The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se employment civil rights action is Defendants' motion for summary judgment. For the reasons set forth below, Defendants' motion is granted in part and denied in part, Plaintiff Pitts' claims are dismissed in their entirety, and all of Plaintiff Willis' claims are dismissed except his hostile work environment claim.
A. First Employment Civil Rights Action
On July 8, 1997, Arthur Barksdale, an African-American deputy sheriff in the Onondaga County Sheriff's Department, filed an employment civil rights action against Onondaga County. See Barksdale et al. v. Onondaga County Sheriff's Dep't, 97-CV-0966, Complaint (N.D.N.Y. filed July 8, 1997).*fn1 On October 29, 1997, an Amended Complaint was filed in that action by Mr. Barksdale and some of his fellow deputy sheriffs, including Marvin Pitts and O'Dell Willis. See Barksdale et al. v. Onondaga County Sheriff's Dep't, 97-CV-0966, Amended Complaint (N.D.N.Y. filed Oct. 29, 1997).
In his Amended Complaint, Mr. Pitts asserted two claims: (1) claim of a racially hostile work environment at the Justice Center between May 1, 1987 (the date his employment began with the Sheriff's Department), and July 1, 1997, due to the use of racially derogatory names, the failure to promote African-American deputies and white deputies equally, the failure to discipline African-American deputies and white deputies equally, and the failure to remedy complaints of discrimination; and (2) a claim that "Defendant attempted to terminate [him] for not bringing in a doctor's excuse for an absence." Id. at ¶¶ 15, 20-22, 55-64, 107-24. In addition, Mr. Willis asserted claims of a racially hostile work environment at the Justice Center between October 28, 1987 (the date his employment began with the Sheriff's Department), and July 1, 1997, due to the use of racially derogatory names, the failure to promote African- American deputies and white deputies equally, the failure to discipline African-American deputies and white deputies equally, and the failure to remedy complaints of discrimination. Id. at ¶¶ 15, 20-22, 39, 64-75, 107-124.
On September 5, 2000, Mr. Pitts, through counsel, signed a stipulation of withdrawal of his claims from that action with prejudice. See Barksdale et al. v. Onondaga County Sheriff's Dep't, 97-CV-0966, Stipulated Withdrawal (N.D.N.Y. filed Sept. 5, 2000). On February 8, 2001, United States District Judge Norman A. Mordue issued a Memorandum-Decision and Order dismissing with prejudice (as a sanction for failing to comply with discovery requests) the claims of all remaining Plaintiffs, including the claims of Mr. Willis. See Barksdale et al. v. Onondaga County Sheriff's Dep't, 97-CV-0966, Memorandum-Decision and Order (N.D.N.Y. filed Feb. 8, 2001) (Mordue, J.) (granting defendants' motion to dismiss with prejudice plaintiffs' complaint in its entirety, pursuant to Fed. R. Civ. P. 41[b]).
B. Current Employment Discrimination Action
On July 16, 2004, eleven (11) African-American deputy sheriffs in the Onondaga County Sheriff's Department filed the current employment civil rights action arising out of a variety of incidents that occurred at the Public Safety Building and the Justice Center in Onondaga County over a period of twenty (20) years. (Dkt. No. 1.) On August 5, 2004, they filed an Amended Complaint. (Dkt. No. 3.) Generally, the Amended Complaint alleges that Defendant Onondaga County knowingly permitted a racially hostile work environment to exist and continue. (Id.)
Over the course of the next three years, some of the Plaintiffs agreed to withdraw from the action. As a result, on April 30, 2007, an Order reflecting their dismissal was issued by Judge Scullin. (Dkt. No. 31.) At this time, the only remaining Plaintiffs in this action are O'Dell Willis, who is currently employed by the Onondaga County Sheriff's Department, and Marvin Pitts, who was terminated from the Sheriff's Department in early 1997.
Liberally construed, Plaintiffs' Amended Complaint asserts the following claims by Mr. Willis: (1) between approximately 1987 (when his employment began at the Sheriff's Department) and August 5, 2004 (the date of Plaintiffs' Amended Complaint), Mr. Willis was subjected to a racially hostile work environment and disparate treatment in that he heard African American inmates and deputies, including himself, called racially derogatory names by white deputies; (2) between 1987 and August 2004, he was subjected to a sexually hostile work environment and disparate treatment in that he was subject to offensive sexual remarks and touching by white deputies, which his superiors were aware of; and (3) between 1987 and August 2004, he has been subjected to retaliatory discipline due to his complaints about the foregoing violations. (Dkt. No. 3, ¶¶ 34-39, 97-107.) Furthermore, Plaintiffs' Amended Complaint asserts the following claims by Mr. Pitts: (1) at various points in time up until his termination, Mr. Pitts was subjected to a racially hostile work environment and disparate treatment in that he heard African American inmates and deputies, including himself, called racially derogatory names by white deputies; and (2) at some point in time, he was subjected to disparate treatment in that he was wrongfully terminated while on medical leave because of his race. (Dkt. No. 3, ¶¶ 40-43, 97-107.)
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248 [citation omitted].
As for the genuineness requirement, a dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Id. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted; emphasis added]; see also Fed. R. Civ. P. 56(e)(2).*fn2 Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, "absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) [citations omitted]. Moreover, "an affidavit . . . that, by omission or addition, contradicts the affiant's previous deposition testimony" is insufficient to create a genuine issue of fact. Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996) [citations omitted].
Finally, as this Court has previously observed, "It is well established that issues of credibility are almost never to be resolved by a court on a motion for summary judgment." Cruz v. Church, 05-CV-1067, 2008 WL 4891165, at *4 & n.6 (N.D.N.Y. Nov. 10, 2008) (Suddaby, J.) [emphasis in original; collecting cases]. However, "there is a narrow exception to this well-established rule." Cruz, 2008 WL 4891165, at *4 [citation omitted]. In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the Second Circuit explained that this narrow exception is for testimony by a non-movant that possesses the following two characteristics: (1) it constitutes almost the exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility (because the testimony is incomplete and/or replete with inconsistencies and improbabilities) that, even after drawing all inferences in the light most favorable to the non-movant, no reasonable jury could find for the non-movant. Cruz, 2008 WL 4891165, at *4 & n.7 [collecting cases]. "Again, it must be remembered that the circumstances giving rise to this exception are rare.'" Id. & n.7 [collecting cases].
A. Claims Against the Onondaga County Sheriff's Department
As a preliminary matter,the Court finds that the Onondaga County Sheriff's Department is merely an "administrative arm of the same municipal entity--the County--and thus lack[s] the capacity to be sued." Crews v. County of Nassau, 06-CV-2610, 2007 WL 4591325, at *1, n.1 (E.D.N.Y. Dec. 27, 2007); see also Caidor v. M & T Bank, 05-CV-0297, 2006 WL 839547, at *2 (N.D.N.Y. March 27, 2006) (Scullin, J.).
As a result, the Court dismisses Plaintiffs' claims against the Onondaga County Sheriff's Department. To the extent that any of Plaintiff's claims of municipal liability survive the current motion, the proper party against which those claims may be brought is Onondaga County.
B. Doctrine of Res Judicata
Defendants argue that, as a result of the prior action, the doctrine of res judicata bars all claims asserted by Plaintiff Pitts, and all claims asserted by Plaintiff Willis arising out of incidents that occurred prior to the 1997 lawsuit. In his response, Plaintiff Pitts argues that the doctrine of res judicata does not bar his current allegations because the claims asserted in the 1997 lawsuit were different than those asserted in the current lawsuit. Similarly, Plaintiff Willis argues that "in the prior complaint that was dismissed, [he] did not make any claims about the sexually harassing conduct of white deputies that [he] complain[s] about in this lawsuit, or about the racially hostile conduct of white deputies putting [him] at risk with inmates." Finally, Plaintiff Willis argues that "there is no way these things could have been included in the first lawsuit because they had [not] happened when [he] filed [his] initial complaint with the EEOC [Equal Employment Opportunity Commission]."
"The res judicata principle prevents a plaintiff from litigating claims that were or could have been raised in a prior action against the same defendant." Farbstein v. Hicksville Public Library, 323 F. Supp.2d 414, 423 (E.D.N.Y. 2004) (citing L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 87-88 (2d Cir. 1999) [per curiam]). "Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence." L-Tec Elecs. Corp., 198 F.3d at 88.
"A dismissal with prejudice has the effect of a final adjudication on the merits favorable to defendant and bars future suits brought by plaintiff upon the same cause of action." Nemaizer v. Baker, 793 F.2d 58, 60 (2d Cir. 1986). "Such a dismissal constitutes a final judgment with the preclusive effect of 'res judicata not only as to all matters litigated and decided by it, but as to all relevant issues which could have been but were not raised and litigated in the suit.'" Nemaizer, 793 F.2d at 60 (citing Heiser v. Woodruff, 327 U.S. 726, 735  [other citation omitted]). "A dismissal with prejudice arising out of an agreement of the parties is an adjudication of all matters contemplated in the agreement, and a court order which memorializes this agreement bars further proceedings." Id.
"The dismissal of an action, with prejudice, for failure to comply with discovery orders is [also] a judgment on the merits." Snyder v. Yonkers Public School Dist., 315 F. Supp.2d 499, 502 (S.D.N.Y. 2004) (citing Nasser v. Isthmian Lines, 331 F.2d 124 [2d Cir. 1964]); see also Fed. R. Civ. P. 41(a)(2) ("If the plaintiff fails to . . . comply with these rules [including Fed. R. Civ. P. 37] or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, the dismissal . . . operates as an adjudication on the merits."). Indeed, "[t]he Second Circuit has squarely held that when a first action is dismissed for failure to comply with discovery orders and a second action is brought on the same claim, by the same plaintiff that claim should be barred." Snyder, 315 F. Supp.2d at 502 (citing Browning Debenture Holders' Comm. v. DASA Corp., 605 F.2d 35 [2d Cir. 1972]).
Moreover, dismissal of a Title VII claim in a second action is warranted even where the plaintiff did not have the required "right to sue letter from the EEOC when [his] [first action] was before [the Court]" because, although the Court "could not have adjudicated [the plaintiff's] Title VII claim in [his first action] until [the plaintiff] received h[is] right to sue letter . . . [the] [p]laintiff could have brought [his] Title VII claim before [the Court in his first action]. . . . [by] amend[ing] [his] original complaint to include the Title VII claim within 90 days of receiving that letter." Snyder, 315 F. Supp.2d at 502; see also Woods v. Dunlop Tire Corp., 972 F.2d 36, 41 (2d Cir. 1992) (holding that, to avoid res judicata, the plaintiff could have done the following:
 filed her claim and then sought a stay in the district court pending the outcome of her Title VII administrative proceedings; or  filed her claim, sought a right to sue notice on her Title VII claim from the EEOC after 180 days, and then amended the original complaint to include the Title VII claim), accord, Cieszkowska v. Grayline New York, 01-CV-0128, 2001 WL 1131990, at *4 (S.D.N.Y. Sept. 24, 2001).
Before analyzing the doctrine's application to Plaintiffs' claims, the Court notes that Plaintiffs' claims stemming from the 1997 lawsuit were decided on the merits.
1. Impact of Doctrine on Claims of Plaintiff Pitts
Proceeding to an analysis of the doctrine's application to Plaintiffs' claims, as stated above in Part I.B. of this Decision and Order, Plaintiffs' Amended Complaint asserts the following claims by Plaintiff Pitts: (1) at various points in time up until August 2004, Plaintiff Pitts was subjected to a racially hostile work environment and disparate treatment in that he heard African American inmates and deputies, including himself, called racially derogatory names by white deputies; and (2) at some point in time before August 2004, he was subjected to disparate treatment in that he was wrongfully terminated while on medical leave because of his race. (Dkt. No. 3, ¶¶ 40-43, 97-107.)
With regard to Plaintiff Pitts' claim regarding derogatory names, the Court finds that, to the extent that such a claims arises from derogatory names heard by Plaintiff Pitts at work before September 1997 (when he joined in the 1997 lawsuit), that claim is barred by the doctrine of res judicata. The Court further finds that, because Plaintiff Pitts' employment with the Sheriff's Department was terminated in early 1997, any derogatory names heard by him at work must have occurred before September 1997. As a ...