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MENNELLA v. OFFICE OF COURT ADMIN.

August 25, 1996

THOMAS A. MENNELLA, Plaintiff, against OFFICE OF COURT ADMINISTRATION, E. LEO MILONAS, individually and as Chief Administrative Judge of the Unified Court System of the State of New York, BARRY A. COZIER, individually and as Deputy Chief Administrative Judge of the Unified Court System of the State of New York for the New York City Courts, JONATHAN LIPPMAN, individually and as Deputy Chief Administrator for Management Support of the Unified Court System of the State of New York, "JOHN DOE" and "JANE DOE" whose names are presently unknown to the plaintiff and who are agents, employees, assistants and persons acting in concert or cooperation with the defendants MILONAS, COZIER, and LIPPMAN, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This action was commenced by the plaintiff pro se Thomas L. Mennella on December 26, 1995, seeking injunctive relief and money damages pursuant to 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII") and The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The complaint names the following defendants: Office of Court Administration, E. Leo Milonas, individually and s Chief Administrative Judge of the Unified Court System of the State of New York, Barry A. Cozier, individually and as Deputy Chief Administrative Judge of the Unified Court System of the State of New York for the New York City Courts, Jonathan Lippman, individually and as Deputy Chief Administrator for Management Support of the Unified Court System of the State of New York, "John Doe" and "Jane Doe" whose names are presently unknown to the plaintiff and who are agents, employees, assistants and persons acting in concert or cooperation with the defendants Milonas, Cozier, and Lippman.

 Presently before the Court is a motion by the defendants for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c).

 I. BACKGROUND

 A. A prior related action

 The defendants' argue that principles of res judicata bar the present action and entitle them to a judgment on the pleadings. The defendants refer to a prior action commenced in the Eastern District of New York by Thomas L. Mennella on June 24, 1994, which was dismissed in an Order dated October 27, 1994 by the Hon. I. Leo Glasser. The plaintiff appealed from Judge Glasser's Order, which was affirmed by the Second Circuit on July 26, 1995. The defendants in this action plead the affirmative defense of res judicata in their answer to the complaint. The defendants annex to their answer in this action, copies of the following documents: (1) the complaint in CV 94-3024 (ILG); (2) the Memorandum and Order dated October 27, 1994 in CV 94-3024 (ILG); and (3) the Second Circuit Summary Order dated July 26, 1995. The defendants here, who were also the named defendants in CV 94-3024 (ILG), contend that principles of res judicata bar the present action.

 In the Decision and Order dated October 27, 1994, Judge Glasser stated the following,

 
For the purpose of this motion to dismiss, the following facts are accepted as true. Mennella is an employee of the Unified Court System of the State of New York (hereinafter referred to as the Office of Court Administration, or "OCA"). Mennella was assigned to the position of deputy chief clerk of the criminal term of the Supreme Court, Kings County on or about January 1, 1991.
 
Defendants Milonas, Lippman and Cozier are named individually and in their respective positions as Chief Administrative Judge, Deputy Chief Administrative Judge and Deputy Chief Administrator for Management Support of the OCA. The Complaint also names as defendants "John Doe" and "Jane Doe," persons whose names are otherwise unknown to plaintiff, as "agents, employees, assistants and persons acting in cooperation with" the named defendants.
 
In June 1993, Mennella filed an application for the promotion to the position of Court Clerk Specialist for the Supreme Court, Second Judicial Department, Kings County. Mennella was interviewed for the position by a panel, in accordance with the procedures of the OCA, and was one of the three nominees whose names were submitted for the position. The panel, in making its recommendations, ranked Mennella first. Defendant Milonas was notified of the recommendations of the interview panel on or about July 14, 1993.
 
Subsequent to July 15, 1993, defendants Milonas and Lippman, "through their agents, assistants and employees" questioned female employees at the Supreme Court Courthouse, Kings County, as to whether they were ever sexually harassed by Mennella. Mennella was interviewed by defendants, Milonas and Lippman on or about April 11, 1994, and by defendant Cozier and Joseph J. Trafficanti, the Deputy Chief Administrative Judge for courts outside New York City, on or about March 2, 1994. Mennella alleges that this second interview was contrary to the rules, regulations and procedures of the OCA. The second ranked nominee for the position of Court Clerk Specialist was thereafter chosen for the position. Mennella was transferred from the criminal part of the Supreme Court to the civil part. Mennella states, on information and belief, that the reason given by defendants for their choice was that the plaintiff did not project the right "image."
 
Mennella brought this action, claiming a due process violation of the fifth and fourteenth amendments of the United States Constitution and 42 U.S.C. § 1983.

 Memorandum and Order of Judge Glasser dated October 27, 1996, at 1-3.

 B. The present complaint

 As in the prior action, the complaint in this case alleges a due process violation of the fifth and fourteenth amendments of the United States Constitution and 42 U.S.C. § 1983. In addition, the present complaint sets forth claims of employment discrimination and retaliation pursuant to Title VII and the ADEA. The present complaint names those defendants who were named in CV 94-3024 (ILG) and also names the Office Of Court Administration, the agency for which the defendants Milonas, Lippman, Cozier serve in their official capacities.

 The present complaint alleges that Mennella was assigned as "acting deputy chief clerk of the criminal term of the Supreme Court, Kings County on January 1, 1991 and received the highest performance ratings from the then Administrative Judge of the Second Department, the Hon. Ronald J. Aiello. The complaint further alleges that on June 2, 1993, OCA posted an employment opportunity for Court Clerk Specialist for the Supreme Court Second Judicial Department, Kings County (JS-30). According to the complaint Mennella applied for the position, was interviewed by a panel in accordance with uniform procedures and was recommended as the first ranked candidate to then ...


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