17‐1166‐cv
Abdelal v. Kelly, 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 21st day of February, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR.,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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MOHAMED ABDELAL,
Plaintiff‐Appellant,
v. 17‐1166‐cv
POLICE COMMISSIONER RAYMOND W.
KELLY, CITY OF NEW YORK,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: DEBRA L. GREENBERGER, Elizabeth
Sykes Saylor, Emery Celli Brinckerhoff
& Abady LLP, New York, New York,
and Christopher Q. Davis, The Law
Office of Christopher Q. Davis, PLLC,
New York, New York.
FOR DEFENDANT‐APPELLEE: SUSAN P. GREENBERG, Senior
Counsel (Richard Dearing, Claude S.
Platton, Assistant Corporation Counsels,
on the brief), for Zachary Carter,
Corporation Counsel of the City of New
York, New York, New York.
Appeal from the judgment of the United States District Court for the
Southern District of New York (Carter, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is VACATED
and the case is REMANDED for further proceedings.
Plaintiff‐appellant Mohamed Abdelal appeals from a judgment entered
April 24, 2017, in favor of defendants‐appellees Police Commissioner Raymond W.
Kelly and the City of New York. By memorandum‐decision and order entered that
same day, the district court granted defendants‐appelleesʹ motion for summary
judgment and dismissed the complaint in this employment discrimination case. We
assume the partiesʹ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Abdelal is a former police officer who worked for the New York Police
Department (ʺNYPDʺ) from 2006 until he was fired in 2013. He is a naturalized United
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States citizen who was born in Egypt and is Muslim. During the course of his
employment, he was investigated for and eventually charged (in administrative
disciplinary proceedings) with eleven specifications of misconduct. He pleaded guilty
to seven of them, and disputed four. The alleged misconduct included the following:
In September 2007, Abdelal failed to properly search a prisoner under his
supervision and failed to properly maintain a prisoner roster. He disputed that
he failed to properly search the prisoner.
In March 2008, Abdelal visited Hudson County Correctional Facility while he
was off‐duty. He told a corrections officer that he was there to visit an inmate,
Eslam Gadou, as part of an INTERPOL investigation, when in reality he was
there to talk to Gadou on behalf of a friend who was a victim of Gadouʹs fraud.
Abdelal disputed that he represented he was with INTERPOL.
In July 2008, while on sick leave, Abdelal traveled to Las Vegas, Nevada, in
violation of NYPD rules.
Abdelal moved to New Jersey without notifying his commanding officer.
Abdelal worked another job without the requisite off‐duty employment
approval.
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The NYPD Advocateʹs Office (ʺDAOʺ) filed disciplinary charges against
Abdelal on September 5, 2008, August 17, 2009, September 3, 2009, and November 1,
2011. Abdelal first learned that he was being investigated on May 20, 2009, when IAB
interviewed him with respect to his visit to the correctional facility. DAO proposed a
pre‐trial plea of a 60‐day suspension and dismissal probation for one year. Kelly,
however, rejected the proposed plea and proposed an alternative plea pursuant to
which Abdelal would be required to file for vested retirement. Abdelal rejected this
plea offer and chose to go to trial.
After a five‐day trial, Deputy Commissioner of Trials Martin G. Karopkin
submitted a recommendation to Kelly in which he found Abdelal guilty of nine charges,
dismissed two charges, and recommended a penalty of one‐year dismissal probation
and forfeiture of 45 vacation days. Kelly adopted the factual findings but rejected the
penalty, and instead offered a negotiated penalty that would require Abdelal to
immediately file for vested retirement. Abdelal rejected the proposed penalty and Kelly
terminated him effective January 29, 2013.
Abdelal filed a charge with the EEOC in March 2013. In May 2013,
Abdelal commenced a state court proceeding challenging his termination pursuant to
Article 78 of the New York Civil Practice Laws and Rules. He alleged that Kellyʹs
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decision to reject the proposed punishment and terminate him was not supported by
substantial evidence and was arbitrary, capricious, unduly harsh, and discriminatory.
On June 16, 2014, the Article 78 proceeding was transferred to the Appellate Division,
First Department. On March 17, 2016, the First Department upheld Abdelalʹs
termination and denied his Article 78 Petition.
While the Article 78 proceeding was pending, on June 21, 2013, Abdelal
filed this lawsuit in the district court claiming that the defendants discriminated against
him and subjected him to a hostile work environment because of his (1) Egyptian
national origin, (2) Arab ancestry, and (3) Muslim religion. The complaint included
fourteen causes of action under 42 U.S.C. § 1981, 42 U.S.C. § 2000 et seq. (ʺTitle VIIʺ), the
New York State Human Rights Law (ʺNYSHRLʺ), and the New York City Human
Rights Law (ʺNYCHRLʺ). On July 6, 2016, the defendants moved for summary
judgment. The district court granted the motion and dismissed the complaint. The
district court held that: (1) Abdelalʹs disparate treatment claims based on his
termination were ʺbarred by res judicataʺ; and (2) his hostile work environment claims
were time‐barred. Spec. App. 12‐15. This appeal followed.
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On appeal, Abdelal argues that the district court erred in holding that the
state court Article 78 proceeding precluded his discrimination claims and that his
hostile work environment claims were untimely.
I. Preclusion of Discrimination Claims
The district court granted summary judgment on Abdelalʹs disparate
treatment claims on the ground that they were precluded by the First Departmentʹs
Article 78 decision. To the extent the district court relied on the doctrine of res judicata
(claim preclusion), which ʺbars an action if the plaintiff could have raised the claim in a
prior proceeding,ʺ even if he did not, its decision was in error, because that doctrine
ʺgenerally does not operate to bar a § 1983 suit following the resolution of an Article 78
proceeding, since the full measure of relief available in the former action is not available
in the latter.ʺ Colon v. Coughlin, 58 F.3d 865, 870 n.3 (2d Cir. 1995) (emphasis added); see
also Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004).
Nor are Abdelalʹs claims barred by collateral estoppel (issue preclusion).
That doctrine applies only if ʺ(1) the issue in question was actually and necessarily decided
in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the first proceeding.ʺ Colon, 58 F.3d at 869
(emphasis added). ʺThe party asserting [collateral estoppel] bears the burden of
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showing that the identical issue was previously decided, while the party against whom
the doctrine is asserted bears the burden of showing the absence of a full and fair
opportunity to litigate in the prior proceeding.ʺ Id. We review a district courtʹs
collateral estoppel determination de novo. Id.
Here, defendants do not meet their burden of showing that the identical
issues had been decided in the Article 78 proceeding. Indeed, the district court
explicitly noted that Abdelal had not raised his race and religion claims of
discrimination in the Article 78 proceeding. Moreover, it is not apparent that any issue
with respect to discrimination was ʺactuallyʺ decided in the Article 78 proceedings, as
the First Department made no mention of any discrimination claim in its decision
dismissing the Article 78 petition. The fact that the First Department concluded that the
administrative record contained ʺsubstantial evidence to support the finding that
petitioner engaged in conduct prejudicial to the good order, efficiency and discipline of
the NYPD,ʺ App. 704‐05, does not mean that the court considered and rejected Abdelalʹs
claims that he was subjected to harassment and disproportionate punishment for
discriminatory reasons. See Vargas, 377 F.3d at 206 (ʺWhile it is true that the Article 78
court passed upon the propriety of Vargasʹs termination, this acknowledgment does not
demonstrate that the court ʹactually and necessarilyʹ decided an issue that was never
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presented to it, even if that issue touched, in a general sense, on the propriety of the
termination.ʺ).
That Abdelal made a conclusory reference to discrimination in his Article
78 papers does not affect our conclusion. The First Department could reasonably have
determined that Abdelal had not adequately raised a claim of discrimination, and given
its silence on the issue, it is far from ʺquite clearʺ that the First Department rejected such
a claim on the merits. Colon, 58 F.3d at 869; see also Weston v. Cornell Univ., 983 N.Y.S.2d
353 (3d Depʹt 2014) (holding that collateral estoppel did not bar later gender
discrimination claims where plaintiff had simply referenced discrimination in her
Article 78 petition, the ʺthrustʺ of her Article 78 challenge concerned other issues, and
the Article 78 court did not expressly address discrimination).
Accordingly, we conclude that the district court erred in holding that
Abdelalʹs discrimination claims are precluded by the Article 78 proceeding.
II. Timeliness of Hostile Work Environment Claims
We also agree that the district court erred in finding Abdelalʹs hostile
work environment claims untimely.
The district court analyzed timeliness based solely on the IAB
investigation that concluded on September 30, 2009. But Abdelal presented evidence of
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alleged harassment after that date. He contends that the Level II performance
monitoring, which continued until September 2012, and the integrity tests in July 2010
and February 2011 are all part of his claims that there was a pattern of harassing
conduct. ʺ[C]onsideration of the entire scope of a hostile work environment claim,
including behavior alleged outside the statutory time period, is permissible for the
purpose of assessing liability, so long as an act contributing to that hostile environment
takes place within the statutory time period.ʺ Natʹl R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002).
Properly construed, Abdelalʹs hostile work environment claims concern a
pattern of behavior that lasted until September 2012, bringing the claims within all of
the relevant limitations periods. See Zerilli‐Edelgalss v. N.Y.C. Transit Auth., 333 F.3d 74,
76 (2d Cir. 2003) (construing Title VII limitations period for hostile work environment
claims); N.Y. Exec. Law § 297(9) (establishing statute of limitations for claims under
NYSHRL); N.Y.C. Admin. Code § 8‐502(d) (establishing limitations period for
NYCHRL).1
1 We need not address whether Abdelalʹs § 1981 claim is subject to the statuteʹs four‐year statute of
limitations or the shorter statute of limitations that governs § 1983. See Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 733 (1989) (ʺ[T]he express cause of action for damages created by § 1983 constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.ʺ). Whether
construed as a stand‐alone § 1981 claim or a § 1983 claim that vindicates the rights guaranteed in § 1981,
the claim is timely either way.
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Accordingly, we conclude that the district court erred in dismissing
Abdelalʹs hostile work environment claims as untimely.
. . .
Defendants ask this Court to affirm on the alternative ground that they
were entitled to summary judgment on the merits because Abdelal failed to
demonstrate a triable issue of fact as to whether he was fired for a discriminatory reason
or subject to a hostile work environment. We decline to reach the argument as the
district court based its summary judgment rulings only on the issues of preclusion and
timeliness. We remand the case to the district court to consider, in the first instance, the
merits of the claims, as to which we express no view.
We have considered Abdelalʹs remaining arguments and find them to be
without merit. Accordingly, we VACATE the judgment and REMAND the case for
further proceedings consistent with this order.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk of Court
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