White

UNITED STATES DISTRICT COURT U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------X LONG ISLAND OFFICE

NATALIE WHITE, MEMORANDUM

AND ORDER

Plaintiff,

- against - Civil Action

No. 22-5628 (GRB)(ARL)

CITY OF LONG BEACH, COMPTROLLER INNA

RESNICK (in her official and personal capacity), and

CITY MANAGER DONNA GRAYDEN (in her

official and personal capacity),

Defendants.

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GARY R. BROWN, United States District Judge:

Presently before the Court is a motion for judgment on the pleadings pursuant to Rule 12

of the Federal Rules of Civil Procedure filed by defendants City of Long Beach, Inna Resnick

and Donna Grayden (collectively, “defendants”). Docket Entry (“DE”) 45. Defendants argue

that plaintiff Natalie White’s (“plaintiff”) sole remaining claim – an alleged equal protection

violation brought under 42 U.S.C. § 1983 – is barred by the doctrines of res judicata and

collateral estoppel because the New York State Division of Human Rights (“NYSDHR”)

previously determined that no probable cause existed to believe that defendants acted with any

discriminatory animus. For the reasons stated herein, defendants’ motion is GRANTED.

Factual Background

Plaintiff, an African American woman, alleges that defendants discriminated against her

based on her race when they denied her a promotion – instead promoting a less-qualified white

woman – and required her to work in-person during the COVID-19 pandemic while her white

colleagues were permitted to work from home. See DE 27 ¶¶ 16, 18-25, 29. On April 20, 2020,

after plaintiff lodged complaints about the allegedly discriminatory treatment, the City of Long

Beach informed plaintiff that she would be terminated on May 21, 2020. Id. ¶ 43.

On September 7, 2021, plaintiff, represented by the law offices of Frederick K.

Brewington, filed a complaint with the NYSDHR against defendants alleging race discrimination

in violation of the New York State Human Rights Law. Id. ¶ 10; DE 45-2. On October 15,

2021, defendants filed their Answer and Position Statement accompanied by affidavits from

plaintiff's union president, John Mooney, City Comptroller Inna Resnick and Robin Lynch,

Secretary to the Civil Service Commission. See DE 45-3; 45-4; 45-5; 45-6; and 45-7. Plaintiff’s

counsel then filed a 10-page rebuttal brief, DE 45-8, responding to the affidavits and defendants’

arguments. See id. Plaintiff also provided documentary evidence, including an email from

Resnick and text messages from Mooney, that purportedly supported her claims. See id. In one

text message, Mooney purportedly characterized defendants Grayden and Resnick as “racist

lying shitbags.” Id. at 16.

On January 27, 2022, plaintiff’s counsel emailed the NYSDHR investigator seeking leave

to supplement her papers with witness affidavits, which was granted. DE 45-10 and 45-11. On

February 17, 2022, the investigator followed up with plaintiff’s counsel as to whether the prior

referenced affidavits would be submitted, but on February 22, 2022, plaintiff’s counsel informed

the investigator that they would not be submitting additional evidence. DE 45-12 and 45-13.

On March 17, 2022, the investigator interviewed plaintiff – who was joined by her

counsel – via telephone. DE 45-16. On April 5, 2022, following additional investigation, the

NYSDHR Regional Director issued a Determination and Order that “there is NO PROBABLE

CAUSE to believe that the respondents have engaged in or are engaging in the unlawful

discriminatory practice complained of.” DE 45-20 (emphasis in original). The Determination

and Order also advised plaintiff of her appellate rights, but she did not avail herself of that

process. Id.

Plaintiff commenced the instant action on September 20, 2022, alleging several causes of

action sounding in race, gender and disability discrimination as well as retaliation. See DE 1.

After a lengthy procedural history, plaintiff filed the operative Third Amended Complaint on

April 11, 2024. DE 27. On July 8, 2024, following oral argument on defendants’ motion to

dismiss the Third Amended Complaint, the Court dismissed all of plaintiff’s claims except her

third cause of action, which alleges a violation of equal protection under 42 U.S.C. § 1983 based

on racial discrimination. Defendants then filed their Answer to the Third Amended Complaint

on July 18, 2024, asserting collateral estoppel and res judicata as their fourth affirmative defense.

DE 33 ¶ 99.

Defendants now move for judgment on the pleadings, arguing that the NYSDHR’s “no

probable cause” determination precludes plaintiff’s third cause of action. This opinion follows.

Discussion

I. Standard of Review

“A court may dismiss a claim on res judicata or collateral estoppel grounds on a motion

to dismiss, a motion for judgment on the pleadings, or a motion for summary judgment.”

Swiatkowski v. Citibank, 745 F. Supp. 2d 150, 168 (S.D.N.Y. Oct. 7, 2010). “In deciding

a Rule 12(c) motion, we employ[ ] the same . . . standard applicable to dismissals pursuant to

[Rule] 12(b)(6). Thus, we will accept all factual allegations in the [C]omplaint as true and draw

all reasonable inferences in [Plaintiff's] favor.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d

419 (2d Cir. 2011).

Plaintiff asserts, without relevant authority, that because defendants submitted 20 exhibits

from the NYSDHR record along with their motion, defendants’ motion must be converted to one

for summary judgment, and thus plaintiff must be afforded the right to conduct discovery. Not

so.

“[C]ourts may take judicial notice of the records of state administrative procedures, as

these are public records, without converting a motion to dismiss to one for summary judgment.”

Certified Collision Experts, Inc. v. Town of Babylon, No. 23-CV-08524 (JMA) (LGD), 2024 WL

4904161 at *4 (E.D.N.Y. Nov. 27, 2024), appeal dismissed sub nom. Certified Collision Experts,

Inc. v. Town of Babylon, NY, No. 25-202, 2025 WL 4090982 (2d Cir. Aug. 15, 2025). The

exhibits appended to defendants’ motion are public records, accessed by defendants through a

FOIL request. Accordingly, the Court will take judicial notice of the NYSDHR record and

decide defendants’ motion without converting it to a motion for summary judgment.

II. Collateral Estoppel

The Supreme Court has held that “when a state agency acting in a judicial capacity

resolves disputed issues of fact properly before it which the parties have had an adequate

opportunity to litigate, federal courts must give the agency's factfinding the same preclusive

effect to which it would be entitled in the State's courts.” University of Tennessee v. Elliott, 478

U.S. 788, 799 (1986) (internal quotations and citation omitted). Thus, “it is beyond dispute that

the NYSDHR has the authority to adjudicate disputes regarding employment discrimination and

come to binding determinations with respect to those disputes.” Johnson v. Cnty. of Nassau, 411

F. Supp. 2d 171, 180 (E.D.N.Y. 2006).

The Second Circuit, in Kosakow v. New Rochelle Radiology Assocs., P.C., set forth the

two elements of collateral estoppel that must be satisfied before a NYSDHR determination is

given preclusive effect. First, “there must be an ‘identity of issue which has necessarily been

decided in the prior action and is decisive of the present action,’” and second, “the party to be

estopped must have had a ‘full and fair opportunity to contest the decision now said to be

controlling.’” Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir.

2001) (quoting Schwartz v. Public Adm'r, 24 N.Y.2d 65, 71 (1969)). “The burden of proving

identity of the issue rests on the proponent of collateral estoppel, while the opponent bears the

burden of proving that he or she did not have a full and fair opportunity to litigate the issue.” Id.

It is undisputed that the identity of issue prong of the analysis is satisfied, so the only remaining

question is whether plaintiff has demonstrated that she did not have a full and fair opportunity to

litigate before the NYSDHR. See DE 45-23 at 18 (plaintiff admitting in her opposition papers

that she “does not contend the unlawful employment discrimination in the NYSDHR charges are

any different than the issues stated in the Third Amended Complaint.”).

In determining whether a party had a full and fair opportunity to litigate the issue, the

Second Circuit has instructed district courts to consider several factors, including “the size of the

claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the

competence and experience of counsel, the availability of new evidence, indications of a

compromise verdict, differences in the applicable law and foreseeability of future litigation.”

Kosakow, 274 F.3d at 734 (internal quotations and citation omitted).

To satisfy her burden, plaintiff essentially argues that she could not possibly have had a

full and fair opportunity to litigate because she was not afforded a hearing at which her counsel

could have fully developed a factual record. See id. at 735 (noting that “it cannot be ignored that

the [NYS]DHR makes factual conclusions based on a record that is far less developed than that

before a federal court.”). Plaintiff asserts that had her counsel confronted witnesses with the

“fire of cross-examination,” plaintiff would have fared better at the NYSDHR. DE 45-23 at 20.

However, “the absence of a hearing will not render a NYSDHR determination inadequate

where the plaintiff was otherwise given a full opportunity to present [her] case and rebut

evidence submitted by respondent[s].” Johnson, 411 F. Supp. 2d at 182. In fact, “the critical

and often determinative question” in a collateral estoppel analysis is whether the plaintiff was

advised by counsel before filing a complaint with the NYSDHR. Skates v. Inc. Vill. of Freeport,

No. 15-CV-1136 (SJF) (AYS), 2016 WL 1459659 (E.D.N.Y. Jan. 28, 2016), report and

recommendation adopted, 2016 WL 1452391 (E.D.N.Y. Apr. 12, 2016). The Second Circuit’s

decision in Kosakow reinforces this principle.

The Court of Appeals in Kosakow emphasized that the plaintiff’s pro se status hindered

her from fully litigating her claim. The Circuit found that the plaintiff was not collaterally

estopped from litigating her claims in federal court following a “no probable cause”

determination at the NYSDHR largely because “she could not have been expected or able to

frame her evidence within the context of the specific legal issues[,] [n]or would she necessarily

have known what facts were most relevant or persuasive in proving her case.” Kosakow, 274

F.3d at 736. Furthermore, the panel pointed out that because the plaintiff was acting pro se, “her

understanding of the implications of her decision [to litigate at the NYSDHR] should not be

cavalierly assumed.” Id. at 735.

Much to the contrary, plaintiff here was represented by the law offices of Frederick K.

Brewington before the NYSDHR, the same firm that represents her in this action. Plaintiff’s

counsel (1) filed a complaint with the NYSDHR; (2) filed a 10-page, single-spaced rebuttal brief;

(3) was permitted, but declined, to submit supplemental affidavits; and (4) accompanied plaintiff

while she was interviewed by the NYSDHR investigator. See DE 45-8, DE 45-10, DE 45-11,

DE 45-12, DE 45-13 and DE 45-16. Review of these materials demonstrates that counsel’s

efforts at the NYSDHR were substantial and reveals that plaintiff’s counsel advocated steadfastly

for her – albeit through written submissions only. Plaintiff, with the assistance of experienced

counsel, had more than ample opportunity to fully present her case. Indeed, plaintiff’s decision

to forego the submission of affidavits to the NYSDHR, even though afforded the opportunity,

significantly undercuts her position. Thus, as Judge Hurley found in Johnson, “although the

NYSDHR investigation may not have afforded [p]laintiff the full panoply of procedures that are

available to litigants in a civil action, the New York Court of Appeals has made clear that this

fact alone is insufficient to make collateral estoppel inapplicable.” 411 F. Supp. 2d at 183 (citing

Jeffreys v. Griffin, 1 N.Y.3d 34, 42 (2003)).

Plaintiff attempts to distinguish Johnson by arguing that the plaintiff in that case did not

explain how a hearing would have changed the determination of the NYSDHR. Plaintiff posits

that had her counsel been permitted to confront John Mooney – plaintiff’s union president – with

text messages wherein he wrote that defendants were “racist lying shitbags,” the outcome of the

NYSDHR proceeding would have been different. DE 45-8 at 16. But this is not newly

discovered evidence. Plaintiff provided the text messages to the NYSDHR, and provided

argument concerning their significance, which was available for the NYSDHR to consider. DE

45-8.

Plaintiff’s emphasis on the fact that the NYSDHR determination was unreviewed by a

state court is misplaced because, “under appropriate circumstances, unreviewed state

administrative proceedings may be given preclusive effect in federal court with regard to the

Civil Rights statutes.” Johnson, 411 F. Supp. at 180 (citing Univ. of Tennessee v. Elliott, 478

U.S. 788, 797-98 (1986)); see also Robbins v. Candy Digital Inc., No. 23-CV-10619 (LJL), 2025

WL 2391039 at *9 (S.D.N.Y. Aug. 18, 2025) (“even an unreviewed [NYS]DHR determination

of no probable cause is to be given preclusive effect in a follow-on federal case as long as

principles of issue preclusion or collateral estoppel would apply under the relevant state law.”)

(citing Kosakow, 274 F.3d at 730). Here, where plaintiff’s counsel provided her exemplary

representation before the NYSDHR, plaintiff cannot have her second bite at the apple in a federal

forum.

Other factors weigh in favor of preclusion as well. In email correspondence with

plaintiff’s counsel, the NYSDHR investigator proposed an administrative convenience dismissal

to permit plaintiff to “go to court based on her allegations.” DE 45-21. Having foregone that

procedural device, plaintiff plainly elected the NYSDHR as the forum in which to litigate her

claim. There is also no indication that the NYSDHR’s determination was a “compromise

verdict.”

Accordingly, because plaintiff has not satisfied her burden of demonstrating that she did

not have a full and fair opportunity to litigate before the NYSDHR, her sole remaining claim is

precluded by collateral estoppel.

III. Res Judicata

Even if plaintiff’s sole remaining claim was not precluded by collateral estoppel, “[t]he

preclusive effect of res judicata is broader than that of collateral estoppel,” and would similarly

preclude plaintiff’s claim. Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt, P.C., 701 F. Supp.

2d 340, 351 (E.D.N.Y. 2010) (Bianco, J.).

“Res judicata bars re-litigation if (1) the previous action involved an adjudication on the

merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the

claims asserted in the subsequent action were, or could have been, raised in the prior action.”

Soules v. Connecticut, 882 F.3d 52, 55 (2d Cir. 2018) (internal quotations and citation omitted).

“New York courts have adopted a ‘transactional analysis approach’ to res judicata issues,”

meaning that “a claim will be barred by a determination in an earlier action if both causes of

action are grounded on the same gravamen or are part of the same ‘factual grouping,’ even if the

later claim is brought under a different legal theory of recovery.” Chung v. Honor Emergency

Fund of Fire Dep't of City of New York, No. 23-CV-05716 (LDH) (CLP), 2025 WL 964059 at *3

(E.D.N.Y. Mar. 31, 2025) (quoting Kirkland v. City of Peekskill, 828 F.2d 104, 110 (2d Cir.

1987)). “As relevant here, the NYSDHR has the authority to adjudicate and issue binding

determinations regarding employment discrimination disputes,” and “federal courts have

afforded a preclusive effect to the NYSDHR's no probable cause determinations when federal

and state claims arise from the same facts and involve the same parties.” Id. (applying res

judicata to a NYSDHR “no probable cause” determination).

It is undisputed that plaintiff’s claim in the instant action arises from the same “factual

grouping” that formed the basis for plaintiff’s complaint before the NYSDHR. See DE 45-23 at

18. Moreover, the parties in this action are the same as the parties in the action before the

NYSDHR.1 Accordingly, even if plaintiff’s claim was not barred by the narrower collateral

estoppel doctrine, her claim is also barred by res judicata.

1 While defendant Grayden was not named as a defendant in plaintiff’s NYSDHR complaint,

“res judicata applies to a case involving the same parties or their privies.” Chase Manhattan

Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995) (emphasis added). Grayden is sued

in her official and personal capacities as manager of the City of Long Beach – which was named

as a defendant at the NYSDHR – and “[g]overnment officials sued in their official capacities are

generally considered to be in privity with the government entity that they serve.” Smith v. City of

New York, 130 F. Supp. 3d 819, 828 (S.D.N.Y. 2015), aff'd, 664 F. App'x 45 (2d Cir. 2016).

Conclusion

For the reasons set forth above, defendant’s motion for judgment on the pleadings is

GRANTED.

SO ORDERED.

Dated: Central Islip, New York

August 27, 2026

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge