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May 8, 1986


The opinion of the court was delivered by: BARTELS



 Theodore F. Johnson, a former car inspector with the New York City Transit Authority ("NYCTA"), commenced an action against the NYCTA and six NYCTA employees on or about March 25, 1983, alleging that the NYCTA and the six named employees had discriminated against him on the basis of race in violation of 42 U.S.C. § 1983, and in violation of the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. In his Amended and Supplemental Complaint filed on January 23, 1984, plaintiff sought one million dollars in compensatory damages, three million dollars in punitive damages, and a permanent injunction against the defendants designed to restrain them from engaging in the type of behavior described in plaintiff's complaint.

 On May 4, 1984, the defendants filed a motion to dismiss the complaint or, in the alternative, for summary judgment. In an Order dated May 25, 1984, Judge Henry Bramell granted defendants' motion to dismiss as to those claims arising prior to August, 1977, on the grounds of the application of the statute of limitations, res judicata, and judicial economy. He denied defendants' motions with respect to those claim arising after August, 1977, but specifically reserved defendants' right to renew their motions upon the completion of discovery. The defendants subsequently renewed their motions before this Court as to the post August, 1977, claims.

 Not satisfied with the first complaint, plaintiff commenced yet another action in this Court on February 27, 1985, against the NYCTA and against Local 100 of the Transport Workers Union of America, AFL-CIO ("Local 100"), based on the same alleged occurrences which formed the basis of the § 1983 complaint. Plaintiff alleged that he had been discriminated against in Violation of 42 U.S.C. § 2000e et seq. ("Title VII") and he sought $500,000 in compensatory damages, $1,000,000 in punitive damages, plus reinstatement and back pay. *fn1" The § 1983 action and the Title VII action were ordered consolidated.

 Both defendants have now filed motions to dismiss the complaints on the ground of res judicata and/or failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment. The NYCTA moved for an award of costs and attorney's fees in the § 1983 action, and Local 100 has interposed a counterclaim for costs and attorney's fees in the Title VII action.


 Although plaintiff's claims arising prior to August, 1977, have already been dismissed, those claims are summarized here to provide a complete context for the discussion which follows. Theodore F. Johnson, a black man, was employed by the NYCTA from February 16, 1971, until August, 1983. During the course of his employment, he was a merger of the Transport Workers Union, Local 100, which had negotiated a collective bargaining agreement with the NYCTA.

 Johnson's litigious relationship with the NYCTA began shortly after he was hired. In 1972, the NYCTA allegedly asked Johnson to work on Sundays. He refused to comply, claiming religious grounds for his objection to the request, and he subsequently filed the first of many complaints against the NYCTA with the New York State Division of Human Rights ("SDHR"). In his present federal complaint, Johnson claims that he has suffered years of retaliation at the hands of the NYCTA simply because he filed this first SDHR complaint. He alleges that this action triggered "a malicious and planned program of harassment, retaliation, and retribution" by the defendants. (Amended and Supplemental Complaint in 83 CV 1352 at P 11).

 On November 19, 1976, plaintiff claims that he was overcome by steel dust, asbestos, and other chemicals while working as a car inspector. He was taken to Brookdale Hospital and thereafter, from November 19 to December 1, 1976, he was treated at the New York Veterans Administration Hospital for nausea, chest pain, vomiting, and breathing difficulties. He returned to work on January 3, 1977, and was placed on restricted duty status after examination by a NYCTA physician. He was instructed by the physician not to enter "the pits, trains, or structures." (Complaint at P4).

 Plaintiff claims that despite the physician's instructions, he has ordered to perform his regular duties by the defendant William Oates, his supervisor. Plaintiff protested, but the defendant Oates allegedly insisted that he follow orders. During this time, plaintiff continued to receive outpatient treatment until February 24, 1977, when he was hospitalized at the Veterans Hospital in Brooklyn where he remained until March 2, 1977, when he returned to work.

 Plaintiff once again became ill and was hospitalized at Veterans Hospital on April 12, 1977. Upon returning to work, plaintiff was placed on restricted duty. On June 3, 1977, the NYCTA physician again examined plaintiff and ordered him placed on "permanent restricted duty," not to enter onto the tracks, into the trains, or in the pits. Instead, plaintiff was authorized to do clerical work. In order to effect the physician's orders, the NYCTA requested that the plaintiff sign an affidavit indicating "voluntary change of title from car inspector to junior railroad clerk at junior railroad clerk pay on July 27, 1977. Since this meant a demotion at less pay, plaintiff refused to sign. Subsequently, plaintiff was suspended without pay until November 4, 1977, when he was formally charged with violation of NYCTA rules and regulations. The trial board which held a hearing on these issues dismissed all charges except two: 1) reporting late for work on one of two occasions, and; 2) plaintiff's medical incompetence to perform the duties of Car Inspector. The penalty imposed was a suspension from July 27, 1977, through March 3, 1978. The Appellate Division, upon hearing plaintiff's appeal, subsequently modified the penalty to a period of three months.

 When plaintiff returned to work after the suspension, he claims that he was the victim of continual harassment. He alleges that he was forced to go into the pits to scrape dirt and grease, to load and unload trucks, and to perform other tasks which were medically contraindicated. He also alleges that he was threatened by NYCTA employees, and that these employees went so far as to "set him up" in dangerous situations. One such alleged "set up" occurred on June 29, 1981, when plaintiff claims he was standing on a ladder which "someone" pushed, causing plaintiff to fall eight to ten feet and to suffer "serious permanent injuries." Plaintiff has not worked since this incident. It is unclear whether plaintiff simply quit, was suspended, or was discharged.

 Plaintiff's complaint further contains a potpourri of allegations of retaliation and harassment, including arbitrary denial of pay differential, improper docking of his pay, and improper charges brought against him. Finally, plaintiff alleges that he was improperly denied a new subway travel pass. On August 24, 1983, plaintiff attempted to use his outdated travel pass at the subway on 116th street. As a result he was arrested for failing to pay his subway fare. Since he believes that he was improperly denied a new pass, he views this incident as unlawful arrest and detention by the Transit Authority officers.

 The defendants deny all of plaintiff's allegations of harassment, intimidation, and retaliation. The NYCTA's position in that when plaintiff was found medically incompetent to perform the duties of car inspector, it had every right to demote him with less pay pursuant to Article 14 of the Schedule of Working Conditions agreed to by plaintiff's union, Local 100. Article 14 states that if an employee is permanently medically restricted and has less than ten years of service with the employer, then the NYCTA has the right to demote that employee with less pay.

 As to plaintiff's status upon "separation" from the NYCTA, the NYCTA maintains that Johnson has been "absent without proper authority since at least August 26. 1983, and has failed to report for duty as directed." As a result of this unauthorized absence, the NYCTA on October 20, 1983, proffered charges of "Misconduct and/or Incompetence" against Johnson. In reply, Johnson contends that he was never directed to report for duty after he left the NYCTA in June, 1981.


 I. Res Judicata.

 The defendants urge that Johnson's claims arising after August, 1977, should be dismissed on the ground of res judicata. They urge that Johnson has raised all of the claims contained within his federal complaint in prior complaints filed with various New York State administrative and judicial ...

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