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May 30, 1977

WAPPINGERS CENTRAL SCHOOL DISTRICT, PAUL ADAMS, Supervisor of Transportation, BRUCE REYNOLDS, Supervisor of Finance, all of the WAPPINGERS CENTRAL SCHOOL DISTRICT, individually and in their official capacities, Defendants

The opinion of the court was delivered by: DUFFY


 Defendants have moved, pursuant to Rule 12, F.R.Civ.P., to dismiss the amended complaint for lack of subject matter jurisdiction, failure to state a claim, and untimeliness. Although plaintiffs originally had cross-moved for summary judgment, they now have requested leave to withdraw this motion. Since the motion to dismiss will not dispose of the case, leave to withdraw the summary judgment motion is granted without prejudice to its renewal after the completion of discovery.

 The amended complaint seeks damages for racial discrimination and breach of contract in denying employment to plaintiff Charles Stewart. Stewart was employed by defendant Wappingers Central School District ("Wappingers") as a driver-cleaner of school buses. He secured this position in 1965, left in 1967, and returned in 1970, when he joined Teamsters Union Local # 445. In June 1970, he acquired seniority status. In August of that year, the Union and the School District entered into a collective bargaining agreement which governed Stewart's employment.

 In January 1971, Stewart asked defendant Paul Adams, the Transportation Supervisor at Wappingers and plaintiff's immediate superior, for a day off to observe the birthday of Reverend Dr. Martin Luther King, Jr. Adams denied this request; it was subsequently granted by the Superintendent of Wappingers. Plaintiff alleges, and such allegations will be taken as true for the purposes of this motion, see Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), that Adams' denial was accompanied by extreme anger and hostility, and that subsequently Adams and defendant Bruce Reynolds, Wappingers' Finance Supervisor, subjected Stewart to selective discriminatory treatment, harassment and verbal abuse.

 In September 1971, Stewart sustained a back injury in the course of his employment and was absent from work from October 1971 to January 1972. He requested reinstatement on January 17, 1972 in a capacity which would entail "light duties," but Adams denied this request, offering Stewart work similar to that formerly performed. For medical reasons, Stewart was unable to accept this offer. However, Stewart asserts that as a result of attrition and creation, light duty jobs became available, and were assigned to white driver-cleaners, some of whom had suffered non-job related injuries or who lacked the seniority accorded plaintiff.

 On July 9, 1973, Stewart filed a complaint with the New York State Division of Human Rights, alleging discrimination in defendants' employment practices and seeking reinstatement. Four days before the Division reached a no probable cause determination and dismissed the complaint, Stewart was rehired as a Stock Room Clerk for bus parts, a light duty position he held until April 1974. On February 21, 1974, the Division's decision was affirmed by the New York State Human Rights Appeal Board. No judicial review of this determination has been sought. Stewart contends that he never received a copy of the Board's decision.

 Stewart has alleged violations of his rights under 42 U.S.C. §§ 1981 and 1983 and under the Constitution of the United States, based jurisdictionally on 28 U.S.C. §§ 1343 and 1331, respectively; and has included a pendent state claim for breach of the collective bargaining agreement. Defendants contend that this Court lacks subject matter jurisdiction over the § 1981 claim since Stewart has failed to exhaust his federal administrative remedies, and over all the federal claims on the grounds that Wappingers and its employees, Adams and Reynolds, acting in their official capacities, are not subject to suit. Alternatively, they appear to argue that the state agency determination forecloses a § 1981 attack. Addressing plaintiffs' state claim, *fn1" they posit that retention of jurisdiction is inappropriate upon the failure of the federal claims; and that, in any event, the allegations of breach of contract fail to state a claim upon which relief can be granted. As a last resort, a charge of laches is proffered.

 Defendants correctly contend that any claim predicated on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. cannot succeed for failure of plaintiffs to initially pursue federal administrative relief. *fn2" However, by contrast, § 1981 was designed to afford a federal remedy for acts of discrimination separate and distinct from any relief available under Title VII; consequently, exhaustion is not required, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Gresham v. Chambers, 501 F.2d 687 (2d Cir. 1974).

 Whether defendants are suable entities is an issue properly addressed solely to the § 1983 claim. This section authorizes damage suits for violations of constitutional rights by "every person" acting under color of State law. A municipality has been held to be outside the definition of "person" for § 1983 purposes, City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), and in Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), the Second Circuit concluded that a Board of Education was similarly insulated from suit under § 1983. Monell additionally held that city officials named in the complaint were also without the scope of § 1983 since they were sued solely in their official capacities, thus necessitating a possible damage award payable by a city which was itself protected from suit.

 It is clear that under Monell the § 1983 claim against Wappingers must fail. As against the named defendants Adams and Reynolds, however, Monell does not control. The amended complaint expressly charges these defendants with liability not only in their official capacities, but also individually. A damage award, if any, based on individual liability, would be payable out of the named defendants' pockets and not the public till. Consequently, the action cannot be viewed as essentially and only one against the school district. See Gresham v. Chambers, supra, at 690.

 In examining the claims brought directly under the Constitution and under § 1981, analogy to § 1983 is unavailing. The distinctions from § 1983 in the legislative history and statutory language of § 1981, on the one hand, and in the jurisdictional requirements of and scope accorded the protection of rights by the Constitution, on the other, result in a broader grant of available remedies than that found under § 1983. These differences were fully explored in Skyers v. The Port Authority of New York and New Jersey, 431 F. Supp. 79 (S.D.N.Y. 1976), in which I ruled that a defendant protected from suit under § 1983 may nonetheless be subject to attack under both § 1981 and the Constitution. See also Campbell v. Gadsden County District School, 534 F.2d 650 (5th Cir. 1976). Thus, both the § 1981 and constitutional claims are cognizable against all defendants and subject matter jurisdiction exists with respect thereto.

 Defendants' motion to dismiss based on the contention that the § 1981 claim is foreclosed by the State agency determination is essentially a request for summary judgment under Rules 12(c) and 56, F.R.Civ.P. and will be treated as such. Whether an administrative finding of no probable cause with respect to a charge of discriminatory treatment has a res judicata effect barring a subsequent § 1981 action was left open in Mitchell v. National Broadcasting Co., 553 F.2d 265, slip op. 2715 (2d Cir. 1977). In Mitchell, the plaintiff filed a charge of discrimination with the New York State Division of Human Rights, which dismissed the complaint on the ground of lack of probable cause. This decision was affirmed by the State Human Rights Appeal Board. While the appeal was pending, charges were filed with the Equal Employment Opportunity Commission ("EEOC"), which issued a finding of no probable cause approximately one year later. In the meantime, plaintiff sought review of the Appeal Board's order in the Appellate Division of the New York State Supreme Court, which affirmed the ruling. Approximately one year following the State court proceedings, and nine months after the issuance of the EEOC findings, plaintiff commenced a § 1981 suit in federal court. The Second Circuit affirmed the district court dismissal of the complaint on the grounds of res judicata. In considering the question, the Court of Appeals recognized the similarity of the issues presented, but stressed plaintiff's pursuit of judicial review of the State agency ruling and the finality accorded the Appellate Division's determination by New York courts, and indicated that the fact of judicial review was crucial to the result obtained.

Had the appellant brought her § 1981 claim without resorting to judicial review of the state agency's determination, a number of considerations would weigh against barring the federal action on res judicata grounds, including the undesirability of allowing the deferral of a Title VII claim to the state agency to foreclose a § 1981 action and the usefulness of having state administrative agencies attempt conciliation of discrimination claims prior to filing an action in federal ...

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