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August 16, 1985


The opinion of the court was delivered by: KRAM



 This action was commenced on or about September 28, 1982, by the filing of a complaint alleging that plaintiff's employer had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") by discriminating against him with respect to his race and by retaliating against him for filing a prior race discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC"). The case was tried by the Court on January 9, 1984. At the close of trial, the parties were requested to submit post-trial briefs. Defendant submitted its post-trial brief on April 16, 1984. Despite repeated efforts to reach counsel for the plaintiff, both telephonically and in writing, to ascertain the status of plaintiff's post-trial brief, the Court was unable to obtain any information from plaintiff's counsel. Plaintiff's counsel did not file a post-trial brief on his client's behalf. On March 7, 1985, plaintiff submitted a post-trial brief, pro se.

 The case is now before the Court for a determination on the merits of this action. The following constitutes the Court's findings of facts and conclusions of law pursuant to Fed. R. Civ. P. 52(a).


 Plaintiff is currently employed by the New York State Department of Correctional Services ("DOCS") as a correction officer ("C.O."). He was first hired by DOCS in October, 1978, to serve as a C.O. at the Otisville Correctional Facility.

 On November 1, 1979, the State of New York imposed "a complete freeze on all hiring" for "all permanent and temporary positions." (Plaintiff's Exhibit 6.) The superintendents of the state correctional facilities were advised of this hiring freeze on or about November 14, 1979, by memo from the central office of DOCS, budget unit. (Plaintiff's Exhibit 7.) In accordance with that memo, the superintendent of "any facility experiencing individual position problems [was] to contact the central office budget unit for assistance." (Id.)

 On December 5, 1979, the plaintiff resigned his position as C.O. "effective immediately." (Defendant's Exhibit A.) In his letter of resignation, plaintiff asserted that he had been the victim of "constant undue pressure, [h]arrassment and [i]ntimidation" from his immediate superiors. (Id.)

 On December 11, 1979, Mr. Pendleton filed a complaint against DOCS with the New York State Division of Human Rights ("NYSDHR") alleging racial discrimination. (Plaintiff's Exhibit 1.) In his complaint, Mr. Pendleton alleged that his superiors had continually harassed him and denied him equal terms and conditions of employment based on his race. (Id., PP 4, 6.) Mr. Pendleton checked the box on the complaint form requesting the NYSDHR to accept the filing of his complaint on behalf of the EEOC as well, claiming the alleged discrimination violated Title VII.

 Sometime in January, 1980, DOCS requested special approval to hire more correction officers to fill specific needs at certain of its facilities. (Tr. 40.) On or about February 6, 1980, DOCS obtained such approval to hire eighteen correction officers. (Tr. 29-30, 40.) DOCS then hired eighteen new people to fill those positions who reported to work on or about February 21st. (Tr. 29-30, 34.)

 On February 7, 1980, a conciliation conference was held at Otisville Correctional Facility to investigate and attempt to conciliate the complaint that plaintiff had filed with the NYSDHR. The conference was attended by plaintiff, Sheila Ortega (NYSDHR investigator), Al Young and Ellen Faucette (representatives of the Affirmative Action Office of DOCS), Philip Coombe (Superintendent of Otisville Correctional Facility), and the correction officers named in Mr. Pendleton's complaint. (Tr. 6, 15-16.) During that conference, a conciliation agreement was reached. The precise parameters of that agreement are very much in dispute; in essence, however, it was agreed that Mr. Pendleton would withdraw his complaint with the NYSDHR in return for reinstatement by DOCS. (Tr. 6-8, 16-19, 43, 48; Stipulated Fact J, Pretrial Order filed January 4, 1984.) Mr. Pendleton did withdraw his complaint by letter written at the conference (Defendant's Exhibit B), and requested in writing reinstatement as a C.O. at Otisville (Plaintiff's Exhibit 5).

 At the conference there was some discussion of the date Mr. Pendleton would or could be reinstated. Apparently, Superintendent Coombe said something like "If it were up to me, I'd reinstate you tomorrow; but it's not up to me, it's up to the people in Albany." (Tr. 17-18, 48.) Coombe further indicated that he felt Mr. Pendleton was one of his best C.O.'s, and that he would like to have him back on his staff. (Tr. 16.) Mr. Pendleton indicated that he could be ready to start work again on February 13th. (Tr. 7, 9; Plaintiff's Exhibit 5.) Mr. Pendleton left the conference believing that DOCS had agreed to reinstate him, and that he would be reinstated, on February 13th. (Tr. 8.) Ms. Ortega also believed that Mr. Pendleton would be reinstated on that day. (Tr. 19.)

 On February 13, 1980, the NYSDHR officially ordered Mr. Pendleton's complaint withdrawn pursuant to the letter he had written at the conciliation conference. (Plaintiff's Exhibit 3.) Also on that day, Mr. Pendleton was not reinstated. When he was not reinstated, Mr. Pendleton called Superintendent Coombe to find out why he had not yet been reinstated. (Tr. 10.) It was then that he was advised of the hiring freeze. (Id.)

 Mr Pendleton then called Ms. Ortega to complaint that he had not yet been reinstated. (Tr. 21.) Ms. Ortega called Superintendent Coombe to find out why mr. Pendleton had not been reinstated, and was advised by Superintendent Coombe of the statewide job freeze. (Id.) Ms. Ortega then called Dr. Allen Bush, head of the Affirmative Action program for DOCS, who verified that a job freeze had been imposed. (Id.) Thereafter, Ms. Ortega attempted to explain to Mr. Pendleton that he had not been reinstated because of the job freeze. (Tr. 20.) Mr. Pendleton indicated that he felt he had not been reinstated ...

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