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January 7, 1991


The opinion of the court was delivered by: Brieant, Chief Judge.


This action brought June 15, 1989 pursuant to 42 U.S.C. § 1983 seeks declaratory relief, preliminary and permanent injunctive relief and damages. The action involves allegations of employment discrimination and harassment by defendants (a municipality and individual officials or employees) of plaintiff (a municipal employee) on the basis of national origin pursuant to 42 U.S.C. § 1983, retaliation in violation of 42 U.S.C. § 2000e-3(a), and discrimination on the basis of disability pursuant to § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). The Court has subject matter jurisdiction under 28 U.S.C. § 1331, 1343, 2201 and 2202.

By motion docketed August 6, 1990, and fully submitted on October 10, 1990, the defendants move for summary judgment pursuant to Rule 56 and dismissal pursuant to Rule 4(j) of the Federal Rules of Civil Procedure. Grounds asserted in support of the Rule 56 motion include collateral estoppel, statute of limitations and failure to state a claim upon which relief can be granted. Failure of proper and timely service of process is also alleged as to the City of White Plains, Mayor Alfred Del Vecchio, the Human Rights Commission of the City of White Plains ("the Commission"), Silvio Gardella as Chairman of the Commission, as well as Marvin Stern and Jeffrey Silverbush in their individual capacities.

The motion for summary judgment is based on the premise that there are no issues of triable fact in the case and the law so favors the moving party that entry of judgment in favor of the movant dismissing the complaint is proper. The burden of proof rests squarely upon the movant to establish that there are no triable issues of fact, and all the evidence must be viewed in the light most favorable to the non-moving party. See, American International Group, Inc. v. London American International Corp., 664 F.2d 348 (2d Cir. 1981); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980).

Plaintiff was employed by the City of White Plains on September 10, 1979 under the title "Executive Director of the Human Rights Commission of the City of White Plains". He alleges that shortly thereafter, a gradually increasing pattern of harassment and discrimination commenced. The plaintiff alleges, inter alia, that the actions of defendants were based on plaintiff's various claimed handicaps, which include heart arrythmia, claustrophobia, chronic sinusitis, high blood pressure and a thyroid imbalance.

On May 24, 1984, the plaintiff's attorney sent a letter (the "May 24 letter") in plaintiff's behalf to the Mayor, citing several complaints which plaintiff attributed solely to discriminatory employment practices, not discrimination on the basis of handicap, and requested a conference to resolve the complaint (See, Exhibit 5, Plaintiff's Papers in Opposition to Defendant's Motion for Summary Judgment; Wirtz Affidavit, Ex. L). A conference was held, at which time plaintiff was allegedly given the impression that the problem was resolved.

Thereafter, plaintiff claims that the defendants allegedly began closely monitoring plaintiff's use of accrued vacation, sick or compensatory leave time. Plaintiff alleges that the defendants did not monitor any other department or agency head as closely as plaintiff.

On December 31, 1986, plaintiff was discharged after an evidentiary hearing pursuant to § 75 of the New York Civil Service Law. That disciplinary hearing was held over an 18 day period at which over 2,600 pages of testimony were taken. At the conclusion of the hearing, the hearing officer recommended that plaintiff be found guilty of 4 of the 6 charges and that he be terminated (See, Wirtz Affidavit, Ex. J). Specifically, the hearing officer recommended that plaintiff be found guilty of (a) misconduct by abusing his sick and personal leave, (b) incompetence because of his excessive absenteeism, (c) misconduct by falsely reporting his leave use and (d) incompetence because of his inaccurate reports of leave use. The hearing officer recommended that the plaintiff be found not guilty of (a) misconduct by falsely reporting that he had left the office at a particular hour when he had actually left earlier and (b) misconduct by failure to report certain leave time taken. The hearing officers' recommendations were adopted by the Commission, and on December 31, 1986, plaintiff was terminated (See, Exhibit 11, Exhibits to Plaintiff's Papers in Opposition to Defendant's Motion for Summary Judgment).

Subsequently, plaintiff filed an Article 78 proceeding in New York State Supreme Court to review his discharge. He withdrew that petition prior to any adjudication on the merits (see, Plaintiff's Memorandum in Opposition to Defendants Motion for Summary Judgment, p. 7-8), and such relief is now time barred.

Plaintiff had filed a charge of discriminatory harassment with the New York State Division of Human Rights (the "SDHR") and the Equal Employment Opportunity Commission ("EEOC") on June 12, 1985 and filed an amended charge on March 7, 1986, which added a claim of retaliation because the disciplinary charges had been filed against him. (See, Wirtz Affidavit, Exs. A and B). The charge was amended once again on January 28, 1987 to include an allegation of discrimination on the basis of disability.

A decision on plaintiff's SDHR complaint finding no probable cause was issued on February 25, 1988 (See, Wirtz Affidavit, Ex. F). An application to reopen the matter was denied by the Commissioner of the SDHR on February 15, 1989 (See, Wirtz Affidavit, Ex. G). Plaintiff's counsel affirms that a substantial weight review of the § 75 hearing was never held by the EEOC because the EEOC considered that it lacked jurisdiction as long as the plaintiff's request to the SDHR to reopen and reverse its decision was still pending. Before a substantial weight review could be done, plaintiff requested and was sent a right-to-sue letter, which terminated the EEOC's jurisdiction (See, Complaint, ¶ 58; Declaration of Anne Golden annexed to Doc. 13, ¶ 2, pp. 1-2).

The charges which resulted in the § 75 hearing leading to plaintiff's discharge were served on him on February 27, 1986, approximately 8 months after plaintiff first filed his SDHR and EEOC complaints.

The complaint in this action, filed June 22, 1989, alleges that beginning in 1980 defendants "instituted a policy of harassing plaintiff" by refusing to fill vacancies in plaintiff's department and provide office equipment (¶¶ 28(a) and (b)), refusing to permit him to discipline unsatisfactory employees (¶ 28(c)), requiring more strict accounting for time and attendance than required for others (¶ 28(d)), requiring him to remain in the office when his secretary was out (¶ 28(e)), blocking plaintiff's attempts to obtain federal and state funding for his department's programs (¶ 28(f)), isolating plaintiff and discouraging him from conferring with the Mayor (¶ 28(g)), denying plaintiff compensatory time (¶ 28(h)), excluding plaintiff from meetings of the Commission (¶ 28(i)), increasing plaintiff's duties while denying him staff and equipment (¶ 28(j)) and making derogatory remarks about plaintiff's English skills (¶ 28(k)). The complaint also alleges (¶ 35) during the period 1984 through December 31, 1986, plaintiff suffered from physical illnesses and conditions resulting, inter alia, from stress caused by his job conditions. Plaintiff also asserts that these acts of defendants were done in an attempt to force plaintiff to resign from his job and were motivated by discrimination because of plaintiff's handicap. He alleges extreme emotional and mental anguish and humiliation and that defendants' conduct has exacerbated his illnesses (¶¶ 37-38).

Plaintiff also alleges that the defendants City of White Plains, Mayor Del Vecchio, the Commission, Mr. Gardella and Mr. Graessle further discriminated against plaintiff by refusing to give plaintiff compensatory time earned for extra hours worked (¶ 45(a)), wrongfully accusing plaintiff of taking excess sick leave, vacation leave and personal leave time (¶ 45(b)), requesting medical documentation concerning plaintiff's illnesses (¶ 45(c)), requesting that plaintiff resign his job if he brought charges or filed a lawsuit alleging discriminatory employment practices by the City (¶ 45(d)), refusing to permit plaintiff to hire adequate personnel to assist him in carrying out the mandate of the Commission (¶ 45(e)), relocating plaintiff's office to a less desirable location without consulting him and without legitimate business reason (¶ 45(f)) and attempting to isolate plaintiff and to otherwise harass, intimidate and inhibit him in the performance of his job (¶ 45(g)).

Plaintiff states in his complaint that he is an individual of Hispanic national origin (¶ 4).


Plaintiff's Title VII and § 2000e-3(a) Claims

"Title VII has been violated if `a retaliatory motive play[ed] a part in the adverse employment actions,' . . . even if it was not the sole cause." Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986), citing, Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980). In a similar case, a prima facie showing of retaliatory motive was made simply by showing that the adverse employment action was taken within one year of the filing of the Title VII complaint. See, De Cintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) ("De Cintio II"), cert. den. 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). The Court concludes that the plaintiff has alleged sufficient facts within 42 U.S.C. § 1983 and 2000e-3(a) to survive a summary judgment motion, and has met the threshold showing required by Johnson v. New York City Transit Authority, 639 F. Supp. 887, 893 (E.D.N.Y. 1986), aff'd in part, 823 F.2d 31 (2d Cir. 1987) (the plaintiff must allege that "similarly situated nonminority employees were treated differently") and Wade v. New York Telephone Co., 500 F. Supp. 1170, ...

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