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Wilburn v. Eastman Kodak Corp.

November 23, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge


This action was brought by an African-American plaintiff, David Wilburn, against his former employer, Eastman Kodak Corp. ("Kodak") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The complaint, which was filed pro se, asserts six bases for plaintiff's claims, all relating generally to Kodak's alleged discrimination against plaintiff on account of his race, and its alleged retaliation against him for complaining about that discrimination.

Kodak has moved for summary judgment. Plaintiff, who is now represented by counsel, states that he is withdrawing his claims alleging Kodak's wrongful failure to promote him, denial of equal pay, wrongful termination, and retaliation. That leaves just two claims, which the complaint describes as "fostering a hostil[e] environment," and "failure to reprimand harassing co-wo[r]kers." Dkt. #1 ¶ 7. I construe those "claims" in the pro se complaint as bases for what amounts to a single claim of hostile work environment. That also appears to be the position that plaintiff has taken in his response to Kodak's motion. See Plaintiff's Mem. of Law (Dkt. #51).

For the reasons that follow, I find that Kodak is entitled to summary judgment on that sole remaining claim. The complaint is therefore dismissed.


Wilburn began working for Kodak in October 1979. In December 2003, he was notified that his employment would be terminated as part of a large-scale reduction in force at Kodak. The effective date of Wilburn's termination was February 5, 2004.

After exhausting his administrative remedies, plaintiff filed this action in November 2004. This was not, however, the first lawsuit that plaintiff had brought against Kodak. In 2001, while he was still employed at Kodak, Wilburn filed an action in this Court asserting Title VII claims against Kodak based on allegations of a hostile work environment and disparate treatment in the terms and conditions of his employment.

By Decision and Order dated June 17, 2003, Judge Michael A. Telesca of this Court granted Kodak's motion for summary judgment in that case and dismissed Wilburn's complaint. See 01-CV-6061, Dkt. #42. While many of Wilburn's claims were dismissed as time-barred, others were also dismissed on the merits. Judge Telesca stated, for example, that the alleged incidents of harassment by Wilburn's co-workers were "swiftly resolved by Kodak" and that they did not amount to "a material and adverse change in the terms and conditions" of Wilburn's employment. Id. at 10.


Kodak contends that Wilburn's hostile work environment claim is barred by the doctrine of res judicata, by virtue of Judge Telesca's June 2003 decision. I agree.

"Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were or could have been raised in that action." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002); accord King v. Fox, 418 F.3d 121, 131 (2d Cir. 2005). Therefore, "a judgment on the merits in one suit is res judicata in another where the parties and subject-matter are the same, not only as respect matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end." Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993). In determining whether a party's claims were or could have been previously raised, "[i]t is [the] identity of facts surrounding the occurrence which constitutes the cause of action, not the legal theory upon which [plaintiff chooses] to frame [his] complaint," which informs the court's analysis. Id. at 39. See also Channer v. DHS, 527 F.3d 275, 280 (2d Cir. 2008) (in deciding whether a suit is barred by res judicata, court must determine whether second suit involves the same "claim," or "nucleus of operative fact" as the first suit) (internal quotation marks omitted).

For Judge Telesca's decision in Wilburn's prior action to have res judicata effect in the case at bar, then, four factors must be satisfied. The prior decision must have been "(1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." Esquire Trade & Finance, Inc. v. CBQ, Inc., 562 F.3d 516, 520 (2d Cir. 2009) (quoting EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007)).

In response to Kodak's motion, plaintiff cites Second Circuit authority that, "[a]s a matter of logic, when the second action concerns a transaction occurring after the commencement of the prior litigation, claim preclusion generally does not come into play." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 400 F.3d 139, 141 (2d Cir. 2005) (quoting Maharaj v. BankAmerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)). That principle relates to the fourth criterion for the application of res judicata, i.e., that the two actions must have involved the "same" cause of action. See Maharaj, 128 F.3d at 97 ("the first judgment will preclude a second suit only when it involves the same 'transaction' or connected series of transactions as the earlier suit").

In support of this argument, plaintiff contends that the instant suit is based upon certain "racist graffiti" in Wilburn's workplace, which he asserts was not part of the basis for his claims in the prior action. White Decl. (Dkt. #50) ¶ 13. Plaintiff contends that any claims relating to this "new graffiti," id. ¶ 15, could not have been raised in the prior action, since the graffiti ...

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