Casmento, Jr. v. Volmar Construction, Inc.
- Lewis Liman
- 1:20-cv-00944
- U.S. District Court · Southern District of New York
- 11
In Casmento v. Volmar, Judge Liman denied summary judgment because disputed facts remained and OSHA’s investigation did not bar the claims.
The ruling affects Clifford Casmento, Jr. and defendants Volmar Construction, Inc., Efstathia Marinakis, and John Volandes. It denied the defendants’ request for judgment on the claims at this stage.
What happened
In Casmento, Jr. v. Volmar Construction, Inc., Clifford Casmento claimed that Volmar Construction, Inc., Efstathia Marinakis, and John Volandes fired or demoted him after he reported construction-site safety violations. He also added claims alleging termination because of an actual or perceived visual impairment.
The defendants argued that Casmento resigned, failed to give required notice to the New York Attorney General, and was barred from pursuing his claims because of an Occupational Safety and Health Administration investigation. The court found a factual dispute about whether he resigned or was fired, accepted his evidence that notice was given, and ruled that the OSHA investigation was not a court-like proceeding that could bar his claims.
Judge Liman denied the defendants’ motion for summary judgment. The case therefore was not resolved in the defendants’ favor on these grounds.
The detailed version
- Casmento, Jr. v. Volmar Construction, Inc. · No. 1:20-cv-00944
- Lewis Liman
- Mar. 19, 2021
Background
Clifford Casmento, Jr. began working as Volmar Construction, Inc.’s corporate safety director in October
- He alleged that he reported serious safety violations at Volmar’s construction site at 26 Federal Plaza in Manhattan during April and May
- He alleged that Volandes demoted him on June 2, 2019, and that Marinakis fired him on June 3,
- The defendants denied that he was fired and asserted that he gave two weeks’ notice and resigned.
Casmento sued under New York Labor Law § 215.1, alleging retaliation. The court later allowed him to amend the complaint to add claims under the New York State Human Rights Law and the New York City Human Rights Law, alleging that the defendants terminated him because of his actual or perceived visual impairment.
Defendants’ Arguments
The defendants moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is a ruling without a trial when there is no genuine dispute about a fact important to the case and the moving party is entitled to judgment under the law.
The defendants argued that Casmento had produced no evidence that his employment was terminated and that the undisputed facts showed he resigned. They also argued that he had not complied with New York Labor Law § 215(2)(b), which requires notice to the New York Attorney General. Finally, they argued that the Occupational Safety and Health Administration’s determination that Casmento voluntarily resigned should prevent him from pursuing his New York Labor Law claim under claim-preclusion or issue-preclusion principles. Claim preclusion can bar a later case involving the same claim, while issue preclusion can bar relitigation of an issue already decided after a full and fair opportunity to litigate.
Court’s Analysis
The court held that summary judgment was premature because discovery was not complete. Casmento submitted a declaration stating that he needed additional discovery, including depositions. The court also found a genuine dispute of material fact about whether he resigned or was terminated: the defendants submitted declarations and the OSHA letter supporting resignation, while Casmento submitted a declaration stating that his employment was terminated.
The court rejected the notice argument at the summary-judgment stage. Casmento submitted a declaration stating that he provided notice to the New York Attorney General at or before the action began and attached a February 28, 2020 notice letter enclosing the complaint.
The court also rejected the argument based on the OSHA investigation. Under the principles discussed by the court, an administrative decision can have preclusive effect only when the agency acted in an adjudicative, or court-like, capacity and the affected party had a full and fair opportunity to litigate. The court found that the OSHA investigation did not meet those requirements. It involved no hearing, administrative law judge, discovery, subpoena power, opportunity to confront witnesses, or similar court procedures. The investigator’s conclusion that Casmento voluntarily resigned was therefore not an adjudication that barred his claims.
The court further explained that Casmento was not required to file an OSHA complaint before bringing his New York Labor Law action, because the remedies arise under separate laws.
Disposition
The court denied the defendants’ motion for summary judgment. The Clerk of Court was directed to close the motion at Docket Number 39.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.