United States District Court, S.D. New York
January 28, 2004.
EDWARD J. RICHARDSON, Plaintiff -against- CITY OF NEW YORK, Defendant
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff, a former New York City detective of African-American
descent, brings this action pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 200e et seq.,
42 U.S.C. § 1981, 42 U.S.C. § 1983 and on state law grounds to redress
alleged employment discrimination. His employment was terminated
following his conviction on departmental charges. He claims that the
termination was racially motivated, the gravaman of the complaint being
that black police officers are more likely than white officers to be
charged, disciplined and terminated for identical infractions. Cpt ¶¶
15-19 & Ex. 1. The complaint does not allege that plaintiff did not
commit the offenses of which he was convicted. Defendant moves for
summary judgment dismissing the complaint on the ground of issue
preclusion on the theory that the plaintiff is foreclosed from
challenging his termination as racially motivated by the judgment against
him in a previous Article 78 proceeding in which he challenged his
termination on the ground, among others, that it was racially motivated.
It is undisputed that plaintiff brought an Article 78 proceeding
against the defendant City and others in April 1997 in which he sought
annulment of the decision terminating his employment, reinstatement, back
pay, and other relief. Fraenkel Decl. Ex. A. The amended petition
alleged, among other things, that plaintiff's discharge "was disparate
treatment in that other officers similarly situated and/or accused of
conduct far more offensive were imposed far more lenient punishment" and
that "[r]espondents [sic] decision to terminate petitioner was racially
biased in that other non-minority police officers similarly situated
and/or accused of significantly more serious violations were issued
inconsistent and lenient punishments." Id. ¶¶ 27, 31.
Plaintiff was unsuccessful at Special Term, and the Appellate Division
affirmed the dismissal of his petition, writing:
"Respondent's findings that petitioner knowingly
associated with a person he reasonably believed
was engaged in criminal activity, and made false
and misleading statements in an official
Department investigation, are supported by
substantial evidence, including, in particular,
petitioner's own testimony in the official
investigation. No basis exists to disturb
respondent's credibility findings [citation
omitted]. We have considered petitioner's
other arguments, including that the penalty of
dismissal is unduly harsh, and find them to be
without merit." Richardson v. Safir,
258 A.D.2d 328, 328-29, 685 N.Y.S.2d 209, 210 (1st
Dept. 1999) (emphasis added).
As this Court previously has held, where an Article 78 petitioner seeks
annulment of a disciplinary decision on the ground that it was
discriminatory or retaliatory, a determination by the state courts that
the decision was supported by substantial evidence "necessarily implie[s]
rejection of [the] claim that [the] termination was discriminatory and
retaliatory" and thus forecloses a similar contention in a subsequent
federal action. Latino Officers Ass'n of the City of New York, Inc.
v. City of New York, 253 F. Supp.2d 771, 787 (S.D.N.Y. 2003).
Plaintiff seeks to avoid this holding by a conclusory affirmation of
his attorney, which asserts without any supporting evidence that the
issue "was not litigated before either the New York Supreme Court or the
Appellate Division," that plaintiff "had no opportunity to present proof
on this issue, and [that] neither party presented any proof on the issue
as part of the Article 78 Proceeding." ZelmanAff. ¶ 3.
The parties are directed to submit, on or before February 4, 2004,
affidavits or declarations attaching each paper and exhibit filed by any
party and any transcripts of any court proceedings in the Article 78
proceeding. By the same date, the parties shall submit memoranda of law
addressing the question whether the plaintiff's claim, in the Article 78
proceeding, that the decision to terminate him was racially biased, was
actually litigated and necessarily decided even if, as plaintiff
contends, neither party presented any proof on that issue (apart from
plaintiff's verified amended petition).
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