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December 20, 1993

ROBERT J. STEIN, JR., Plaintiff,

The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.


 This is a civil rights action brought by a former employee of the New York State Department of Motor Vehicles ("DMV") who alleges that the DMV retaliated against him by terminating his employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. ("Title VII"), due to his intention to file an anti-discrimination claim with the DMV's affirmative action office. The matter is presently before the court on Defendant's motion for summary judgment and Plaintiff's cross-motions for summary judgment, and for sanctions. The court heard oral argument on September 24, 1993 in Albany, New York and reserved decision on the motions. This constitutes the Decision and Order of the court.


 Plaintiff, a provisional employee of the DMV from February, 1984 to October 2, 1989, alleges that the DMV fired him in retaliation for his intent to file a complaint with Van Holland, the DMV affirmative action officer, alleging that Defendant discriminated against him because he is Jewish. Defendant claims that Plaintiff was fired as the result of an investigation that indicated that Plaintiff was using State time and resources to further his own private business interests.

 Defendant maintains that in February 1989, Rachel Kretser, an Assistant Attorney General ("AAG") in charge of the Consumer Protection Bureau, referred correspondence to Edward Sheridan (who was then the General Counsel for the DMV), expressing concern that Plaintiff was misusing State resources. This concern stemmed from the discovery of one of Plaintiff's business cards from his "Lemon Law" consulting business (a side business that Plaintiff carried on) with Plaintiff's DMV telephone number handwritten upon it. Defendant's concern was allegedly compounded by its discovery that Plaintiff had made long distance telephone calls amounting to more than $ 2,000, at DMV's expense, in connection with the "Lemon Law" side business.

 In August 1989, James Rose of the FBI was appointed Inspector General for the DMV, and as such had overall supervisory responsibility for the investigation of alleged employee misconduct in the DMV. Mr. Rose directed two investigators, Frank Graziano and Eileen Wolck, to proceed with the investigation of the AAG's allegations against Plaintiff. *fn1" Plaintiff's phone records were the focal point of the investigation, as they allegedly indicated that Plaintiff had made some $ 2300.00 of unauthorized calls via his personal identification ("LINKS") telephone number. After reviewing all of the evidence, Rose "concluded that the evidence appeared to indicate a violation of the penal law and activity that warranted termination." *fn2" Defendant further alleges that "Executive Deputy Commissioner Norman Schneider was informed of the evidence against [Plaintiff] and after review by Department Counsel Edward Sheridan, the case was presented to the [Albany County] District Attorney." *fn3" After Inv. Graziano presented the case to the District Attorney ("DA") on September 29, 1989, the DA "recommended that Plaintiff be interviewed and, if he admitted the charges, arrested." *fn4"

 Accordingly, Investigators Graziano, Wolck and State Police Investigator Richard Crist attempted to interview Plaintiff on September 29, but he was out that day, so they interviewed him on October 2, 1989, the next business day. During the interview, Plaintiff admitted to certain of the calls and was terminated from employment. *fn5" Per standard procedure, Plaintiff was then escorted back to his desk to empty his belongings, and thereafter escorted from the building.

 What transpired next is disputed by the parties. Plaintiff alleges that on the evening of October 2, 1989 (the day that DMV fired him) Robert Shaw, a then Deputy Commissioner of the DMV, threatened him that if Plaintiff "'made waves' by going to the media, to any Jewish activist groups, etc., the Department would have him arrested on felony charges." *fn6" Plaintiff's son, Daniel Stein, echoes Plaintiff's claim that this "threat" came from Robert Shaw. *fn7" Plaintiff's son, who claims to have heard the telephone conversation firsthand while listening in on another telephone, alleges that Shaw stated to Plaintiff that, "'the Department will let things stand with just firing you, but that if you go [sic] the Anti-Defamation League, the papers, or any activist group, or if you make any waves, the Department will have you arrested on felony charges,'" or words to that effect. *fn8"

 Plaintiff further alleges that on October 18, 1989, Inv. Graziano and Richard Crist came to his home and informed Plaintiff's wife that Plaintiff was to "turn himself in to be arrested on October 20, 1989." *fn9" On October 20, 1989, Plaintiff was arrested and charged with Grand Larceny in the fourth degree. Plaintiff maintains that the arrest resulted from the fact that on October 18, 1989 he was "mistakenly perceived" to have gone to an activist group by William Rourke, a DMV employee, and that therefore, the DMV carried out the "threat" previously alluded to by Shaw. *fn10"

 On January 27, 1990, Plaintiff pled guilty to disorderly conduct in satisfaction of the felony charge, paid a fine and $ 500 towards restitution. Plaintiff claims that his plea of guilty to the criminal charge was prompted by his desire to "avoid the stress of appearing before a Grand Jury" due to the fact that on November 21, 1989 he had suffered a severe myocardial infarction. *fn11"

 Plaintiff lodged a complaint with the Equal Employment Opportunity Commission ("EEOC") on July 24, 1990. EEOC (through Inv. David Ging) conducted an investigation of Plaintiff's charges, which included a fact-finding conference on November 11, 1990. EEOC found no basis upon which to sustain Plaintiff's retaliation claim, although it did note that the investigation of plaintiff regarding the phone calls

started in March 1989; was neglected for several months; and revived with a flurry of activity in late September and early October, 1989. On September 29, 1989, it was claimed that the Charging Party had made over two thousand, three hundred dollars worth of personal calls at the Respondent's expense. Though this claim was made with more speculation than evidence to substantiate it, the Charging Party was, nevertheless, discharged.
Despite outward appearances, there is no evidence to substantiate the Charging Party's claim that the Office of Internal Affairs conspired with the Charging party's supervisor or top level management employees to get rid of the Charging Party because of his religious identity, or to prevent him from filing any formal internal complaint of discrimination. Instead, the evidence suggests that the decision to pursue discharge of the Charging Party with little evidence of wrongdoing was the result of the practices of the Office of Internal Affairs at that time.
It should be noted that, according to witnesses, the Charging Party's supervisor, as well as other members of the Respondent's management staff, were aware of other employees who were Jewish and who had filed, or intended to file, charges of discrimination. However, no retaliatory acts, such as alleged by CP, were taken against those employees. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute. *fn12"

 Plaintiff next appealed the EEOC's determination to the Determinations Review Program, which affirmed the initial determination, stating that, "overall, there is insufficient evidence to substantiate CP's allegation of a violation of Title VII." *fn13"

 Sometime in the fall of 1990, Plaintiff initiated a proceeding pursuant to N.Y. Civ. Prac. L. & R. article 78 ("article 78") seeking an Order in the nature of Mandamus compelling Defendant, inter alia, to "reopen" the criminal case. On January 28, 1991, Supreme Court Justice Daniel H. Prior, Jr., Albany County Special Term, issued a Memorandum Decision dismissing Plaintiff's article 78 proceeding. *fn14" Judge Prior found that Plaintiff failed to show that he had a clear legal right to the relief sought and therefore denied Plaintiff's motion, stating:

In the instant matter, it appears rather clear that no basis exists for Mandamus compelling respondent to. . . "reopen[]" the criminal case. Initially, it is noted that petitioner fails to show that he has a clear legal right to the relief sought. . . . It is significant to note that petitioner pled guilty to a reduced charge rather than contest the allegations against him in an attempt to completely ...

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