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January 9, 1979

Anthony MARCELLO, Plaintiff,
LONG ISLAND RAILROAD, R. K. Pattison, J. C. Valder and Robert Evans, Defendants

The opinion of the court was delivered by: GAGLIARDI

The plaintiff, Anthony Marcello, formerly a managerial employee of the Long Island Railroad ("LIRR"), commenced this action pursuant to 42 U.S.C. § 1983 against the LIRR, its former president, R. K. Pattison, and other LIRR employees, alleging a deprivation of his constitutional rights in connection with the termination of his employment. *fn1" Plaintiff seeks relief in the form of compensatory damages, back pay, and other lost benefits. *fn2" Defendants have filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons discussed below, the defendants' motion is granted.

Statement of Facts *fn3"

In July 1976, LIRR officials started to investigate the sale of miniature bottles of alcoholic beverages known as "liquor kits" by and to its employees. Robert Evans, the LIRR's Chief of Investigations, contacted the Port Authority Police Department (PAPD) after purchasing a liquor kit that bore the insignia "AA" from railroad employee, Joseph Nitolli. (SP 14). The PAPD subsequently advised Evans that the kit may have been stolen from American Airlines (Id.).

 On October 25, 1976, Evans and LIRR Superintendent of Transportation, Joseph Valder interviewed Nitolli in the presence of his attorney. Nitolli stated that he purchased liquor kits for resale from the plaintiff, a fellow railroad employee. Nitolli also named other employees who he believed were selling liquor kits (Id.). From October 27, 1976 to November 11, 1976, Evans interviewed the railroad employees that Nitolli mentioned and obtained statements from five of them, verifying that they were engaged in the sale of liquor kits. During this period, PAPD was in contact with Evans regarding the progress of his investigation and on November 12, 1976, Evans, accompanied by a PAPD detective, met with a representative of the Queens District Attorney's Office to discuss the case.

 On November 2, 1976, Evans summoned the plaintiff to appear before him, informed the plaintiff of the purpose of the hearing, and read him his constitutional rights (SP 3, Complaint P 8). At that time, plaintiff elected to make no statements and the meeting was adjourned so that plaintiff could confer with counsel (Id.). The following day, plaintiff again met with Evans and Valder in the presence of counsel. Plaintiff was advised that the entire matter had already been referred to the Queens County District Attorney's Office and that the plaintiff would be charged with conspiracy and possession of stolen goods. Upon advice of counsel, plaintiff again refused to make any statement (SP 7, Complaint P 9). At this point, one of the few factual disputes between the parties arises. Plaintiff alleges that ". . . Evans thereupon stated, in sum and substance, that the information sought from plaintiff would be obtained from plaintiff at plaintiff's disciplinary hearing wherein plaintiff would be "required' to answer the questions put to him upon penalty of dismissal for refusal to do so" (Complaint P 9). For the purpose of this motion only, the defendants have agreed to regard this allegation as true, "reserving the right to contest at trial what is alleged to have been said at the (November 3rd ) meeting . . . in the event defendants' motion is denied" (SP 7).

 On November 10, 1976, plaintiff was suspended from service from the LIRR pending a disciplinary hearing scheduled for November 29, 1976 (SP 3, Complaint P 8). He was advised that the charge upon which he would be tried was "conduct unbecoming an employee"; that he could be assisted by a "duly accredited representative of the Brotherhood of Railway Airline and Steamship Clerks" ("BRAC"); and that he would be permitted to summon and cross-examine witnesses (Id.).

 The disciplinary hearing began on November 29Th and concluded on December 1, 1976. The LIRR produced ten witnesses who testified that they purchased liquor kits from the plaintiff and/or from Nitolli (Tr. 13, 18, 22, 25, 28, 32, 40, 43, 47-8, 50-1). The trial officer reminded the plaintiff that he could summon and cross-examine witnesses (Id. at 8). Marcello, however, remained mute and refused to be represented by a member of BRAC because he claimed that he had a right to be represented by a lawyer particularly because LIRR officials had already referred the liquor kit matter to the Queens County District Attorney (Id. at 3, 6, 9). The plaintiff was never ordered by either the hearing officer or anyone else at the hearing to testify under penalty of automatic dismissal regarding his role in the liquor kit transactions (SP 15). The trial officer stated, however, that:

I must advise you at this time that if . . . (your position is to remain mute), this does not preclude the carrier from issuing discipline if, as the result of this trial, the charge which has been placed against you has been sustained.

 (Tr. P 9). At the end of the hearing, the trial officer again warned the plaintiff of the danger of not putting forth his case:

You stated that it was your desire to remain mute during these proceedings and not to answer any questions poased (sic) to you by the trial officer. Mr. Marcello, I wish to advise you at this time that if you persist in that position of remaining mute and refusing to answer questions that you are placing yourself in a very precarious position. I offer you the opportunity at this time to change that position if you so desire.

 (Id. at 58). Plaintiff continued to be silent. On December 13, 1976, plaintiff was discharged from employment with the LIRR for "conduct unbecoming an employee."

 The following day, the Queens County District Attorney presented the evidence developed at the disciplinary hearing to a grand jury. Many of the same witnesses who testified at the hearing also testified before the grand jury. For the purpose of this motion only, defendants agree that all of these witnesses testified with transactional immunity (SP 8B; Complaint P 16). The plaintiff, however, was not offered any form of immunity from criminal prosecution, and thus was not a witness before the grand jury (SP 17, 18). The grand jury returned a ten count felony indictment, against the plaintiff on December 16, 1976 charging grand larceny and criminal possession of stolen property (Id. at P 4). During the trial in Supreme Court, Queens County, plaintiff pleaded guilty to a single count of criminal possession of stolen property in the third degree (Id. at P 19). Plaintiff was subsequently sentenced to three years' probation (Id.).

 By letter of December 20, 1976, plaintiff appealed his dismissal from the LIRR to Valder (Id. at P 30). Valder advised plaintiff on February 7, 1977 that his appeal was denied (Id. at P 31). Plaintiff directed a further appeal to LIRR President, Pattison, who granted the appeal, but also issued a denial. Plaintiff was not permitted counsel at either of these appeals since his attorney was not a duly authorized representative of BRAC. BRAC subsequently filed a claim ...

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