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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: Page 2


"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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