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SEWELL v. NEW YORK CITY TRANSIT AUTH.

December 30, 1992

LEE R. SEWELL, Plaintiff,
v.
THE NEW YORK CITY TRANSIT AUTHORITY, TRANSIT PROPERTY PROTECTION DEPARTMENT, TRANSIT LABOR RELATIONS DEPARTMENT, TRANSIT EQUAL EMPLOYMENT OPPORTUNITY AFFIRMATIVE ACTION DEPARTMENT, and JOHN DOES, in their official and individual capacities, Defendants. LEE R. SEWELL, Plaintiff, v. THE NEW YORK CITY TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 In the above-captioned actions, the pro se plaintiff, Lee Sewell, alleges that the defendants discriminated against him in the workplace. Plaintiff brought the first action under 42 U.S.C. § 1983 and the second action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff now moves for summary judgment in both actions and defendants cross-move for summary judgment in both actions. For the following reasons, plaintiff's motion is denied and defendants' motion is granted in both actions.

 FACTS

 The parties do not dispute any of the material facts underlying these actions. Plaintiff began working for the New York City Transit Authority ("NYCTA") on December 29, 1986 as a Transit Property Protection Agent. His duties were to control entrance and egress from NYCTA property and to patrol NYCTA property to protect it from fire, theft, vandalism, etc.; After plaintiff was continually disciplined for his absenteeism and refusal to comply with NYCTA rules and policies, on August 21, 1990, a NYCTA hearing officer recommended that he be terminated. Plaintiff went before the Tripartite Arbitration Board (the "TAB") of the NYCTA to challenge the hearing officer's decision. On October 1, 1990, the TAB affirmed that recommendation. TAB Opinion and Award ("TAB Op.") (Exh. G to Defs' 3(g) Statement). In its opinion the TAB noted that plaintiff (1) failed to report to work on February 17, 1990; (2) failed to appear at work and refused to disclose his whereabouts on March 12-13, 1990; and (3) refused to report to an assigned job on April 24, 1990. TAB Op. at 2. Plaintiff did not dispute any of those charges before the TAB; he simply attempted to explain his conduct. Id. at 2-3. Because the TAB found "the explanations offered by [plaintiff] in the instant matter [] lacking in both verification and credibility," it affirmed the hearing officer's recommendation that plaintiff be terminated. Id. at 3-4. Thereafter, plaintiff was terminated by the NYCTA on October 8, 1990, *fn1" and the TAB opinion was subsequently confirmed in a state court proceeding under Article 75 of the N.Y. Civ. Prac. L. & R. ("Article 75 proceeding"). Order of New York State Supreme Court, Kings County (Jackson, J.), filed February 6, 1992 (Exh. I to Defs' 3(g) Statement).

 Sewell I

 On October 30, 1990, plaintiff commenced an action under 42 U.S.C. § 1983, against the NYCTA, the Transit Property Protection Department, the Transit Labor Relations Department, and the Transit Equal Employment Opportunity Affirmative Action Department (collectively, the "NYCTA defendants"); the City of New York; *fn2" and various unnamed defendants in their official and individual capacities *fn3" ("Sewell I"). Plaintiff alleged that the defendants discriminated against him while he was a NYCTA employee and when they fired him. However, since plaintiff failed to allege that his rights were violated pursuant to an official "policy or custom" of the NYCTA defendants, this Court granted plaintiff leave to file an amended complaint setting forth which impermissible policy or custom, if any, led to the claimed deprivation of his constitutional rights. Memorandum and Order, dated February 10, 1992, at 6-7 ("Mem. & Order").

 Thereafter, on February 24, 1992, plaintiff filed an amendment to the complaint alleging that:

 during the plaintiff's tenure with the N.Y.C.T.A., the defendants repeatedly adhere to the impermissible custom of negating written specified regulations, policy and/or contractual agreements; . . . The continuous negation of these specific rules, regulations, policy, agreements, inevitably led to the [] deprivation of [plaintiff's] federal rights; and eventually the plaintiff's employment with the N.Y.C.T.A.

 Amended Complaint at 2, PP I-II. *fn4" Plaintiff annexed to the Amended Complaint a copy of the NYCTA Regulations, Part I, Rules 1-3 (Exh, A); certain provisions of the Contractual agreement between the NYCTA and the Transit Workers Union (Exh. A); and various provisions of NYCTA Executive Order 82-1 (Exh. B).

 Sewell II

 On April 10, 1991, plaintiff brought a second action solely against the NYCTA under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ("Sewell II"). He alleged that the NYCTA fired him in retaliation for "[his] repeated attempts to seek redress, internally and externally of discriminatory disciplinary acts." Complaint at 2. On October 19, 1990, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging retaliatory termination. *fn5" He then commenced Sewell II within 90 days of receipt of a "right-to-sue" letter from the EEOC. In an earlier decision, this Court upheld plaintiff's retaliatory discharge claim. Mem. & Order at 7-8.

 Each of the parties now moves for summary judgment in Sewell I and Sewell II, arguing that there are no genuine issues of material fact to preclude summary judgment in its favor. For the following reasons, plaintiff's summary judgment motion in Sewell I and Sewell II is denied; the NYCTA defendants' cross-motion for summary judgment in Sewell I is granted; and defendant NYCTA's cross-motion for summary judgment in Sewell II is granted.

 DISCUSSION

 Preclusive Effect of Article 75 Proceeding

 As a preliminary matter, defendants argue that plaintiff may not relitigate the facts and issues surrounding his termination of employment in an action under Title VII or § 1983 once a state court has confirmed the TAB decision in an Article 75 proceeding. Defendants invoke the doctrines of res judicata and collateral estoppel in support of their argument. The doctrine of res judicata or claim preclusion estops a party from relitigating a claim or cause of action decided in an earlier action or which the party could have raised, but was not actually litigated, in the earlier proceeding, Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-07, 165 N.E. 456, 457 (1929) (Cardozo, J.), because "once a judgment has been rendered by a court of competent jurisdiction, it will be treated thereafter as the full measure of relief ...


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