide for individual capacity suits against state officials.”); e.g.,

D.S. by and through C.S. v. Rochester City Sch. Dist., No. 6:19-CV-6528, 2020 WL 7028523, at

*9 (W.D.N.Y. Nov. 30, 2020) (Title VI) (collecting cases).

as duplicative and without prejudice to his claims in Stinson IV, 1:19-CV-0013 (E.D.N.Y.). See

Sacerdote v. Cammack Larhette Advisors, LLC, 939 F.3d 498, 505 (2d Cir. 2019) (“The vital

difference between the rule against duplicative litigation and the doctrine of claim preclusion . . .

is that the former can only be raised to bar one of two suits that are both still pending; the latter is

generally raised, after a prior suit is resolved on the merits, to preclude a party (or its privy) from

relitigating claims in a subsequent suit that were or could have been raised in the prior action.)

(footnotes omitted); cf. Curtis v. Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2000) (For a

duplicative second action, “simple dismissal of the second suit is [a] common disposition

because plaintiffs have no right to maintain two actions on the same subject in the same court,

against the same defendant at the same time.”).

C. Federal labor-law claims against Tucker

Plaintiff appears to assert claims under federal labor law against Tucker, the President of

his union, that she breached her duty of fair representation; the Court construes these claims as

brought against Plaintiff’s union, the proper defendant for such a claim. See, e.g., Gagliardi v. E.

Hartford Hous. Auth., No. 3:02-CV-0478, 2005 WL 2175136, at *4 (D. Conn Sept. 7, 2005);

LaFauci v. St. John’s Riverside Hosp., 381 F. Supp. 2d 329, 333 (S.D.N.Y. 2005). But because

Plaintiff is a former public employee, and because the applicable federal labor law does not

apply to public employees, the Court dismisses these claims for lack of subject-matter

jurisdiction. See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (affirming

district court’s dismissal, for lack of subject-matter jurisdiction, of public employee’s claims of

breach of the duty of fair representation against her union because the applicable statute does not

cover public employees); Smith v. United Fed’n of Teachers, 162 F.3d 1148 (2d Cir. 1998)

(summary order) (“Because there is no federal jurisdiction over the [public] employer, there is no

jurisdiction over the companion claim [against the union] of breach of the duty of fair

representation.”).8

D. Remaining state-law claims

A district court may decline to exercise supplemental jurisdiction over state-law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and

only state-law claims remain, the federal court should decline the exercise of jurisdiction. . . .”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). Having dismissed

all the federal-law claims over which the Court has original jurisdiction, the Court declines to

exercise its supplemental jurisdiction over any state-law claims that the Court has not addressed

above.9 See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

8 Even if Plaintiff were not a former public employee, he could not proceed with such a

claim against Tucker because there is no individual liability for such a claim. See Morris v. Local

819, Int’l Bhd. of Teamsters, 169 F.3d 782, 784 (2d Cir. 1999).

9 Plaintiff does not invoke the Court’s diversity jurisdiction to consider any state-law

claims. Thus, the Court construes Plaintiff’s complaint as asserting state-law claims under the

Court’s supplemental jurisdiction. Plaintiff’s address of record is a post-office box in

Englewood, New Jersey, and he alleges that Pearson resides in New York, and that CUNY’s

central office is in New York. (ECF 1, at 1.) But he does not assert the state citizenships of the

remaining parties (including himself), show that the parties are diverse, or allege any facts

showing that his state-law claims satisfy the jurisdictional amount for a diversity action – an

amount in excess of the sum or value of $75,000. See 28 U.S.C. § 1332(a)(1). Thus, even if the

Court were to construe the complaint as invoking diversity jurisdiction, the Court would lack

such jurisdiction to consider Plaintiff’s state-law claims.

CONCLUSION

The Court directs Clerk of Court to mail a copy of this order to Plaintiff and note service

on the docket.

The Court dismisses this action for the reasons set forth in this order.

SO ORDERED.

Dated: March 10, 2021

New York, New York

Louis L. Stanton

U.S.D.J.

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