Comm’n on Human Rights ex rel.
Hollinger v. Dep’t of Education
OATH Index No. 486/05, mem. dec. (Mar. 3, 2005)
Doctrine of collateral estoppel requires that preclusive effect be
accorded to findings of hearing officer in prior disciplinary
proceeding conducted under Education Law section 3020-a, except
that preclusive effect would not be accorded to credibility
determinations and hearing officer’s belief that witnesses were
“biased.”
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
COMMISSION ON HUMAN RIGHTS
EX REL ROBERT HOLLINGER
Complainant
- against DEPARTMENT OF EDUCATION,
MARCIA GALIANO, and CYNTHIA SUMAY-EATON
Respondents
______________________________________________________
MEMORANDUM DECISION
TYNIA D. RICHARD, Administrative Law Judge
By this proceeding, petitioner Commission on Human Rights (the “Commission”) alleges
various acts of employment discrimination by respondent New York City Department of Education
(the “Department”). The complainant, Robert Hollinger, claims that the Department discriminated
against him by filing false disciplinary charges against him.
This memorandum decision answers the question whether preclusive effect should be
accorded to factual and legal findings made by another administrative tribunal in a prior proceeding. 1
The prior proceeding was conducted by an administrative tribunal of the Department, pursuant to
Education Law section 3020-a, on the basis of the Department’s allegations that Mr. Hollinger
committed numerous acts of misconduct while employed as a school teacher. NYC Board of
1
Pretrial memoranda on the matter were submitted by Mr. Hollinger, through his private counsel, and by the
Department. Petitioner, the Commission on Human Rights, did not submit papers on the issue.
-2Education v. Hollinger, Case No. 4,636 (Oct. 20, 2003). Twenty-nine of 30 specifications alleging
misconduct were dismissed by the hearing officer; one was withdrawn by the Department.
Mr. Hollinger contends that preclusive effect should be accorded to those findings. He also
asserts that doing so will establish the discrimination and entitle him to summary judgment. The
Department contends that the doctrine does not apply because the issues presented in the two
proceedings are not identical, and that its own failure to prove the complainant’s guilt of misconduct
does not establish that the disciplinary charges previously asserted were “false” or brought with
discriminatory intent, as complainant alleges in this proceeding.
The New York Court of Appeals has held that “the doctrines of res judicata and collateral
estoppel are applicable to give conclusive effect to the quasi-judicial determinations of
administrative agencies when rendered pursuant to the adjudicatory authority of an agency to decide
cases brought before its tribunals employing procedures substantially similar to those used in a court
of law.” Ryan v. New York Telephone Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 825-26 (1984)
(citations omitted).
Under New York law, the doctrine of collateral estoppel applies when three criteria are
present. Ryan, 62 N.Y.2d at 500-01, 478 N.Y.S.2d at 826-27. I find that all three criteria are met
here. First, there must be an identity of issues in the two proceedings. Second, the issue must have
been necessarily decided in the prior proceeding. “[T]he issue must have been material to the first
action or proceeding and essential to the decision rendered therein, and it must be the point actually
to be determined in the second action or proceeding such that ‘a different judgment in the second
would destroy or impair rights or interests established by the first.’” Ryan, 62 N.Y.2d at 500-01, 478
N.Y.S.2d at 826 (citations omitted). The litigant seeking preclusion has the burden of proving these
elements. Third, the litigant opposing preclusion must have been afforded a full and fair opportunity
to contest the issue in the prior action. It is the Department’s burden to show that such an
opportunity was not afforded it in the prior proceeding. Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at
827.
In addition to the usual criteria, for issue preclusion to arise from the determinations of
administrative agencies, additional factors must also be considered by the court. Allied Chemical
v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, 532 N.Y.S.2d 230, 232 (1988); see also Long
-3Island Lighting Co. v. IMO Indus., 6 F.3d 876, 885 (2d Cir. 1993); Taylor v. Brentwood Union Free
Sch. Dist., 908 F. Supp. 1165, 1178 (E.D.N.Y. 1995) (holding that panel members were entitled to
absolute immunity because their responsibilities were functionally comparable to those of a judge),
rev’d on other grounds, 143 F.3d 679 (2d Cir. 1998). I find that these additional factors are present
here: (1) the hearing officer in the prior proceeding had the statutory authority to act adjudicatively;
(2) the procedures employed assured that the facts asserted were adequately tested and the issue was
fully aired; (3) giving preclusive effect to the prior findings is fair, and in no way unexpected; and
(4) according preclusive effect to the prior determinations is consistent with the Department’s
scheme of administration. See Allied Chemical, 72 N.Y.2d 271 at 276-77, 532 N.Y.S.2d at 232.
The identical issue presented in both proceedings is whether respondent committed
misconduct. Though such is not the final issue to be determined in this proceeding, it is an issue
which the parties will seek to prove or disprove in this case. The prior proceeding determined, in
large part, that misconduct had not been committed, and those findings are entitled to preclusive
effect and will be undisturbed here. I agree, however, with the Department’s contention that its own
failure to prove the complainant’s guilt of misconduct does not establish that the disciplinary charges
brought were “false” or the product of discrimination. A determination that misconduct did not
occur proves only that; it does not of necessity prove that the charges were brought with an improper
motive. That remains to be established in the present proceeding. Therefore, the Department is
entitled to put on evidence of the actions it took in deciding to bring disciplinary charges against the
complainant to establish its state of mind.
Respondent has made no showing that it did not have a full and fair opportunity to litigate
the issue of misconduct in the prior proceeding. Hearing officer Judith Bello, Esq., conducted the
prior proceeding from March 4 through July 9, 2003. On or about October 20, 2003, she issued her
findings in a 33-page decision based upon a record that contained 13 days of testimony. The hearing
officer’s findings are final, subject to right to appeal to the supreme court. Education Law § 3020-a
(4)(c) & (5). Therefore, giving preclusive effect to these findings would in no way surprise the
Department.
I find that the issue of discrimination was not decided in the prior proceeding, nor was it
“necessary” to a decision in that disciplinary proceeding, and therefore it would not be entitled to
-4preclusive effect here. Although the hearing officer stated her view that the Department’s treatment
of Mr. Hollinger was “inherently biased” (Tr. 25), for several reasons, her view does not constitute
a legal finding of discrimination. First, the word “bias” is common to administrative proceedings
and is not understood to be synonymous with a finding of “discrimination” as that term is defined
under law. Second, there is no legal analysis in the prior decision that indicates that the hearing
officer either contemplated or made a finding of discrimination. Third, a finding of discrimination
is not within the scope of authority given the hearing officer under section 3020-a. Cf. Dep’t of
Juvenile Justice v. Handy, OATH Index No. 276/82, at 12 (Aug. 31, 1983) (refusing to review sex
discrimination claim where it had no inherent subject matter jurisdiction to adjudicate such claims
and received no delegation of such power from an appointing authority with jurisdiction to
adjudicate such claims). Therefore, I find that no preclusive effect may be accorded to the hearing
officer’s finding of bias. Accordingly, there is no basis upon which to grant summary judgment or
to strike respondent’s defenses, as sought by the complainant. And those requests are denied.
Moreover, no preclusive effect is accorded to the prior hearing officer’s credibility findings.
Although the hearing officer’s credibility determinations will have an effect upon this proceeding
to the extent that such determinations are embodied within the factual legal findings that have been
given preclusive effect, those credibility determinations are not findings of fact in and of themselves.
Thus, the credibility of the witnesses at the trial of this proceeding will flow from their demeanor
in this proceeding.
Having found that collateral estoppel should apply to issues of fact and law determined in
the prior proceeding, I have restated those findings below according to each specification, citing the
page number on which it can be found. Exceptions that I have taken to the prior decision are also
noted below. Some of the findings confirm a negative (i.e., that misconduct was not proven), while
others confirm a fact (that something did or did not happen). The parties should note this distinction
for purposes of planning the presentation of their evidence in this proceeding.
Specifications 2 and 30:
As to specification 2, Mr. Hollinger did not grab student “A” by the arm and scream loudly
at her (Tr. 26). As to specification 30, Mr. Hollinger did not intentionally inflict physical harm upon
-5a student. Therefore, the Department did not prove that complainant engaged in corporal punishment
(Tr. 27).
Specifications 4, 7, 8, 10, 16, 23, and 24:
Mr. Hollinger did not render unsatisfactory lessons, as alleged in specifications 4, 8, 10, and
16 (Tr. 25). His homework assignments did not fail to reflect prior instruction relating to spiraled
homework, as alleged in specification 7. Nor would that single failure constitute incompetence.
Deficiencies were not shown in complainant’s instruction, as alleged in specifications 23 and 24.
As a result of the aforementioned, complainant was not incompetent at his job nor did he render
inefficient service.
Specifications 5, 9, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 25, 26, 27, and 29:
As to specification 5, complainant submitted a timely discipline plan (Tr. 27).
As to specification 9, a poem placed on the bulletin board was not inappropriate for display
(Tr. 28).
As to specification 11, complainant did not leave a student in the classroom alone after class
had been dismissed, where Cynthia Sumay-Eaton accepted complainant’s explanation that he did
not give the student permission to return to the class (Tr. 29).
As to specification 12, complainant forgot that he left student “C” with another class for
purposes of a time-out, but the student did not miss lunch as a result. This was misconduct for which
complainant previously received a reprimand, which prevented imposition of an additional penalty
(Tr. 29).
The allegations of specification 13 do not constitute misconduct (Tr. 30).
Specification 14 is insufficiently detailed to put complainant on notice of any misconduct,
therefore no finding was made (Tr. 30). Specification 15 is duplicative of conduct for which a
reprimand was previously imposed (Tr. 30). These specifications did not result in factual findings.
As to specification 17, complainant posted material of a religious nature in his classroom but
was not on proper notice of the precise definition of the term “religious nature” (Tr. 30-31).
Specification 18, which alleged that complainant’s bulletin board had no attractive backing
and that work posted on it was not current or labeled, did not constitute misconduct (Tr. 31).
The events alleged in specifications 19, 20 and 21 did not constitute misconduct (Tr. 31).
-6The Department failed to prove that complainant did not properly administer state tests,
where it submitted insufficient evidence to show what procedures were to be followed for
monitoring the exams cited in specifications 22 and 26 (Tr. 31).
Complainant’s failure to comply with the principal’s directive to submit lesson plans, as
alleged in specifications 25 and 27, was insubordinate (Tr. 31-32). This was misconduct for which
complainant previously received a letter in his file (Tr. 32).
As to specification 29, complainant committed misconduct by failing to meet his students
at the scheduled start of the school day, which resulted in a letter of reprimand (Tr. 32).
Specifications 1, 3, 6, and 28:
Prior to hearing, specifications 1, 3, and 6 were dismissed with prejudice, and specification
28 was withdrawn. Therefore, there were no factual findings with respect to these specifications.
In large part, these findings substantiate that complainant did not commit misconduct,
excluding the following exceptions. Specifications 12, 25, 27, and 29 indicated that misconduct was
committed, though no penalty was imposed. For these specifications, I find that the misconduct was
substantiated, albeit excused by the hearing officer. For those specifications which insufficiently
alleged misconduct – specifications 14 and 15 – factual findings were not made in the prior
proceeding, so there is no preclusive effect here.
Tynia D. Richard
Administrative Law Judge
March 3, 2005
APPEARANCES:
No appearance by Commission
THEODORE BOHN, ESQ.
Attorney for Complainant
ELISA BALDWIN, ESQ.
Attorney for Respondent, Department of Education