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VANN v. NEW YORK CITY TRANSIT AUTH.

June 2, 1998

VINCENT VANN, Plaintiff, against NEW YORK CITY TRANSIT AUTHORITY, MARK GUMBS, Pass # 348006, in his individual and official capacity, and CLARENCE MITCHELL, Pass # 613062, in his individual and official capacity, and C. TOTTEN, Pass # 9000060, in his individual and official capacity, and KYLE PIPKIN, sued herein in error as Kile Pipken, Pass # 704384, in his individual and official capacity, and SCOTT BENBOW, Pass # 058901, in his individual and official capacity, Defendants.


The opinion of the court was delivered by: SWEET

OPINION

 Sweet, D.J.,

 Defendants the New York City Transit Authority (the "Transit Authority"), Mark Gumbs, Clarence Mitchell, C. Totten, Kyle Pipkin and Scott Benbow (collectively, the "Defendants") have moved to dismiss the complaint filed by Vincent Vann ("Vann") pursuant to Rule 56, Fed. R. Civ. P. Vann alleged in his complaint that the Transit Authority terminated his employment due to his exercise of free speech rights guaranteed by the First Amendment to the United States Constitution, in violation of 42 U.S.C. ยง 1983. For the reasons set forth below, Defendants' motion is granted, and the action is dismissed.

 Facts and Prior Proceedings

 Vann was hired by the Transit Authority as a trackworker on October 7, 1993, subject to a one year probationary term for evaluating his services. The Transit Authority discharged Vann on July 1, 1994. The discharge letter, written by Howard Chynsky, the Finance and Human Resources Officer at the Transit Authority's Division of Track, states that the reason for Vann's termination is that "you have not satisfactorily completed your probationary period."

 Defendants also submitted a memorandum, dated July 1, 1994, from Frederick E. Smith, the Chief Engineer at the Division of Track, and addressed to William Seres, Deputy Vice President of Employee Resources, which states that:

 
On May 5, 1994, [Vann] violated the rules of New York City Transit with regard to safety and insubordination in that he absented himself from a job site and he failed to have all of his safety gear. As a result, [Vann] was given a final warning on May 13, 1994. On June 9, 1994, [Vann] again violated New York City Transit rules with regard to safety and insubordination in that he absented himself from a job site and he failed to connect the third rail alarm timely upon being ordered to do so.

 The memorandum concludes that "it is deemed that the services of Trackworker Vann are unsatisfactory and it is recommended that he be terminated immediately."

 Vann filed a complaint in this Court on June 9, 1995, alleging primarily that he was unlawfully terminated as a result of his persistent complaints to Transit Authority management that unsafe conditions existed at his job site that put himself, his co-workers, and the general public at risk.

 The Defendants filed the instant motion on November 26, 1997. Argument was heard on March 25, 1998, at which time both parties were granted leave to submit additional materials. Defendants filed a supplemental affidavit and memorandum of law in support of the motion to dismiss on April 17, 1998. Vann did not file any additional papers, and has submitted no affidavits, documents, or other evidence to support his allegations in opposition to the instant motion.

 Discussion

 I. Standard For Summary Judgment

 Under the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1).

 In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Keywell Corp. v. Weinstein, 33 F.3d 159, 163 (2d Cir. 1994) (a party is entitled to summary judgment if "resolving all ambiguities and drawing all factual inferences in favor of the non-moving party, there is no genuine issue of material fact to be tried"). Moreover, "credibility determinations, the weighing of the evidence, and the drawing of ...


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