How to win a civil rights case after losing the disciplinary hearing

One of the challenges in representing public employees in civil rights litigation is that if they were disciplined prior to the lawsuit, you may run into procedural obstacles that are unique to public employees, res judicata and collateral estoppel. The plaintiff in this case gets around those obstacles.

The case is Abdelal v. Kelly, a summary order issued on February 21. Plaintiff was a NYC police officer who was fired in 2013 following a disciplinary hearing into alleged misconduct. Private employees do not always get due process hearings like this, but public employees often do. While the hearing gives the employee a chance to expeditiously prove his innocence before a hearing officer. If the employee wins the hearing, he keeps his job. If he loses the hearing, he can file an Article 78 petition in court. Those petitions often fail, as the courts are loathe to second guess the hearing officer's factual and credibility determinations. That is what happened here.

Plaintiff did not give up after losing the due process hearing and Article 78 petition. He filed suit in the Southern District, claiming he was treated differently because of his national origin and was subjected to a hostile work environment. How can he bring this case if the due process hearing sustained the disciplinary charges against him? Wasn't that his day in court. Sometimes yet, but not in this case.

The Court of Appeals (Walker, Lynch and Chin) finds a way to revive this case even though plaintiff lost the disciplinary hearing and Article 78. First, there is no res judicata (claim preclusion) problem because a civil rights lawsuit gets you damages that were never available during the disciplinary proceeding. In other words, the civil rights case is a new claim that is separate and apart from the one he lost at the hearing. The case for that proposition is Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995).

The tricker issue is collateral estoppel, or issue preclusion. Management argues that if plaintiff was found guilty of work-related misconduct at the disciplinary hearing, he cannot relitigate those issues in a civil rights case because those facts have already been resolved after a full and fair proceeding. But the law is more nuanced than that. Plaintiff did not raise his racial and religious discrimination claims at the disciplinary hearing, and the Appellate Division in rejecting the Article 78 appeal did not mention those issues, either. "The fact that the First Department concluded that the administrative record contained 'substantial evidence to support the finding that petitioner engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD' does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons."