# Stinson v. Tucker

> District Court, S.D. New York · March 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10330480

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10330480

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10330480. Public record. Not legal advice.