to sustain his burden on the question of collateral estoppel.
See DeCintio, 821 F.2d at 117.
9. Plaintiff's failure to avail himself of any appeal via
Article 78 with respect to the actions of the Hearing Officer on
the misconduct proceedings and the SDHR on Charge 2 precludes him
from asserting here that his due process rights were violated in
connection with either of those proceedings. See Hellenic Am.
Neighborhood Action Comm. v. City of New York, 101 F.3d 877 (2d
10. All of plaintiff's claims except his First and Third Causes
of Action, which are brought pursuant to Title VII,
42 U.S.C. § 2000-e., are dismissed on the ground that the charges brought
therein were finally resolved in prior proceedings, thus
precluding plaintiff from asserting those claims in this Court.
11. Plaintiff has not proffered any evidence from which a trier
of fact could infer that he was denied the position of Relief
Driver either because of his race or in retaliation for his
having filed Charge 1 and/or the Grievance. It remains undisputed
that plaintiff padded his time sheets and defrauded his insurance
carrier. Either of those acts afforded Beckwith sufficient ground
to deny plaintiff the job of Relief Driver, which the undisputed
facts show is a position susceptible to the same sort of abuse
plaintiff had already committed. Taken together, a rational trier
of fact could not possibly reach any conclusion other than the
one reached by Beckwith — that plaintiff was manifestly unfit for
the job he sought. Thus, plaintiff has failed to make out a
prima facie case that he was qualified for the position he
sought, which is a prerequisite to his maintaining this action.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).
12. Additionally, no rational trier of fact could conclude that
the disciplinary charges preferred against plaintiff were brought
for any reason other than his serious misconduct; indeed,
plaintiff, by pleading guilty to insurance fraud — committed
against his insurer via the subornation of a fellow employee and
via the use of defendant's stationery — admitted that he had
committed acts worthy of discipline. See Certificate of
Conviction, attached as Ex. G to the Southard Affidavit.
13. The only evidence that plaintiff proffers is his own
self-serving statement that Beckwith told him, on September 17,
1997, that Harrison would never get the position of Relief Driver
as long as Beckwith was Director of Transportation, and that
Beckwith further stated Harrison could not have the job because
he had previously filed a charge of discrimination against the
District. However, plaintiff's own union representative, Deborah
DeGeorge, attended the September 17, 1997 meeting at which
Beckwith explained his decision to plaintiff. She has submitted
an affidavit in which she specifically contradicts Harrison's
statement. See Affidavit of Deborah DeGeorge. Harrison claims
to be able to produce other witnesses who can testify about
Beckwith's statements, but he has neither established on this
record that those individuals were present at the meeting nor
offered affidavits from them. Plaintiff's self-serving statement,
viewed in light of his extensive record of dishonesty, does not
suffice to create a genuine issue of disputed fact. See
Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th
Cir. 1992) (stating that "self-serving statements may create a
material dispute about the employee's ability, but do nothing to
create a dispute about the employer's honesty — do nothing in
other words, to establish that the proffered reason is a pretext
14. Defendants are entitled to summary judgment dismissing
plaintiff's claims under Title VII. See Silver v. City Univ.,
947 F.2d 1021 (2nd Cir. 1991) (affirming this Court's grant of
summary judgment when plaintiff presented insufficient evidence
for a Title VII claim).
15. Any charges that plaintiff could have brought under Title
VII pursuant to his first Right to Sue letter, dated April 30,
1998, are now time-barred pursuant to 42 U.S.C. § 2000e-5(f)(1), in
that plaintiff did not timely file a complaint containing the
allegations covered by that letter within 90 days of his receipt
of the letter. See Sousa v. NLRB, 817 F.2d 10, 11 (2nd Cir.
The Clerk of the Court is directed to enter judgment dismissing
the complaint, with costs to defendants.
This constitutes the decision and order of the Court.
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