Opposition Brief — Caf Dowlah, Petitioner v. American Arbitration Association, et al.

No. 24-128

IN THE

Supreme Court of the United States

>>>>

CAF DOWLAH,

Petitioner,

v.

AMERICAN ARBITRATION ASSOCIATION (AAA),

CITY UNIVERSITY OF NEW YORK (CUNY),

PROFESSIONAL STAFF CONGRESS (PSC-CUNY),

and DEBORAH GAINES,

Respondents.

On Petition for a Writ of Certiorari to

the United States Supreme Court

for State of New York Court of Appeals

BRIEF FOR RESPONDENT

DEBORAH GAINES

September 4, 2024

Adonaid C. Medina

Counsel of Record

BARKER PATTERSON NICHOLS, LLP

Attorneys for Respondent

Deborah Gaines

115 East Stevens Avenue, Suite 206

Valhalla, New York 10595

914-495-4805

a.medina@bpn.law

(212) 719-0990

appeals@phpny.com

i

QUESTIONS PRESENTED

1.

Whether the Petitioner has set forth any basis

for a grant of Writ of Certiorari, where the entire action has no merit in law or fact, and no

showing has been made to establish that the

issues raised are of public importance sufficient to warrant review of this Court.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........................

i

TABLE OF AUTHORITIES ...........................

ii

INTRODUCTION ..........................................

1

STATEMENT OF THE CASE ........................

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......................

7

ARGUMENT ..................................................

7

THERE IS NO BASIS UPON

WHICH TO GRANT WRIT

OF CERTIORARI ...............................

7

A, There is No Conflict Between

Any Provision of the Federal

Arbitration Act and this Court’s

Precedent, and New York State

Arbitral Immunity .......................

8

B. There is No Basis for this

Court’s Review of the State

Court’s Application of State

based Doctrines Res Judicata

and Collateral Estoppel ...............

13

CONCLUSION ...............................................

15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bernhardt v. Polygraphic Co. of America,

350 U.S. 198 (1956) ...................................

9

Board of Managers of Windridge Condos. One

v. Horn,

234 A.D.2d 249 (2d Dept. 1996) ................

14

Braxton v. United States,

500 U.S. 344 (1991) ...................................

8

Butz v. Economou,

438 U.S. 478 (1978) ...................................

12

Citizens Bank v. Alafabco, Inc.,

539 US 52, 123 S Ct 2037,

156 L Ed 2d 46 (2003) ...............................

9

Corbin v. Washington Fire & Marine Ins. Co.,

278 F.Supp. 393 (D.S.C. 1968) ..................

10

Corey v. New York Stock Exchange,

493 F.Supp.51 (W.D. Michigan 1980) ....... 10, 12

Corey v. New York Stock Exchange,

691 F.2d 1205 (6th Cir. 1982) ...................

12

Dowlah v. Am.Arbitration Ass’n,

41 N.Y.3d 910 (2024) ................................

7

Dowlah v. American Arbitration Assn.,

221 A.D.3d 426 (1st Dept. 2023) ...............

6

iv

Page(s)

Highland HC, LLC v. Scott,

113 AD3d 590 (2014) .................................

9

Hill v. Aro Corp.,

263 F.Supp. 324 (N.D. Ohio 1967) ............

10

Jacobs v. Mostow,

69 A.D.3d 575 (2d Dept. 2010) ..................

9

Lucky Brand Dungarees, Inc. v.

Marcel Fashions Grp, Inc.,

590 U.S. 405 (2020) ................................... 13, 14

Matter of Dowlah v. City Univ. of N.Y.,

189 A.D.3d 533 (1st Dept. 2020) ...............

5

N.J.R. Assoc. v. Tausend,

19 N.Y.2d 597 (2012) ................................

9

Nationwide Mut. Ins. Co. v.

U.S. Underwriters Ins. Co.,

151 A.D.3d 504 (1st Dept. 2017) ...............

14

O’Brien v. City of Syracuse,

54 N.Y.2d 353 (1981) ................................

14

Perry v. Thomas,

482 U.S. 483 (19987) .................................

9

Raitport v. Provident National Bank,

451 F.Supp. 522 (E.D.Pa. 1978) ................

11

Rhine v. Union Carbide Corp.,

343 F.2d 12 (6th Cir. 1965) .......................

10

v

Page(s)

Rice v. Sioux City Memorial Park Cemetery,

75 S. Ct. 614 (1954)...................................

8

Tamari v. Conrad,

552 F.2d 778 (7th Cir. 1977) .....................

11

United Steelworkers v.

American Manufacturing Co.,

363 U.S. 564, 80 S. Ct. 1343,

4 L. Ed. 2d 1403 (1960) .............................

10

United Steelworkers v. Enterprise Wheel

& Car Corp.,

363 U.S. 593, 4 L. Ed. 2d 1424,

80 S. Ct. 1358 (1960) .................................

10

United Steelworkers v. Warrior & Gulf

Navigation Co.,

363 U.S. 574, 4 L. Ed. 2d 1409,

80 S. Ct. 1347 (1960) .................................

10

Statutes

9 U.S.C. §§ 2, 3, 4 ...........................................

10

9 U.S.C. §§ 9, 10 .............................................

11

Federal Arbitration Act .................................

11

New York Civil Practice Law and Rules

Article 75 ..................................................

4, 5

Article 78 ..................................................

1

vi

Page(s)

Rules

Rule 10 ...........................................................

7, 8

1

INTRODUCTION

Respondent Deborah Gaines (hereinafter “Arbitrator Gaines”) submits this brief in opposition to

the Petition for Writ of Certiorari, initiated by

Petitioner Caf Dowlah (hereinafter “Petitioner”).

This matter stems from an arbitration award, dated March 7, 2019, that followed an arbitration

proceeding addressing a dispute between the Petitioner, Caf Dowlah, and his former employer,

defendant-respondent the City University of

New York (hereinafter “CUNY”). Respondent herein, Arbitrator Deborah Gaines (hereinafter “Arbitrator Gaines”) is an arbitrator with the American

Arbitration Association, who presided over the arbitration proceedings that resulted from CUNY’s

termination of Petitioner’s employment, pursuant

to a Collective Bargaining Agreement (hereinafter

the “CAB”).

Following the arbitration hearings, wherein Petitioner was represented by counsel who presented

evidence in support of Petitioner’s position, Arbitrator Gaines issued the arbitration award at issue

on March 7, 2019, finding that CUNY had just

cause for its termination of Petitioner’s employment.

Petitioner challenged the arbitration award, via a

Petition pursuant to Article 78 of the New York

Civil Practice Law and Rules, asserting claims

against Arbitrator Gaines, arguing that Arbitrator

Gaines’ decision as arbitrary and irrational. The

Petition was denied and Arbitrator Gaines’ motion

to dismiss the Petition was granted. Petitioner

2

commenced the within action, repeating his challenges to Arbitrator Gaines’ determination, and the

State of New York Supreme Court found that the

within action was barred by the doctrines of Res

Judicata and collateral estoppel, and in any event,

the claims against Arbitrator Gaines are barred

by the arbitral immunity doctrine. The Supreme

Court’s decision was affirmed by the New York

State Court’s Appellate Division, and leave to

appeal to the New York State Court of Appeals,

New York State’s highest court, was denied.

As is clear even from the issues articulated in Petitioner’s papers, there is no legal question presented that warrants this Court’s review.

Petitioner has articulated no grounds upon which

this Court should grant Writ of Certiorari to review

the New York State Court’s dismissal of Petitioner’s claims.

STATEMENT OF THE CASE

This matter has its genesis on arbitration proceedings held in February 2019. At issue in the

proceedings was Petitioner’s employment. Petitioner had been an Assistant Professor of Economics

at the Department of Social Sciences of Queensborough Community College (hereinafter “QCC”), a

college part of CUNY. In 2009, Petitioner was promoted to Associate Professor. In or about 2014,

Petitioner applied for a promotion to full professor,

but his application was denied in July 2014. Petitioner grieved the denial of the promotion.

3

During the arbitration proceedings, it was

demonstrated that Petitioner engaged in multiple

unprofessional and inappropriate communications

throughout a period of several years, including

statements and emails that were considered

threatening to his colleagues. This included a

berating email sent by Petitioner to CUNY’s thenInterim Acting Vice President, in September 2016.

Petitioner grieved that suspension, resulting in

an arbitration with a non-party arbitrator, Arbitrator Biren, who determined that there was just

cause for the disciplinary action. The penalty was

reduced to a written reprimand, under the principles of progressive discipline. As a result of that

disciplinary action, Petitioner received a warning

from the President of QCC that any additional incidents of failure to maintain proper communications with other members of the college community

would lead to further discipline. Despite this warning, Petitioner continued with disparaging emails

and communications to members of the college

community.

Petitioner was denied full professorship, resulting in an agreement between CUNY and Petitioner’s union, Professional Staff Congress (“PCS”), to

be reconsidered for full professorship by a select

faculty committee. A faculty committee of three

CUNY professors was formed to review Petitioner’s

candidacy. In May 23, 2018, the faculty committee

voted against recommending Petitioner for the

promotion. Petitioner responded to the decision by

4

the select faculty committee by sending a threatening email to all three members.

Following the threatening email and the recipients’ concerns for their safety, CUNY initiated disciplinary charges against Petitioner and ultimately

terminated Petitioner’s employment. Petitioner

appealed the termination and the issue was submitted to arbitration, pursuant to the collective

bargaining agreement (CBA) between CUNY and

PSC. Petitioner, represented by counsel, and

CUNY jointly selected Arbitrator Gaines to preside

over the proceeding.

An arbitration hearing was held on February 28,

2019, during which Petitioner was represented by

counsel. Arbitrator Gaines issued the arbitration

award on March 7, 2019, finding that CUNY had

just cause to terminate Petitioner’s employment.

Petitioner challenged the arbitration award via a

Petition pursuant to Article 75 of the New York

Civil Practice Law and Rules, in Supreme Court,

New York County (Index No. 653101/2019), seeking

an order (a) vacating the arbitration award; (b)

finding that Arbitrator Gaines exceeded her authority as an arbitrator; (c) finding that Arbitrator

Gaines violated strong public policy favoring the

retention of teachers despite incidents of misconduct. The Article 75 Petition claimed that Arbitrator Gaines’ arbitration award was irrational,

arbitrary, excessive and shocking to a sense of fairness, and excessive in its penalty. Petitioner also

argued that the arbitration award was issued as a

5

result of fraud, that Arbitrator Gaines exceeded

her authority, and that the award violated public

policy.

In a Decision and Order dated September 10,

2019, the State Supreme Court of the State of

New York, New York County, dismissed the Article

75 Petition, finding that Arbitrator Gaines’ findings and determination were warranted, and that

the decision was deliberative, comprehensive, wellreasoned, and supported by the record.

Petitioner appealed the September 10, 2019

Decision and Order, to the New York State intermediate appellate court, the Appellate Division,

First Department. The Appellate Division found

that Arbitrator Gaines’ findings were supported by

the record, and not arbitrary, capricious or irrational. Matter of Dowlah v. City Univ. of N.Y., 189

A.D.3d 533 (1st Dept. 2020). The Appellate Division further found that “[t]he record also reveals

that petitioner received due process in that he was

represented by counsel at the hearing and it had

the opportunity to call and cross-examine witnesses, present documentary evidence and make arguments. His assertion that the arbitrator was biased

against him was not supported by any evidence in

the record.” Matter of Dowlah, at 534-535.

Acting pro se, Petitioner initiated the within action also in New York State Supreme Court, again

challenging the arbitration award. In a Decision

and Order dated December 21, 2022, the Supreme

Court, New York County, held that Arbitrator

6

Gaines acted within the scope of the arbitral process when she presided over this issue. The court

went on to find that the claims against Arbitrator

Gaines must be dismissed with prejudice, as she

was entitled to absolute immunity from liability for

acts committed in her capacity as an arbitrator.

Petitioner appealed from the Decision and Order

entered December 21, 2022 to the New York State

intermediate appellate court, the Appellate Division, First Department. In a Decision and Order

entered November 9, 2023 Decision, the Appellate

Division agreed with the trial court’s finding that

the claims against Arbitrator Gaines were barred

by the doctrines of res judicata of collateral estoppel. Dowlah v. American Arbitration Assn., 221

A.D.3d 426 (1st Dept. 2023). The Appellate Division agreed that the prior action and appeal also

sought to set aside the arbitration award, based

upon the arguments that the arbitration proceedings were improper and that the findings of Arbitrator Gaines were allegedly unsupported by the

record, and thus arbitrary and capricious.

Petitioner then proceeded to seek leave to appeal

from the State’s highest Court, the New York Court

of Appeals. Petitioner argued that the Appellate

Division failed to recognize his allegations of judicial misconduct on the part of the justices ruling

below; that the lower courts misapplied the doctrines of Res Judicata and collateral estoppel; and

that the lower courts improperly applied Arbitral

Immunity.

7

Leave to appeal to the State of New York Court

of Appeals was denied. Dowlah v. Am.Arbitration

Ass’n, 41 N.Y.3d 910 (2024).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

There are no constitutional provisions that apply

to this matter involving state-based claims as it

pertains to the claims against Arbitrator Gaines.

ARGUMENT

THERE IS NO BASIS UPON WHICH

TO GRANT WRIT OF CERTIORARI

Pursuant to Rule 10 of this Court, whether to

grant Writ of Certiorari is a matter of Court discretion. Among the factors to be considered in making

a determination of whether to grant Writ of

Certiorari are: (a) whether the underlying Court of

Appeals’ decision is in conflict with other circuit

Court of Appeals on an important matter; (b) a

state court of last resort has decided an important

federal question in a way that conflicts with the decision of another state court of last resort or of a

United States court of appeals; (c) a state court or a

United States court of appeals has decided an important question of federal law that has not been,

but should be, settled by this Court, or has decided

an important federal question in a way that conflicts with relevant decisions of this Court.

8

In fact, this Court has held that a principal purpose for which certiorari jurisdiction is used by this

Court is to resolve conflicts among the United

States Courts of Appeals, and that of state courts.

Braxton v. United States, 500 U.S. 344 (1991).

Moreover, Certiorari is not granted unless the matter involves principles that are of public importance. Rice v. Sioux City Memorial Park

Cemetery, 75 S. Ct. 614 (1954).

The Petition here does not meet this Court’s criteria for consideration governing review on Certiorari, as required by Court Rule 10. No aspect of the

issues involved in this matter are in the character

of the reasons the Court considers in granting petitions for Writ of Certiorari.

A. There is No Conflict Between Any Provision of the Federal Arbitration Act and

this Court’s Precedent, and New York

State Arbitral Immunity

Petitioner argues that the New York State

Courts misinterpreted and misapplied the doctrine

of arbitral immunity, resulting in absolute immunity to Arbitrator Gaines, and that there is a conflict

between eh Federal Arbitration Act and the statebased arbitral immunity.

Petitioner fails to recognize that the Federal Arbitration Act is inapplicable to the issues in this

matter. This matter involves solely state-based

claims. The Federal Arbitration Act preempts state

statutes as to transactions affecting interstate

9

commerce. Highland HC, LLC v. Scott, 113 AD3d

590, 592-593 (2014); Citizens Bank v. Alafabco,

Inc., 539 US 52, 56, 123 S Ct 2037, 156 L Ed 2d 46

(2003); Perry v. Thomas, 482 U.S. 483 (19987);

N.J.R. Assoc. v. Tausend, 19 N.Y.2d 597 (2012).

Here, there is no allegation that any transaction

at issue involved interstate commerce. This matter

arises out of an arbitration clause within the CBA,

in which Petitioner agreed to submit disputes arising out of his employment with CUNY to arbitration within the State of New York. The employment

at issue was entered into within the State of

New York. Petitioner has confirmed in his papers

that is a resident of New York State. The employment that gives rise to the claims was with a

New York State entity, CUNY. Petitioner has not

presented any aspect of his employment contract

which was to be performed outside of New York

State, or which involved interstate commerce. See,

e.g., Bernhardt v. Polygraphic Co. of America, 350

U.S. 198 (1956).

As such, the New York State doctrine of arbitral

immunity was properly applied, (see, e.g. Jacobs v.

Mostow, 69 A.D.3d 575 (2d Dept. 2010). The Federal Arbitration Act does not preempt New York

Court’s application of arbitral immunity. But, in

any event, New York State’s application of the doctrine of arbitral immunity is consistent with the

Federal Arbitration Act and the Federal Courts’

application of the doctrine. In discussing the public

policy behind the application of the arbitral im-

10

munity, the Sixth Circuit Court of Appeals found as

follows:

As with judicial and quasi-judicial immunity, arbitral immunity is essential to

protect the decision-maker from undue influence and protect the decision-making

process from reprisals by dissatisfied litigants. Federal policy, as manifested in the

Arbitration Act and case law, favors final

adjudication of differences by a means selected by the parties. See 9 U.S.C. §§ 2, 3,

4; United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343,

4 L. Ed. 2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363

U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347

(1960); United Steelworkers v. Enterprise

Wheel & Car Corp., 363 U.S. 593, 4 L. Ed.

2d 1424, 80 S. Ct. 1358 (1960); Rhine v.

Union Carbide Corp., 343 F.2d 12, 16 (6th

Cir. 1965) (labor arbitration). Accord, Corey v. New York Stock Exchange, 493

F.Supp.51 (W.D. Michigan 1980);, supra,

56; I. & F supra, 150. Because federal policy encourages arbitration and arbitrators

are essential actors in furtherance of that

policy, it is appropriate that immunity be

extended to arbitrators for acts within the

scope of their duties and within their

jurisdiction. Corbin v. Washington Fire &

Marine Ins. Co., 278 F.Supp. 393, 396-397

(D.S.C. 1968),; Hill v. Aro Corp., 263

11

F.Supp. 324, 326 (N.D. Ohio 1967). The extension of immunity to arbitrators where

arbitration is pursuant to a private agreement between the parties is especially

compelling because arbitration is the

means selected by the parties themselves

for disposing of controversies between

them. By immunizing arbitrators and their

decisions from collateral attacks, arbitration as the contractual choice of the parties

is respected yet the arbitrators are protected. Arbitrators have no interest in the outcome of the dispute and should not be

compelled to become parties to that dispute. Tamari v. Conrad, 552 F.2d 778, 780

(7th Cir. 1977). ‘Individuals cannot be expected to volunteer to arbitrate disputes

if they can be caught up in the struggle

between the litigants and saddled with the

burdens of defending a lawsuit.’ Tamari,

supra, 781. Accord, Raitport v. Provident

National Bank, 451 F.Supp. 522, 527

(E.D.Pa. 1978).. An aggrieved party alleging a due process violation in the conduct

of the proceedings, fraud, misconduct, a

violation of public policy, lack of jurisdiction, etc., by arbitrators should pursue

remedies against the “real” adversary

through the appeal process. To allow a collateral attack against arbitrators and their

judgments would also emasculate the appeal provisions of the federal Arbitration

Act. 9 U.S.C. §§ 9, 10. For these reasons we

12

believe that arbitral immunity is essential

to the maintenance of arbitration by contractual agreement as a viable alternative

to the judicial process for the settlement of

controversies and must be applied in this

case.

Corey v. New York Stock Exchange, 691 F.2d 1205,

1211 (6th Cir. 1982).

The New York State courts’ finding that the doctrine of arbitral immunity shields Arbitrator

Gaines from the claims asserted is squarely within

the New York State and Federal Courts’ application of the immunity, and consistent with the underlying policy considerations. Corey v. New York

Stock Exchange, supra.

Petitioner’s citation to Butz v. Economou, 438

U.S. 478 (1978) is misguided, at best. Butz v. Economou, supra, involved the issue of whether federal

officials in the executive branch enjoyed personal

absolute versus qualified immunity from claims

arising from their alleged violations of citizen’s

constitutional rights. No federal officials were involved in the arbitration proceedings at issue here.

In any event, in Butz, supra, this Court held that

the federal officials were entitled to arbitral immunity.

To the extent Petitioner seems to argue that the

arbitration clause within the CBA was unconscionable, such argument is inapplicable to Arbitrator

Gaines, who has no involvement in the drafting of

the CBA, nor Petitioner’s participation in same.

13

Petitioner has not presented a legal question that

warrants review from this Court with respect to

the New York State Court’s finding that the arbitral immunity shielded Arbitrator Gaines from Petitioner’s claims.

B. There is No Basis for this Court’s Review

of the State Court’s Application of Statebased Doctrines Res Judicata and Collateral Estoppel

Petitioner has not presented any basis upon

which this Court should review the New York State

Court’s application of the doctrines of res judicata

and collateral estoppel. Petitioner does not argue

that the underlying decisions were not consistent

with the proper application of these doctrines.

Rather, Petitioner’s intends to ask this Court to

“revisit” the doctrines of res judicata and collateral

estoppel because it may result in adverse consequences.

Petitioner does not present any conflict between

the New York State Court’s application of these

doctrines and the Federal Courts’ precedent.

Petitioner relies on Lucky Brand Dungarees, Inc.

v. Marcel Fashions Grp, Inc., 590 U.S. 405 (2020),

apparently for the proposition that a subsequent

action is not barred under issue preclusion doctrines where the two litigations challenge different

conduct and raised different claims. However, Petitioner’s interpretation of Lucky, supra, overlooks

the fact that the matter involved different trade-

14

marks, different legal theories, and different conduct occurring at different times. This Court found

that the case law does not support preclusion

where the two actions at issue lacked a common

nucleus of operating facts. Lucky, supra, at 406.

Here, Petitioner’s first action and current action

both arise out of the single arbitration proceeding

held in February 2019, and both share a common

nucleus of operating facts. Lucky, supra, at 406.

The State Court’s findings were consistent with

New York precedent. For instance, the New York

State Court of Appeals held in O’Brien v. City of

Syracuse, 54 N.Y.2d 353, 357 (1981), that all claims

arising out of the same transaction or series of

transactions are barred, even if based upon different theories or if seeking a different remedy. Similarly, New York maintains that res judicata applies

to preclude issues that were raised, as well as

issues that could have or should have been raised

in the prior proceeding. Nationwide Mut. Ins. Co. v.

U.S. Underwriters Ins. Co., 151 A.D.3d 504 (1st

Dept. 2017); Board of Managers of Windridge Condos. One v. Horn, 234 A.D.2d 249 (2d Dept. 1996).

The Petitioner has not put forth any basis upon

which this Court should review the application of

the doctrines of res judicata and collateral estoppel.

Therefore, to the extent Petitioner seeks that this

Court overturn long-established principles of issue

preclusion, in the form of res judicata or collateral

estoppel, Petitioner has not presented any basis

for such a proposition. The application of issue preclusion doctrines by the State Courts was con-

15

sistent with well-settled jurisprudence throughout

New York State courts.

CONCLUSION

It is respectfully submitted that, for the

aforementioned reasons, the petition for Writ of

Certiorari should be denied.

Dated: Valhalla, New York

September 4, 2024

Respectfully Submitted,

_________________________________

Adonaid C. Medina

Counsel of Record

BARKER PATTERSON NICHOLS, LLP

Attorneys for Respondent

Deborah Gaines

115 East Stevens Avenue, Suite 206

Valhalla, New York 10595

914-495-4805