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July 29, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


Plaintiff Gerald Harrison ("Harrison") brings this action alleging that his erstwhile employer, defendant Arlington Central School District (the "District"), discriminated against him on the basis of his race. Harrison was a bus driver/custodial worker for the District from November 1986 to March 1997. He was in the classified service of the State of New York and as such was covered by the New York Civil Service Law.

After reviewing the record, I find that the following facts are undisputed:

Prior to September 1996, in addition to his regular duties, Harrison was assigned to after-school activity and sports runs, which provided him with the opportunity to receive unscheduled overtime. In the late Spring of 1996, Harrison's supervisor, defendant Director of Transportation George Beckwith ("Beckwith") discovered that plaintiff had been padding his overtime sheets. When the schedule of assignments was handed out for the following school year, Harrison was no longer given any unscheduled overtime. At a meeting held on September 17, 1996, Harrison was advised that the reason for this change was the padding of his overtime during the prior year. Harrison was also told that he would only be given assignments that excluded the opportunity for unscheduled overtime, so his future activities could be monitored. His union representative, Deborah DeGeorge, was present at this meeting.

In or about September 1997 — one year after he was denied overtime runs — Harrison applied for the position of "Relief Driver." Because this particular position presented many opportunities for unscheduled overtime, Beckwith viewed Harrison as an unsuitable candidate and refused to interview him. At a meeting dated September 17, 1997, Beckwith informed Harrison of this decision. Ms. DeGeorge, plaintiff's Union representative, was present at this meeting. According to Ms. DeGeorge, Beckwith informed Harrison at that meeting that he (plaintiff) could not be trusted in light of his prior padding of time sheets, and stated that he would only be offered work that the District could monitor.

Moreover, Beckwith was aware of another circumstance that rendered Harrison unfit for this position, although he chose not to reveal it at that time. At or about the same time Harrison made his application, the District was contacted by a representative of State Farm Insurance Company, Harrison's insurance provider. The claims analyst informed Mr. Raymond Southard of the District that there were questions regarding Harrison's application for lost wages following an automobile accident he suffered on January 1, 1997. Harrison had put in a claim for lost wages for the period January 6, 1997 through July 28, 1997, and he was paid in full on that claim. However, plaintiff had returned to work on April 7, 1997. Thus, State Farm had paid him some $7,500 more than he was entitled to receive. When it appeared that the matter would come to light, Harrison convinced a stenographer at the District's Middle School to type a letter to the carrier on District letterhead, confirming that his back-to-work date was July 29, 1997. The secretary subsequently resigned her position when confronted with her participation in Harrison's fraud.

Not so Mr. Harrison. In an act of unmitigated chutzpah, he filed a union grievance against the District on October 21, 1997 (the "Grievance"), this time charging that Beckwith's decision to deny him the position of Relief Driver was made on account of his race.

State Farm went to the Dutchess County District Attorney with the results of its investigation. On March 3, 1998, Harrison was arrested and charged with Falsifying Business Records, Grand Larceny in the Third Degree and Insurance Fraud. He pleaded guilty to Insurance Fraud in the Fifth Degree on April 28, 1998, and was sentenced to a conditional discharge conditioned on his making restitution. By pleading guilty, Harrison admitted that he had committed the criminal act charged.

The District also commenced an investigation into possible disciplinary charges arising out of the false insurance claim. The District concluded that Harrison had used District personnel and facilities to bring about an insurance fraud. In the course of the investigation, the District also learned that Harrison had used District phones to make long distance phone calls to Jamaica. On November 5, 1997, he was suspended without pay, pending completion of the investigation into possible criminal conduct. He was charged with misconduct later in the month, and after a disciplinary hearing conducted pursuant to Section 75 of the New York Civil Service Law, he was found guilty of misconduct. The Hearing Officer made this finding despite Harrison's contention, which was raised during the hearing, that the District had preferred disciplinary charges against him in retaliation for his filing of the union grievance concerning Beckwith's decision to deny him the position of Relief Driver. (It should be noted that the Hearing Officer did not make a specific finding of non-retaliation in the face of the District's objection to his doing so, on the ground that a Section 75 hearing was not the proper forum for such a claim.) The Hearing Officer recommended Harrison's dismissal. The District dismissed him effective March 24, 1998. Despite his claim that the disciplinary hearing was a pretext to procure his termination, Harrison did not bring an Article 78 proceeding challenging this decision, either.

After the hearing but prior to the Hearing Officer's determination, Harrison filed a second charge of discrimination with the SDHR and the EEOC, on January 21, 1998 ("Charge 2"). This charge alleged that the Section 75 Civil Service disciplinary proceedings were commenced in retaliation for his filing of complaints of discrimination — namely, Charge 1 and the Grievance. Harrison also charged that the District had denied him the position of Relief Driver on account of his race.

On July 27, 1998, Harrison filed the instant lawsuit. Although he had received a Right to Sue letter only with respect to Charge 1, his pleading did not complain of the matters covered by that charge. Instead, it complained of the matters covered by Charge 2, as to which no Right to Sue letter had yet been issued. Thus, given the precise charges made within the four corners of the pleading — none of which related to the matters raised in Charge 1 — the complaint was premature at the time it was filed. However, on July 30, 1998, the SDHR dismissed Charge 2 for lack of probable cause, based on all the above matters. Again, Harrison took no appeal by way of an Article 78 proceeding. The EEOC adopted the SDHR's finding of no probable cause and gave Harrison, his Right to Sue letter, as required by law, on September 2, 1998. See Ex. P attached to the Southard Affidavit.

Harrison amended his complaint on October 26, 1998, to include a claim under 42 U.S.C. ยง 1983. The amended complaint does not refer to the Right to Sue Letter that pertains to Charge 2. This is obviously due to the fault of plaintiff's counsel, and I ...

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