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February 3, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Plaintiff, appearing pro se, is an African-American male and former letter carrier for the United States Postal Service ("USPS"). He has commenced a number of actions against the USPS, certain of its employees, and/or the National Association of Letter Carriers and certain of its officers or representatives, all relating to Plaintiff's employment by the USPS and/or the termination of that employment. This Order deals with the first two such cases. The first of these lawsuits, which has been assigned docket number 00 Civ. 3167 ("Marshal I") names as defendants the USPS, the National Association of Letter Carriers ("NALC"), NALC Branch 36 (apparently a union local) ("Branch 36"), and individual defendants Desmond Bailey and Kenneth Wavpotich. In Marshall I, Plaintiff principally asserts claims for breach of duty of fair representation and violations of a collective bargaining agreement. He also claims that defendants defamed him and conspired to violate his constitutional rights. The Court has previously held that the complaint in Marshall I will be construed as a hybrid duty of fair representation/breach of collective bargaining agreement action under the Postal Reorganization Act ("PRA"), 39 U.S.C. § 1208(b), (c). See Marshall v. NALC, et. al, No. 00 Civ. 3167, Order at 4-5 (J. Mukasey, April 26, 2000). Plaintiff's second suit, which has been assigned docket number 01 Civ. 3086 ("Marshall II"), refers to the Marshall I complaint and asserts employment discrimination, harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, naming as defendants Kenneth Wavpotich, USPS and Branch 36.

Defendants have moved to dismiss both complaints. Plaintiff has made several motions, including a motion to consolidate Marshall I and Marshall II, a motion to amend the pleadings, a motion for reconsideration, and an "urgent" motion for vacatur of Judge Mukasey's April 26, 2000 decision in Marshall I, which dismissed the complaint in that action without leave to replead to the extent that complaint sought to assert a variety of tort and conspiracy causes of action pursuant to 42 U.S.C. § 1983.

The Court has considered thoroughly all submissions related to these motions and the decision to be rendered reflects such consideration. For the following reasons, Defendants' motions are granted. Plaintiff's motions are denied, and each case is dismissed in its entirety.


Plaintiff's Marshall I complaint was submitted to the Pro Se office of this Court in December 1999. The complaint contained conclusory allegations of violations of 42 U.S.C. § 1983, 1985, 1986, and rights violations in connection with the handling of certain grievances and disciplinary proceedings relating to Plaintiff's employment with USPS, and sought criminal prosecution of some of the defendants. By Memorandum Order dated April 26, 2000, Chief Judge Mukasey dismissed the civil rights claims without leave to replead, dismissed the request for criminal prosecutions as inappropriate, and construed the remaining claims liberally as ones for breach of a collective bargaining agreement and duty of fair representation under the Postal Reorganization Act. Judge Mukasey granted Plaintiff leave to replead in detail the latter claims only instructing Plaintiff that the amended complaint must demonstrate exhaustion of administrative remedies with respect to the remaining claims and that Plaintiff's action was timely.

Plaintiff filed an amended complaint, naming the same Defendants as in the original Marshall I complaint. The Amended Complaint in Marshall I details 1993 "delaying mail" and 1998 "late lunch" disciplinary proceedings and related grievances, and allegations of irregularities in connection therewith. In the amended Marshall I complaint, Plaintiff further alleged conspiracy and, contrary to Judge Mukasey's direction in the April 2000 order, reiterated civil rights claims and asserted a Title VII claim as well. Plaintiff did not allege receipt of, or attach, a right to sue letter. The case was thereafter reassigned from Judge Mukasey to the undersigned.

The Marshall I complaint generally alleges breaches of duty of fair representation and of a collective bargaining agreement in connection with disciplinary actions, grievances and related proceedings arising in the course of Plaintiff's employment with USPS. The complaint further alleges that all of the disciplinary actions and alleged procedural irregularities were part of a conspiracy to deprive Plaintiff of civil rights in violation of 42 U.S.C. § 1983, 1985 and 1986. The complaint alleges a conspiracy which began with the 1993 disciplinary actions and continued through the October 15, 1999, termination of Plaintiff from USPS employment. Plaintiff details the following specific incidents:

(1) Plaintiff describes a "delaying the mail" charge arising from an incident in November 1993. Plaintiff alleges that the union representative did not represent him adequately and that the grievance procedure under the relevant collective bargaining agreement was not followed properly, including exclusion of Plaintiff from a "Step One" grievance proceeding. Plaintiff claims that his supervisor pressed charges to cover up his own misconduct as revealed in Plaintiff's grievances. Plaintiff further claims that a co-worker who was more culpable than Plaintiff was treated more favorably. Plaintiff further alleges a union coverup of the union's misconduct in connection with the charges. Plaintiff alleges concealment of evidence. Plaintiff generally charges conspiracy to deprive him of civil rights. Plaintiff refers to the Due Process and Equal Protection clauses of the Constitution, denial of "equal treatment in disciplinary action," and unspecified "invidious discrimination and violation of rights by discriminatory purposes" in violation of the civil rights statutes. The complaint further describes disciplinary actions taken in March 1994, September 1995, October 1996 and March 1998 with respect to automobile accidents.
(2) Plaintiff describes in detail a "late lunch" charge arising from a April 1998 incident. Plaintiff filed grievances regarding a July 1998 charge. Plaintiff again alleges improper procedures and suppression of evidence in connection with disciplinary and grievance proceedings. Plaintiff asserts a pattern of behavior in a "master plan" to fire an innocent person instead of a co-worker whom the union wanted to keep because the co-worker would have had a hard time finding another job. Plaintiff makes conclusory allegations of discrimination and civil rights violations and conspiracy to commit such violations. Plaintiff further alleges that he filed a complaint regarding his supervisor, Bailey, in August 1998, and filed a grievance regarding union delegates in March 1999.
In January 2001, Plaintiff filed an additional complaint, naming USPS, Wavpotich and Branch 36 as defendants. At Judge Mukasey's direction, the Court docketed the new complaint as number 01 Civ. 3086, and assigned the matter to the undersigned for further proceedings as appropriate. This matter was docketed in April 13, 2001 and is referred to herein as Marshall II. The Marshall II complaint alleges discriminatory conduct on the basis of race consisting of unequal terms and conditions of employment in violation of Title VII, as well as harassment and retaliation. This complaint contains no new factual allegations, referring to the Marshall I complaint for the relevant facts. Plaintiff also attaches an Equal Employment Opportunity Commission ("EEOC") right to sue letter, apparently arising from a 1995 administrative complaint against the USPS. Plaintiff alleges that he was disciplined for delaying the mail and for being involved in two motor vehicle accidents. Plaintiff specifies three incidents: issuance of a 1993 letter of warning, dated December 6, 1993, signed by defendant Wavpotich, (Compl. at A-1,) following an incident of delaying the mail; a 1994 notice of suspension issued on March 10, 1994 following a motor vehicle accident (id. at A-57); and a September 7, 1995 notice of suspension following a motor vehicle accident in 1995 (id. at A-59). Plaintiff argues that these disciplinary measures were acts of discrimination and retaliation for filing a grievance against defendant Wavpotich.


Plaintiff's Motions for Reconsideration and Vacatur of April 20, 2000 Decision in Marshall I
Plaintiff seeks reconsideration or vacatur of the April 20, 2000 Order entered by Judge Mukasey in Marshall I, to the extent it dismissed his conspiracy, defamation and slander claims. Plaintiff argues, in essence, that the Court somehow lost subject matter jurisdiction of these claims (and therefore lacked the power to dismiss them with prejudice) when it failed to agree with Plaintiff that he had stated viable claims for constitutional violations, and that he had intended to assert the defamation and slander claims pursuant to state common law rather than 42 U.S.C. § 1983. (See Pl.'s Oct. 1, 2002 "Urgent Motion").

A motion for reconsideration can be granted if there is an intervening change of controlling law, new evidence becomes available, or there is a need to correct a clear error or prevent manifest injustice. Virgin Atlantic Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). Plaintiff's arguments reveal his frustration with the Court's analysis but fail to identify any valid ground for reconsideration. His requests for reconsideration and/or vacatur of the decision are also untimely, having been raised well after entry of the April 20, 2000 decision in a May 31, 2001 "Notice of Motion" and an October 1, 2002 "Urgent Motion".

Furthermore, Plaintiff's efforts to replead and reargue these claims, as detailed in the Amended Complaint in Marshall I and in his papers opposing the dispositive motions, reveal that he is unable to state viable claims of which ...

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