19-1464
    Williams v. New York City Housing Authority


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
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ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO 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 3rd day of June, two thousand twenty.

    PRESENT:
                ROBERT D. SACK,
                RICHARD C. WESLEY,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________

    Gina Williams,

                               Plaintiff-Appellant,

                      v.                                                      19-1464

    New York City Housing Authority,
    Teamsters Local 237,

                               Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                           Gina Williams, pro se, Queens, NY.

    FOR DEFENDANT-APPELLEE                             Jane E. Lippman, for Kelly D. MacNeal,
    NEW YORK CITY HOUSING                              Executive Vice President and General Counsel,
    AUTHORITY:                                         New York City Housing Authority, New York,
                                                       NY.
FOR DEFENDANT-APPELLEE                             Kate M. Swearengen, Cohen, Weiss, and Simon
TEAMSTERS LOCAL 237:                               LLP, New York, NY.


       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Cogan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Gina Williams, pro se, sued her employer, the New York City Housing

Authority, and her union, Teamsters Local 237, under 42 U.S.C. § 1983 and New York Civil

Service Law § 75 (“CSL § 75”), alleging that the “local hearing” disciplinary procedure in the

defendants’ collective bargaining agreement (“CBA”) violated her due process rights.            She

alleged that due process required that she receive certain procedural protections (such as the right

to an attorney and an opportunity to appeal) at her local hearing, which were not included in the

CBA provision. She also alleged that the defendants conspired against her in executing an

unlawful CBA and that the CBA violated CSL §§ 201(12) and 204-a(1) because the CBA—

specifically, the local hearing provision—was not approved by the legislature. The district court

dismissed Williams’s complaint holding, inter alia, that because she raised the identical due

process claims in a prior state court Article 78 proceeding, collateral estoppel barred her from

relitigating those issues in district court. We assume the parties= familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

       We review de novo the dismissal of a complaint for failure to state a claim, Chambers v.

Time Warner, Inc., 

, 152 (2d Cir. 2002), “accepting as true all factual claims in the

complaint and drawing all reasonable inferences in the plaintiff’s favor,” Fink v. Time Warner

Cable, 

, 740–41 (2d Cir. 2013). A complaint must plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 

, 570 (2007),

and “allow[] the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” Ashcroft v. Iqbal, 

, 678 (2009). Although all allegations in the

complaint are assumed to be true, this tenet does not apply to legal conclusions.

review de novo the district court’s application of res judicata and collateral estoppel. Bank of N.Y.

v. First Millennium, Inc., 

, 919 (2d Cir. 2010). Pro se litigants are entitled to “special

solicitude,” and their complaints are interpreted to raise the strongest claims they suggest. Hill

v. Curcione, 

, 122 (2d Cir. 2011) (internal quotation marks omitted).

I.     Judicial Notice

       As an initial matter, we note that the district court did not explicitly take judicial notice of

Williams’s Article 78 petition or the state court’s decision dismissing her petition. However, the

district court accurately cited caselaw holding that it may consider public records that may be

judicially noticed in ruling on motions made pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See TechnoMarine SA v. Giftports, Inc., 

, 498 (2d Cir. 2014) (“A

court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss when the court’s

inquiry is limited to the plaintiff’s complaint, documents attached or incorporated therein, and

materials appropriate for judicial notice.”).      The district court did not err in considering

Williams’s Article 78 petition and state court decision because they were public records, and thus

appropriate for judicial notice.    See Giraldo v. Kessler, 

, 164 (2d Cir. 2012)

(“[R]elevant matters of public record” are susceptible to judicial notice); Pani v. Empire Blue

Cross Blue Shield, 

, 75 (2d Cir. 1998) (“It is well established that a district court may

rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6), including

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case law and statutes.”); Kramer v. Time Warner Inc., 

, 774 (2d Cir. 1991).

II.     Waiver

        While we liberally construe pro se complaints, pro se appellants must still comply with

Fed. R. App. P. 28(a), which “requires appellants in their briefs to provide the court with a clear

statement of the issues on appeal.” Moates v. Barkley, 

, 209 (2d Cir. 1998) (per

curiam). Thus, despite affording pro se litigants “some latitude in meeting the rules governing

litigation,” we “normally will not[ ] decide issues that a party fails to raise in his or her appellate

brief.” Id.; see also Terry v. Incorporated Vill. of Patchogue, 

, 632–33 (2d Cir.

2016). Nor will we normally decide issues raised only in passing. Gerstenbluth v. Credit Suisse

Sec. (USA) LLC, 

, 142 n.4 (2d Cir. 2013) (pro se litigant “waived any challenge” to

the district court’s adverse ruling because brief mentioned ruling only “obliquely and in passing”).

        Williams waived any challenge to the district court’s holding that collateral estoppel

prevents her from relitigating her due process claims by devoting two conclusory sentences in her

brief to collateral estoppel, in which she asserts that collateral estoppel does not apply because the

CBA is unlawful, referring to her arguments about the purported invalidity of the CBA raised

earlier in her brief. She does not address the district court’s conclusion that Williams raised, and

the state court addressed, identical due process issues in state court, and that she had a full and fair

opportunity to litigate those issues in state court. We therefore affirm the dismissal of her

procedural due process claims.

III.    Remaining Claims

        The district court did not address Williams’s § 1983 conspiracy claim or directly address

her CSL §§ 201(12) and 204-a claims. We may affirm for any reason supported by the record.

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See Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 

, 580 (2d

Cir. 2006).

       Williams also waived any challenge to the district court’s dismissal of her § 1983

conspiracy claim by devoting only one conclusory sentence to it in her brief on appeal—“[b]oth

Defendants have jointly conspired to execute an invalid [CBA] over Plaintiff”—without providing

any argument. See 

n.4. We therefore affirm as to this claim on

the basis of waiver. Beth Israel Med. 

.

       Finally, Williams failed to state a claim under CSL §§ 201(12) and 204-a. The CBA

complied with CSL § 204-a by providing notice that whenever its terms required approval by other

governmental bodies and officials to permit its implementation, it would not become effective until

the appropriate legislative body has given that approval. See N.Y. Civ. Serv. L. § 204-a(1). But

Williams provides no authority that the local hearing procedures—which she claims make the

CBA unlawful and unconstitutional—require legislative approval, CSL § 201(12) indicates that is

the exception, and neither CSL § 204-a nor § 201(12) contains any provision requiring legislative

approval for the CBA’s local hearing procedures (or disciplinary procedures generally).

Williams’s claim is further undercut by the fact that CSL § 76(4) permits public employers and

unions to “supplement[], modif[y], or replace[]” disciplinary procedures set forth in CSL § 75

through a CBA.

Additionally, the New York Court of Appeals has clarified that

while some public sector CBA provisions, such as those dealing with certain appropriation matters,

require legislative approval, CSL §§ 201(12) and 204-a “do[] not by [their] terms vary or extend

the instances in which legislative approval is necessary and do[] not create a necessity for action

by a legislative body where it does not otherwise exist.” Board of Educ. for City School Dist. of

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City of Buffalo v. Buffalo Teachers Fed’n., 

, 375–77 (1996) (emphasis added;

internal quotation marks omitted). As indicated above, Williams points to no authority that the

local hearing provision requires legislative approval. Accordingly, while the district court did not

explicitly dismiss Williams’s §§ 201 and 204-a claim, we conclude that she failed to state a claim

under those provisions and affirm dismissal on that basis. See Beth Israel Med. 

.

       We have reviewed the remainder of Williams’s arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk of Court




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