    17-3776-cv
    Washington v. New York City Department of Education

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                             AMENDED 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 9th day of July, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             PETER W. HALL,
                                     Circuit Judges,
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    Janet Washington,
             Plaintiff-Appellant,

                 -v.-                                          17-3776-cv

    New York City Department of Education,
    Jeffrey Santiago, as principal of C.S.
    67, Donna Ferguson, as assistant
    principal of C.S. 67, Carmen Noriega,
    as assistant principal of C.S. 67,
             Defendants-Appellees.

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    FOR PLAINTIFF-APPELLANT:                      Marshall B. Bellovin,
                                                  Ballon Stoll Bader &
                                                  Nadler, P.C., New York, NY.



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FOR DEFENDANTS-APPELLEES:        Richard Dearing for Zachary
                                 W. Carter, Corporation
                                 Counsel of the City of New
                                 York (Fay Ng, Megan E.K.
                                 Montcalm, on the brief),
                                 New York, NY.

     Appeal from the judgment of the United States District
Court for the Southern District of New York (Ramos, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court is
AFFIRMED.

     Janet Washington appeals the judgment of the United
States District Court for the Southern District of New York
dismissing her disability discrimination and her
retaliation claims against the New York City Department of
Education (“Department”) and several principals and
assistant principals of public school C.S. 67 (collectively
the “Defendants”). We assume the parties’ familiarity with
the underlying facts, the procedural history, and the
issues presented for review.

     Washington began teaching fourth grade at C.S. 67 in
2000, and received tenure in 2003. She suffers from
obesity and Chronic Inflammatory Demyelinating
Polyneuropathy, which limit her mobility. Washington avers
that Jeffrey Santiago, the principal of C.S. 67,
discriminated against her on the basis of her disability
and mounted a campaign to force her to leave the school,
ultimately resulting in her termination. Washington sued
alleging (variously) disability discrimination and
retaliation, in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111; the
New York State Human Rights Law, N.Y. Exec. Law § 290 et
seq.; and the New York City Human Rights Law, N.Y.C. Admin.
Code § 8-101 et seq. Her complaint alleges the following
facts in support of her claims.

     After Santiago became principal in 2012, the
administration allegedly began drumming up pretexts for
giving Washington negative teaching reviews, and she
received ineffective ratings for the 2013-14 and 2014-15
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school years. Some of the citations related to her lack of
mobility and difficulty moving about the classroom, while
others focused on her choice of curriculum and failure to
provide resources for her students. Near the end of the
spring 2015 term, Washington filed a complaint with the
Office of Special Investigations (“OSI”), citing a death
threat from a student and Santiago’s failure to address it.
Santiago then instructed Washington to seek a medical
examination on the (allegedly false) premise that
Washington was having difficulty functioning in the school
environment and that C.S. 67 could not provide her with
proper accommodation, even though Washington had not
required special medical accommodation since 2008. In July
2015, Washington was assigned kindergarten for the 2015-16
school year, even though school policy dictated that she
was entitled to second, third, or fourth grade (her top
three choices). Washington also alleges that, in the
spring of 2015, Santiago made demeaning comments about her
weight to other Department officials.

     In September 2015, after receiving an overall
ineffective rating for the second consecutive school year,
the Department brought a proceeding under New York
Education Law Section 3020 (“3020-a hearing”) to determine
whether just cause existed for Washington’s termination.
See N.Y. Educ. Law §§ 3020, 3020-a, 3012-c(5-a)(a)-(k). At
her January 2016 hearing, Washington argued that she faced
disability discrimination at her school, and that Santiago
and others had used negative evaluations and an overly
severe medical accommodation letter as pretext. After
reviewing evidence and taking testimony from thirteen
witnesses, the hearing officer concluded that the
Department had established just cause for termination, and
that Washington had shown insufficient evidence of
discriminatory animus.

     The district court dismissed Washington’s complaint,
ruling that collateral estoppel from issues raised and
decided at the Section 3020-a hearing bars re-litigation of
the discrimination claim, and that Washington had not
properly alleged retaliation because her 2015 OSI complaint
was not “protected activity” under the ADA or the state and
city discrimination statutes. We review de novo the


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district court’s grant of a motion to dismiss. Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

     The doctrine of collateral estoppel bars re-litigation
of a legal or factual issue that was previously decided
where: “(1) the issues in both proceedings are identical,
(2) the issue in the prior proceeding was actually
litigated and actually decided, (3) there was [a] full and
fair opportunity to litigate in the prior proceeding, and
(4) the issue previously litigated was necessary to support
a valid and final judgment on the merits.” Grieve v.
Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (alterations in
original) (quoting United States v. Hussein, 178 F.3d 125,
129 (2d Cir. 1999)).

     “New York courts will give administrative
determinations preclusive effect if made in a quasi-
judicial capacity and with a full and fair opportunity to
litigate the issue.” Burkybile v. Bd. of Educ. of
Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306, 312
(2d Cir. 2005) (citation omitted). Plaintiff asserts that
Section 3020-a hearings do not result in the sort of final
judgment that can give rise to collateral estoppel in
federal court. However, it is well-settled that a
“[S]ection 3020-a hearing is an administrative adjudication
that must be given preclusive effect” when the elements of
collateral estoppel are satisfied. Id. at 311-12; see,
e.g., Roemer v. Bd. of Educ. of City of New York, 150 F.
App'x 38, 39 (2d Cir. 2005) (summary order)
(“Collateral estoppel, also termed issue preclusion,
applies to administrative adjudications, including 3020–
a hearings.”).

     The January 2016 Section 3020-a hearing satisfies the
elements of collateral estoppel and has preclusive effect.
The issue of discrimination was actually litigated and
decided, and the arguments raised were identical to those
briefed for the discrimination claim on appeal: Plaintiff
argued before Arbitrator Brown that she was terminated due
to her physical condition, and the defendants responded
that she was terminated for cause due to complaints about
her subpar performance. See Grieve, 269 F.3d at 153; see,
e.g., Smith v. New York City Dep’t of Educ., 808 F. Supp.
2d 569, 580-81 (S.D.N.Y. 2011) (“Thus, because the hearing
                             4
officers concluded that there existed just cause for the
adverse employment actions, those officers actually decided
that [Plaintiff] cannot make out a prima facie case of
discrimination nor can he put forth evidence of pretext.”).
Washington relies on Matusick v. Erie Cnty. Waster Auth.,
757 F.3d 31 (2d Cir. 2014) and Leon v. N.Y.C. Dep’t of
Educ., 612 F. App’x 632 (2d Cir. 2015) (summary order);
however, those cases are distinguishable because, as
Washington acknowledges, the hearing officer in the present
case ruled decisively and specifically on whether
Washington suffered disability discrimination after
considering the arguments from each side. See App’x at 111
(conclusion of Arbitrator Brown that Plaintiff’s “evidence
of actual animus is weak” and that “just cause exists for
the termination of [Plaintiff’s] employment”).

     The Section 3020-a hearing also afforded a full and
fair opportunity to litigate the issue of discrimination.
Plaintiff was permitted to request the production of
material, call and cross-examine witnesses, and present
relevant evidence. See Burkybile, 411 F.3d at 312.
Plaintiff challenges certain of the arbitrator’s
evidentiary decisions, but the proceeding is not rendered
unfair or incomplete because some evidentiary rulings were
unfavorable. The district court correctly concluded that
the Plaintiff’s discrimination claims are collaterally
estopped by the factual findings of her Section 3020-a
hearing.

     Washington also alleges that she was terminated in
retaliation for the filing of the April 2015 OSI complaint,
in violation of the ADA and comparable New York State and
New York City anti-discrimination provisions.1 See N.Y.
Exec. Law § 290; N.Y.C. Admin. Code § 8-101; 42 U.S.C. §
12111 et seq. To survive a motion to dismiss on a First
1 The Complaint also links Plaintiff’s termination to a
complaint she filed with the Equal Employment Opportunity
Commission in March 2016. However, Plaintiff did not
pursue this argument in her opening brief, and it is thus
waived for the purposes of this appeal. See Appellant’s
Br. at 18-20; see also Deep Woods Holdings, LLC v. Savings
Deposit Ins. Fund of Rep. of Turkey, 745 F.3d 619, 623 (2d
Cir. 2014).
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Amendment retaliation claim under any of these anti-
discrimination regimes, the Complaint must allege that the
Plaintiff engaged in recognized “protected activity” under
the relevant statute. See Treglia v. Town of Manlius, 313
F.3d 713, 719 (2d Cir. 2002) (reciting the elements of a
retaliation claim under the ADA and NYSHRL); Albunio v.
City of N.Y., 16 N.Y.3d 472, 477 (2011) (same for NYCHRL).

     Requests for disability accommodation and complaints
about working conditions are protected activities. Kotcher
v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir.
1992); Sumner v. United States Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990). However, such complaints must
specifically relate to conduct prohibited by statute. See
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
108 (2d Cir. 2011). Plaintiff’s OSI complaint, which
concerned Principal Santiago’s failure to act on a
student’s death threat, appears unrelated to Plaintiff’s
disability or any conduct prohibited by the ADA. The
filing of the OSI complaint is therefore not protected
activity and cannot form the basis of a legally cognizable
retaliation claim.

     For the foregoing reasons, and finding no merit in the
Washington’s other arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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