Thomas J. JEFFREYS, Plaintiff-Appellant, v. TEAMSTERS UNION LOCAL 1150, Defendant-Appellee, 28 F. App'x 92

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED. In June 1997, the plaintiff, proceeding pro se and informa pauperis, brought this action under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and 42 U.S.C. § 1983. The plaintiff alleges that the defendant violated a collective bargaining agreement by failing to abide by the agreement’s recall provisions and in its handling of his grievances against his employer.

On February 28, 2001, the magistrate judge issued a report and recommendation concluding that the defendant’s motion for

summary judgment should be granted. The magistrate judge decided that the plaintiff is collaterally estopped from pursuing his ADA and Rehabilitation Act claims because they rely upon issues that were decided against the plaintiff in an unsuccessful earlier action against his employer. See Jefferies [sic] v. United Tech. Corp., Sikorsky Aircraft Div., Civ. No. 3:97CV1344 (DJS) (D.Conn. Aug. 12, 1999). The magistrate judge also concluded that the plaintiffs action under 42 U.S.C. § 1983 fails because the plaintiff has not submitted evidence showing that the defendant was acting under color of state law.

The district court endorsed the magistrate judge’s recommendations, and entered judgment against the plaintiff on April 20, 2001. We conclude from our review of the record that the magistrate judge correctly decided that the plaintiff is collaterally estopped from pursuing his claims under the ADA and Rehabilitation Act because of the finding in Sikorsky that the plaintiff was not disabled within the meaning of either of these acts.

For a party to be collaterally estopped from raising an issue, there must have been a prior proceeding in which the party had a full and fair opportunity to litigate, and which involved an issue that (1) was identical to the issue in the current proceeding, (2) was actually litigated and decided, and (3) was necessary to support a valid and final judgment on the merits. Flaherty v. Lang, 199 F.3d 607, 613 (2d Cir.1999). The Sikorsky proceeding meets these requirements.

Moreover, identity of both parties is not an element of collateral estoppel, and thus the plaintiff is incorrect in his argument that he may re-litigate the issue of his disability based on the fact that Sikorsky involved a different defendant. We also find without merit the plaintiffs argument that he may re-litigate the issue of his disability based on the presentation of allegedly new evidence. Although the discovery of “significant new evidence” can overcome the preclusive effect of a prior preceding, see Khandhar v.

Efenbein, 943 F.2d 244, 249 (2d Cir.1991), the EEOC guidelines concerning disability to which the plaintiff refers are not evidence at all. Rather, they are legal authority, codified at 29 C.F.R. § 1630.2, and they were fully available to the court in Sikorsky. Similarly, we reject the plaintiffs argument that

summary judgment was premature because the plaintiff had not yet obtained the affidavit of a union officer. The plaintiff has not shown that the officer’s testimony would have borne on the issue of his disability, and thus has not demonstrated that he was prejudiced by his inability to obtain the officer’s affidavit. We also agree with the magistrate judge’s conclusion that the plaintiffs claims under 42 U.S.C. § 1983 must fail because the defendant is not a state actor.

Finally, we acknowledge that the plaintiffs statements in his complaint regarding the defendant’s alleged failure to protect his rights and pursue his claims against his employer under the collective bargaining agreement could be read as an allegation that the defendant breached its duty of fair representation in violation of 29 U.S.C. § 159(a). However, the plaintiff conceded at oral argument that he failed to give notice of his desire to be recalled after his layoff within the six-month period required by the collective bargaining agreement.

Consequently, there was no timely claim under the collective bargaining agreement for the defendant to pursue on the plaintiffs behalf, and the plaintiff lacks a factual basis for his allegation of breach of duty. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.