Tuesday, April 3, 2012

In Title VII case, winning the collateral estoppel battle, losing the war

Collateral estoppel is a legal principle that is well known to federal litigators who like to avoid the unhappy results obtained in state administrative proceedings. There are ways around bad administrative rulings when you want to bring a civil rights case. This case shows us one way how.

The case is Broich v. Incorporated Village of Southampton, a summary order decided on February 15. If you handle cases like this, then what happened here will look familiar. Broich was disciplined under Civil Service Law section 75, which entitles him to an impartial hearing. He claimed at the hearing that he was being disciplined in retaliation for making certain statements to the District Attorney's office and the State Commission on Investigation. Under the state whistleblower law, this defense will not work unless the hearing officer finds that Broich was disciplined solely because of his whistleblowing. The hearing officer rejected the whistleblower defense, finding that Broich was disciplined for work-related misconduct.

Undeterred, Broich filed a Title VII action in federal court, claiming that he was retaliated against for filing an EEOC/discrimination charge. The district court threw out the retaliation claim on collateral estoppel grounds, reasoning that "the findings of the hearing officer at Broich's disciplinary hearing conclusively established that the disciplinary charges were brought and acted upon by defendants for non-retaliatory reasons." This might make sense to the uninitiated, but it's wrong, the Court of Appeals (Straub, Livingston and Cabranes) says, for a couple of reasons.

First, Broich did not argue at the disciplinary hearing that the charges were brought in retaliation for his EEOC charge. Second, the state whistleblower law that he did invoke at the hearing requires a finding that the charges were solely brought in retaliation for Broich's speech to the DA and state authorities. Under Title VII retaliation law, however, you don't have to show the adverse action was solely because of the plaintiff's protected activity; you only have to show the protected activity (such as filing an EEOC charge) was merely a substantial reason for the adverse action, not the sole reason. "Thus, granting collateral estoppel effect to those hearing officer findings that were necessary to support his ultimate determination would not preclude Broich from making out the required elements of a Section 1981/Title VII retaliation claim."

In a footnote, the Second Circuit says something else unique to these cases. Even if the Village had sufficient justification to file charges against Broich, that does not mean he has no case. Under DeCintio v. Westchester County, 821 F.2d 111 (2d Cir. 1987), "in the event ... that appellees were motivated by retaliatory animus in instituting the Section 75 proceeding, Title VII would be violated even though there were objectively valid grounds for the proceeding and the resulting discharge."

Broich loses the retaliation appeal, though. All the interesting stuff that I outlined above does not revive his claim. In the end, the Court of Appeals says that "Broich has failed to adduce sufficient evidence to create a genuine dispute of material fact as to whether [the Village] was motivated in substantial part by retaliatory animus in bringing disciplinary charges against him." On collateral estoppel, Broich won the battle. On the Title VII retaliation claim, he lost the war.

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