       14-1811
       Leon v. N.Y.C. Dep’t of Educ., et al.


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



              At a stated term of the United States Court of Appeals for the Second
       Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
       Square, in the City of New York, on the 22nd day of May, two thousand and
       fifteen.

       PRESENT: AMALYA L. KEARSE,
                  BARRINGTON D. PARKER,
                  RICHARD C. WESLEY,
                             Circuit Judges.
       ____________________________________________

       LILLIE LEON,

                                        Plaintiff-Appellant,

                       -v.-                                            No. 14-1811

       THE NEW YORK CITY DEPARTMENT OF
       EDUCATION, AKA THE CITY SCHOOL
       DISTRICT OF THE CITY OF NEW YORK,
       PAULA CUNNINGHAM, in her Individual and
       Official Capacity, NERIDA URBAN, in her
       Individual and Official Capacity, and HARVEY
       KATZ, in his Individual and Official Capacity,
                      Defendants-Appellees.
____________________________________________

FOR APPELLANT:              STEWART LEE KARLIN, The Law Offices of
                            Stewart Lee Karlin, P.C., New York, NY.

FOR APPELLEES:              MARTA ROSS, Assistant Corporation Counsel, for
                            Zachary W. Carter, Corporation Counsel, New
                            York, NY.
____________________________________________

     Appeal from the United States District Court for the Eastern District of
New York (Kuntz, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be and

hereby is AFFIRMED IN PART, and VACATED and REMANDED IN PART.

       Plaintiff-Appellant Lillie Leon appeals from a judgment of the United

States District Court for the Eastern District of New York, 1 dismissing her claims

against Defendants-Appellees, including the New York City Department of

Education and Paula Cunningham, pursuant to the Age Discrimination in


1We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), construing the complaint liberally, accepting all well-pled
factual allegations in the complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We also
review de novo a district court’s legal conclusion that a state proceeding’s fact-finding of
a legitimate basis for employment termination collaterally estops re-litigation of related
issues in federal court. Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 45 (2d Cir. 2014).


                                              2
Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., 42 U.S.C. § 1983, the New

York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and

other state law and municipal code grounds. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal.

      Leon’s discrimination, retaliation, and related claims arise from her

employment at P.S. 117 in Queens, NY, for a period prior to the 2010-11 school

year and in connection with the 2010-11 school year itself.

      We affirm the District Court’s dismissal pursuant to Rule 12(b)(6) of Leon’s

claims arising from the period prior to the 2010-11 school year of discrimination

and retaliation under the ADEA, the ADA, and the NYSHRL and of failure to

accommodate under the ADA. We also affirm the dismissal of all of Leon’s

claims of hostile work environment under the ADEA and the NYSHRL arising

from the 2010-11 school year and from the period prior to it. 2 Because Leon does

not sufficiently argue on appeal that the District Court erred in dismissing her

First Amendment retaliation claim under 42 U.S.C. § 1983, she forfeits this




2
 To the extent that Leon’s appeal can be construed to raise a hostile work environment
claim under the ADA, see Appellant Br. 43–44, we reject such a claim because it was
never pleaded in the Amended Complaint.


                                           3
argument. See Hicks v. Baines, 593 F.3d 159, 166 n.5 (2d Cir. 2010); Norton v. Sam’s

Club, 145 F.3d 114, 117 (2d Cir. 1998).

      The District Court also held that a previously-adjudicated finding of just

cause for Leon’s termination pursuant to New York Education Law § 3020-a

collaterally estops federal litigation of her discrimination, retaliation, and

accommodation claims concerning the 2010-11 school year.

      Under New York law, the doctrine of collateral estoppel bars re-litigation

of an issue when: “(1) the identical issue necessarily was decided in the prior

action and is decisive of the present action, and (2) the party to be precluded

from relitigating the issue had a full and fair opportunity to litigate the issue in

the prior action.” Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006) (citing Kaufman

v. Eli Lilly & Co., 482 N.E.2d 63 (N.Y. 1985)). The bar can apply even if the

tribunals or causes of action differ. Lafleur v. Whitman, 300 F.3d 256, 271 (2d Cir.

2002). Section 3020-a findings are entitled to preclusive effect. Burkybile v. Bd. of

Educ., 411 F.3d 306, 308 (2d Cir. 2005).

      The District Court erroneously concluded that the Section 3020-a hearing’s

“determination that there was cause for [Leon’s] termination precludes [Leon]

from making a prima facie case of discrimination or retaliation,” App. 115.




                                           4
There is no indication that the Section 3020-a hearing addressed, much less

“actually decided,” whether the charges leading to Leon’s termination were

driven, even in part, by discriminatory or retaliatory intent. The court’s error

thus stems from the faulty assumption that termination for cause necessarily

precludes the possibility of termination motivated by unlawful animus. “[T]he

hearing officer’s determination that [the plaintiff] had engaged in the charged

conduct, and that these violations called for h[er] termination, does not preclude

a jury from later finding that [the plaintiff] was also terminated at least in part

because of [discriminatory reasons]. The plaintiff could be successful on the

[discrimination or retaliation] claims even if the jury were to accept that there

were legitimate reasons for terminating h[er], too.” Matusick v. Erie Cnty. Water

Auth., 757 F.3d 31, 47 (2d Cir. 2014).

      Likewise the District Court erroneously concluded that the Section 3020-a

hearing’s determination “that Plaintiff did not apply for an accommodation for

air conditioning from [DOE’s] Medical Bureau” precludes Leon “from alleging a

necessary element of her failure to accommodate claim.” App. 117–18 (internal

quotation marks omitted). While Leon is estopped from challenging the Hearing

Officer’s factual finding that she failed to apply to the Medical Bureau for an air




                                           5
conditioning accommodation, Leon also alleges that she informed Defendants of

her air conditioning-related health concerns and had filed medical

documentation to that effect with the school. See App. 25. The overall adequacy

of Leon’s accommodation requests cannot be determined based on the Amended

Complaint or documents reasonably viewed as incorporated in it.

      In sum, as to Leon’s discrimination, retaliation, and accommodation claims

under the ADEA, the ADA, and the NYSHRL for the 2010-11 school year, we

vacate and remand for further proceedings because the dismissals cannot be

justified under Rule 12(b)(6). Our reversal of the District Court on these claims is

no indication as to the appropriateness of a later Rule 56 motion following

whatever discovery the District Court deems appropriate.

      We also vacate the District Court’s decision not to exercise supplemental

jurisdiction over certain of Leon’s state and municipal code claims and remand to

the District Court to reconsider its decision in light of the surviving federal

claims. We have considered all of Leon’s remaining arguments and find them to

be without merit. Accordingly, for the reasons set forth above, the judgment of

the District Court is AFFIRMED IN PART, and VACATED and REMANDED

IN PART to the District Court for further proceedings consistent with this order.




                                          6
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk




  7
