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July 11, 1985


The opinion of the court was delivered by: KNAPP


Plaintiff Thomas Sullivan sues American Airlines ("American"), Sabena Airlines ("Sabena"), and George Soliman ("Soliman") for defamation and tortious interference with his employment contract. The action is before us by virtue of its removal from state court pursuant to 28 U.S.C. ยง 1441(d) by Sabena, which is majority owned by the Kingdom of Belgium. All defendants now move to amend their answers to assert the affirmative defense of collateral estoppel, and Sabena and Soliman move to assert the affirmative defense of truth. All defendants move for summary judgment on the ground, among others, that plaintiff is precluded from maintaining this suit by virtue of an arbitration decision in a prior proceeding.

 Plaintiff is a former building cleaner employed by American, which was under contract with Sabena to perform cleaning work in Sabena's first class lounge at Kennedy Airport. On June 27, 1983 Soliman, who was the operations manager for Sabena, went with another Sabena employee to the lounge where they observed plaintiff in the performance of his duties. They noticed several bottles of Belgian beer wrapped in a plastic bag lying atop a cleaning barrel. These bottles were unopened and cold to the touch. Soliman looked inside a small refrigerator in the lounge which Sabena stocked with beer and soft drinks for its first class passengers. This cooler normally carried 12 bottles of beer, but Soliman found only two or three. He asked plaintiff about the beer atop the cleaning barrel. Soliman remembers that plaintiff responded, "I took it for the boys." Plaintiff recalls stating that he "was bringing it to my boss."

 Soliman informed plaintiff that he wished to speak with plaintiff's supervisor. The supervisor reported to Soliman's office about 15 minutes later and Soliman told him what had transpired. Soliman then took the supervisor to the first class lounge and attempted to show him the beer in the barrel. It was no longer there. However, when Soliman checked the lounge refrigerator he discovered that it had its full complement of beer.

 Upon further investigation of these events, American discharged plaintiff for violation of company rules. Through his Union, Local 501, Transport Workers Union of America (AFL-CIO) (the "Union"), plaintiff pursued informal grievance procedures provided for by the Collective Bargaining Agreement (the "Agreement") signed by the Union and American. When these efforts to reinstate plaintiff failed, the grievance was submitted for arbitration to the New York Area Board of Adjustment pursuant to the terms of the Agreement. In so doing, plaintiff gave his written authorization for the Union

as my representative to act for me in the disposition of this grievance.

 Paragraph V(k) of Article 32 of the Agreement provides that the decision of a majority of the Board "shall be final and binding upon the parties to such dispute."

 An arbitration followed on two separate days before a panel of three arbitrators: one for the Union, one for the employer, and a "neutral referee" appointed under the provisions of the Agreement. The question before the arbitrators was whether plaintiff had been discharged for just cause, American contending that plaintiff was guilty of attempted theft of beer and plaintiff maintaining his innocence. Plaintiff was given his choice of counsel and he selected the attorney who continues to represent him here. Also present were representatives for the Union and American. Plaintiff testified in his own behalf along with five other witnesses. Each side had the opportunity to conduct direct and cross-examination and each side submitted post-hearing briefs. The transcript of the hearing spans 381 pages.

 Before the arbitrators had rendered a decision, the present lawsuit was filed in state court. About a month after defendants had interposed answers in the state action, the arbitrators handed down a decision in favor of American. By a six-page opinion written by the "neutral referee," in which American's representative concurred and from which the Union's representative dissented, the Board first concluded that plaintiff had been accorded the rights of hearing, representation and consideration granted by the Agreement. The "neutral referee" then wrote

On continued study of the evidence, the unavoidable conclusion is that Sullivan had intended to pilfer the beer. Whatever uncertainty could be derived from the use of the words "boys" and "boss", must be resolved by the uncontravened testimony of Ferrara [plaintiff's supervisor] that Sullivan had told him he had taken the beer for the boys. The beer was not refuse or found items which had to be taken to a supervisor. Their condition was such as to indicate that they were taken from the refrigerator. They were cold and the glass was covered with condensation. Furthermore, Sullivan's many explanations varied so as to give reason to question his credibility. Finally, Sullivan's own actions indicated that he had in fact intended to take the beer to the boys instead of the supervisor. His apology to Soliman and his later discussion with Mazzone [plaintiff's other supervisor] show that he was aware of the misconduct that he had committed.

 By affirmation, counsel for plaintiff states that about two months after the arbitrators had rendered their award, he wrote to the president of plaintiff's Union and requested that he move to set aside the decision of the arbitrators. He states that, not having received a response to this request he called the offices of the Union and was told that it was the Union's policy not to move to vacate awards. By reply affidavit, counsel for American states that a search by the Union of the president's files located no correspondence from counsel for plaintiff. No appeal from the arbitrators' award was taken.


 Amendment to Pleadings

 Defendants' motions to amend their answers to assert the affirmative defense of collateral estoppel are granted. When defendants filed their answers, the arbitrators had not yet rendered their decision. It was therefore impossible for defendants to have asserted that the award precluded further litigation. Amendments to pleadings are to be granted liberally under F.R.C.P. 15(a), see Middle Atlantic Utilities Co. v. SMW Development Corp. (2d Cir. 1968) 392 F.2d 380, 384, and plaintiff, who was certainly aware of the imminence of an arbitrators award, cannot assert he was unduly surprised by the proposed amendment. We see less excuse for Sabena's failure to plead the affirmative ...

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