Opinion
02 Civ. 3564 (RWS)
October 7, 2003
MARCOS MOREL, New York, NY, for Plaintiff
LAW OFFICES OF HARRY WEINBERG, New York, NY, for Defendants
OPINION
Defendants ABM Co., American Building Maintenance Company (collectively, "ABMCo.") have moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the amended complaint of Marcos Morel,pro se ("Morel") alleging discrimination in employment on the basis of race. For the reasons set forth below, the motion is granted.
Prior Proceedings
Morel filed his complaint on May 9, 2002, alleging discriminatory conduct by ABMCo. in his employment and discharge, having received a right to sue letter from the Equal Employment Opportunity Commission ("EEOC") on March 3, 2002.
On March 14, 2003, an order was entered granting ABMCo.'s motion for summary judgment but granting Morel leave to amend his pleadings and directing ABMCo. to state to Morel the consequences of any subsequent summary judgment motion. Morel filed an amended complaint.
ABMCo. again moved for summary judgment on its statement of undisputed facts and Statement to Plaintiff Pro Se Pursuant to Local Civil Rule 56.2 Explaining How to Avoid Dismissal of the Amended Complaint. Morel filed an affidavit in opposition and the motion was marked fully submitted on July 2, 2003.
Facts
The statement by ABMCo. with respect to the following facts is undisputed.
Morel has alleged discrimination in employment on the basis of race (Hispanic), color (Black) and national origin (Dominican), by ABMCo., a building maintenance and janitorial contractor, performing work in commercial office buildings in the New York metropolitan area, including 110 East 59th Street where Morel was employed as a porter.
During Morel's employment with ABMCo., the terms and conditions of his employment were governed by successive collective bargaining agreements between ABMCo. and Local 32B-32J, SEIU (the "Union"), which contained a grievance procedure and a procedure for arbitration of those grievances not settled prior to arbitration, including statutory discrimination claims, such as those set forth in Morel's amended complaint.
Morel filed several grievances with the Union, all of which were pursued through arbitration. By letter dated August 1, 2000, Morel alleged that he had been improperly suspended for five days and that he was being harassed and discriminated against by his supervisor.
By letter dated May 2, 2001, Morel alleged he was wrongfully discharged on April 20, 2001 and sought reinstatement without loss of pay and that his supervisor be cited for harassment and discrimination. His claims of discrimination were raised during the arbitration conducted pursuant to the collective bargaining agreement.
Following hearings on October 15 and December 4, 2001, Arbitrator Dorsey specifically found Morel's claims of discrimination to be without merit and his discharge to be for just cause, stating:
I am fully convinced that the Employer did not single out Morel. The testimony and facts show it began the searches at the direction of the Building Management. Morel was not the first employee searched at either time. All employees leaving on the nights of April 12/13 and 19/20 were searched.
I find the Employer fully established it did not discriminate against Morel. He had been properly ordered that along with all other employees he had to submit to having his bag searched and was told the consequences of his refusal. He had no right to refuse to follow his supervisors' orders on April 20, 2001. If he disputed their right to conduct the search, he should have followed their orders and filed a protest in the grievance procedure. When viewed with his prior disciplinary record, that justified his discharge.Standard for Summary Judgment
Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.15 (2d ed. 1983). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion.Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd, v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
Collateral Estoppel Bars Plaintiffs Claim
A party may not relitigate in federal court matters that were conclusively adjudicated in another forum. Jackobson v. Fireman's Fund Ins. Co., 111 F.3d 261 (2d Cir. 1997). Here Morel seeks to litigate the very same issues that were the subject of the arbitration before Arbitrator Dorsey. As in Ball v. SFX Broad., Inc., 165 F. Supp.2d 230, 236 (N.D.N.Y. 2001), his discrimination claims must be dismissed. Under the principles of res judicata and collateral estoppel recognized in Ball, ABMCo. is entitled to summary judgment dismissing the instant complaint in its entirety. See also Campbell v. Cantor Fitzgerald, 21 F. Supp.2d 341, 349 (S.D.N.Y. 1998); Acevedo v. Holton, 239 A.D.2d 194, 195, 657 N.Y.S.2d 407, 409 (1st Dept. 1997) ("Collateral estoppel may be invoked against a party to preclude litigation of an issue decided against that party in a prior adjudication if there is an identity of issue which has necessarily been decided in the prior proceeding and there was a full and fair opportunity to contest the decision now said to be controlling.").
In his opposition, Morel attaches unsworn statements of three putative witnesses that "American Building Maint. Co. has discriminated against plaintiff, Marcos A. Morel." This conclusion, even if supported adequately by facts, fails to counter the principles of collateral estoppel set forth above.
Conclusion
The motion of ABMCo. is granted and the complaint dismissed with prejudice and without costs.
Settle judgment on notice.
It is so ordered.