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May 16, 1980

CHARLES STEWART and CAROLYN C. STEWART, Plaintiffs, against WAPPINGERS CENTRAL SCHOOL DISTRICT, PAUL ADAMS, Supervisor of Transportation, BRUCE REYNOLDS, Supervisor of Finance, all of the WAPPINGER'S CENTRAL SCHOOL DISTRICT, Individually, and in their official capacities, Defendants.

The opinion of the court was delivered by: DUFFY

Plaintiffs, Charles Stewart and his wife Carolyn, commenced this action in 1976 against Paul Adams and Bruce Reynolds, both individually and in their official capacities as the Supervisors of Transportation and Finance, respectively, for the Wappingers Central School District. In 1977, plaintiffs filed an amended complaint in which they added the Wappingers School District, a municipal corporation, as a co-defendant.

The complaint, as amended, charges that Charles Stewart, a former employee of the Wappingers School District, was denied employment by the defendants solely on the basis of his race. Plaintiffs conclude that such racial discrimination is constitutionally impermissible and violative of sections 1981 and 1983 of the Civil Rights Act. 42 U.S.C. §§ 1981, 1983. In addition, plaintiffs allege that defendants' refusal to employ Charles Stewart was a violation of a collective bargaining agreement to which Mr. Stewart, as a Union member, was a party.

In May of 1977, the defendants moved, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the amended complaint. The crux of the motion was that the defendants, a municipal corporation and two of its employees, were not subject to suit under the Civil Rights Act.

 In an opinion dated May 30, 1977, 437 F. Supp. 250, I found that all defendants were proper parties to a civil rights action based upon § 1981 of the Civil Rights Act. However, I did conclude, based upon the Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and this Circuit's decision in Monell v. Dept. of Social Services, 532 F.2d 259 (2d Cir. 1976), that the Wappingers School District was not a suable entity under § 1983 and accordingly dismissed that claim. No appeal of this decision was taken by the plaintiffs.

 The Monell decision was subsequently appealed to the Supreme Court which found that municipalities were "persons" within the purview of § 1983 and as such were suable entities. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

 Thus, in light of Monell, plaintiffs' § 1983 claim against the Wappingers School District was sufficient to withstand defendants' motion to dismiss and must therefore be reinstated. I hereby amend my prior opinion to reflect this result.

 A three-day trial was held before me which concluded on December 5, 1979. Thereafter, the parties were afforded an opportunity to submit post-trial memoranda. Based upon the evidence received and the testimony elicited at the trial, together with the post-trial submissions of the parties, the following shall constitute my findings of fact and conclusions of law.

 I turn initially to review those facts which are not in dispute. Plaintiffs, Charles and Carolyn Stewart, are husband and wife and presently reside in Orange County, New York. Mr. Stewart first applied for a position with the Wappingers School District in 1965. He was hired by John Delano as a full-time driver-cleaner. During the school year, Stewart's duties included the transportation of school children in the district. In the summer months, when school was not in session, Stewart was assigned custodial duties at one of the district's schools.

 In 1967, Stewart voluntarily left the Wappingers School District to pursue other employment opportunities. Thereafter, in February 1970, apparently dissatisfied with his employment, he reapplied for a position in the Wappingers District and was again hired as a driver-cleaner by the transportation department. This time, however, Stewart was hired by the defendant Paul Adams.

 After his re-employment by the Wappingers School District, Stewart became a member of Teamster's Local 445. By virtue of his membership in Local 445, Stewart was covered by the collective bargaining agreement then in effect between the Union and the school district. This agreement included the following provisions:

Seniority shall prevail, except as limited by Article X hereof, in that the employer recognizes the general principle that senior employees shall have preferences of employment and promotional opportunity for non-competitive jobs and to chose their shifts and to work at the job for which the pay is highest, provided such employees are qualified for such work.

 The agreement further provided in Article X:

An employee in one job classification or division of the system may be used in another job classification or division only if no work opportunities are lost by men normally performing work in that job classification or division to which he is transferred. Transfers within the same job category will be permitted only at the option of the District.
An employee assigned work out of his regular job classification shall not be responsible for damage caused as a result of his lack of knowledge in performing the assigned duties, provided such damage does not result from a willful destructive act.

 Plaintiffs' Exhibits 1 and 2.

 In January, 1971, Stewart talked with his immediate supervisor, Paul Adams, requesting that he, Stewart, be granted a holiday on January 15th to observe Martin Luther King's birthday. Apparently, the teaching personnel were given that day off in honor of Dr. King. However, Mr. Adams initially denied Stewart's request since the district had previously decided not to grant non-teaching personnel that day off.

 Undaunted by this initial refusal, Stewart approached Mr. Joseph Kegan, now deceased, who was the Superintendent for the Wappingers District. Mr. Kegan granted Stewart's request and, in addition, instructed him to circulate a petition in order to ascertain whether any other non-teaching personnel wished to observe Dr. King's birthday.

 The petition, dated January 8, 1971, was circulated and read as follows:

To Whom it May Concern:
We the undersigned request approved personal day, January 15, 1971, in memory of Dr. Martin Luther King, Jr.

 See Plaintiffs' Exhibit 3.

 Under this statement were the names of some 120 non-teaching personnel. At the end of this four page petition the following inscription appeared:

"Aproved (sic) personal or emergency day.
Article XV
/s/ E. Joseph Kegan"

 After the petition was circulated and four pages of signatures obtained, Stewart, pursuant to the instructions of Joseph Kegan, returned it to Paul Adams. However, despite Mr. Kegan's instruction that all those who signed the petition were entitled to take January 15th as either a personal or emergency day, only those who had not exhausted their quota of emergency days for the year were paid for the 15th. Thus, Adams, apparently still displeased with Kegan's instructions, did not authorize payment for at least those individuals under his authority in the transportation department who took January 15th as a personal day.

 Mr. Stewart took January 15th as a holiday and was compensated.

 At this juncture the facts are largely in dispute.

 Plaintiffs' Contentions :

 Charles Stewart testified that when the dispute arose with respect to those non-teaching personnel entitled to compensation for January 15th, Adams referred all those questioning the district's decision to Stewart. Adams further indicated ...

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