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Smart v. New York State Dep't of Corrections

September 10, 2008

MARTIN P. SMART, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS, DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

(consent)

DECISION and ORDER

JURISDICTION

On April 7, 2003, the parties to this action consented to proceed before the undersigned. The matter is presently before the court on Plaintiff's motion (Doc. No. 31), filed August 13, 2007, seeking either an order enforcing a stipulation of settlement or, alternatively, an order vacating said stipulation and restoring the case to the trial calendar.

BACKGROUND and FACTS*fn1

On November 25, 2002, Plaintiff Martin P. Smart ("Plaintiff" or "Smart"), then proceeding pro se, commenced this employment discrimination action alleging that in December 1999, Defendant New York State Department of Corrections ("Defendant" or "DOCS"), failed to reinstate Plaintiff to his former corrections officer position from which Plaintiff had resigned four months earlier, in violation of DOCS's policy allowing for former employees to be reinstated to prior positions held within one year of resignation. A Notice of Appearance by Richard H. Wyssling, Esq. ("Wyssling"), on Smart's behalf was filed on January 22, 2004 (Doc. No. 15). Plaintiff had worked for DOCS from 1982 until 1999 when Plaintiff voluntarily resigned to pursue other employment, and then sought reinstatement with DOCS four months later when the new employment position did not work out.

A Stipulation of Settlement and Order filed October 10, 2006 (Doc. No. 30) ("Settlement Stipulation"), provides for Plaintiff's reinstatement to his former employment with DOCS, subject to certain conditions, including, as relevant, that

5. Plaintiff's reinstatement will be without back pay, damages or attorney's fees and must be consistent with all the terms of the collective bargaining agreement and Civil Service law and rules.

6. Plaintiff must undergo a satisfactory medical exam, a background check, and psychological screening.

7. Reinstatement will be to the first available training academy class which plaintiff must successfully complete.

8. Plaintiff will need to serve a 52 week probationary period.

9. Plaintiff will be reinstated without contract seniority.

10. Plaintiff's pay will be that of an entry level trainee until the date when Civil Service has approved his permanent status.

Settlement Stipulation ΒΆΒΆ 5-10. With the filing of the Settlement Stipulation on October 10, ...


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