No. 11-2964-cv Farraj v. MTA, et al. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 6 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, 7 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 8 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 9 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 10 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC 11 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 12 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 13 REPRESENTED BY COUNSEL. 14 15 At a stated term of the United States Court of Appeals for the Second Circuit, held at 16 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 17 York, on the 24 thday of October, two thousand twelve. 18 19 PRESENT: JON O. NEWMAN, 20 GERARD E. LYNCH, 21 RAYMOND J. LOHIER, JR., 22 Circuit Judges. 23 24

———————————————————————— 25 26 MICHAEL FARRAJ, 27 Plaintiff-Appellant, 28 29 v. No. 11-2964-cv 30 31 METROPOLITAN TRANSIT AUTHORITY OF NEW YORK, 32 NEW YORK CITY TRANSIT, NEW YORK CITY TRANSIT 33 AUTHORITY, METROPOLITAN TRANSIT AUTHORITY 34 NEW YORK CITY TRANSIT, 35 Defendants-Appellees. 36 37

———————————————————————— 38 39 FOR APPELLANT: LINDA M. CRONIN (Christopher F. Bellistri, on the brief ), 40 Cronin & Byczek LLP, Lake Success, New York. 41 42 FOR APPELLEE: ROBERT KENNETH DRINAN (Joyce Rachel Ellman, on 43 the brief ), Office of the General Counsel, New York City 44 Transit Authority, Brooklyn, New York. 451 Appeal from the United States District Court for the Eastern District of New York 2 (Jack B. Weinstein, Judge ). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Michael Farraj appeals from the district court’s order dismissing his claims of denial 6 of due process and equal protection under 42 U.S.C. §§ 1983 and 1985 and the New York 7 State Constitution, New York State Executive Law § 296, New York State Correction Law 8 § 752, and the Administrative Code of the City of New York § 8-107. SeeFarraj v. Metro. 9

Transit Auth. , No. 11-CV-0574, 2011 WL 2580198 (E.D.N.Y. June 28, 2011). We assume 10 the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 11 Farraj drove a bus for defendants fro m 1996 until 2009. In August 2009 Farraj was 12 criminally charged with participating in an illegal gambling operation. Defendants 13 subsequently suspended Farraj without pay, and sent him a Disciplinary Action Notification 14 stating that he had violated multiple MTA/NYCTA rules, detailing the offending conduct, 15 and charging him with “Gross Misconduct and Conduct Unbecoming a Transit Employee.” 16 In February 2010 Farraj pleaded guilty to the gambling charge, a felony, and was sentenced 17 to three years’ probation and a civil forfeiture of $150,304. Farraj remained suspended until 18 his June 2010 arbitration, when an impartial arbitrator, after a hearing, sustained defendants’ 19 proposed penalty of discharge pursuant to Article 11, Section 2.1.C.19.c of the Collective 20 Bargaining Agreement (“CBA”) governing his employment. That section provides that an 21 arbitrator shall affirm a decision to dismiss an employee who is charged with behavior 22

2“which, if proved in Court, would constitute a felony . . . except if there is presented . . . 1 credible evidence that [dismissal] is clearly excessive in light of the employee’s record and 2 past precedent in similar cases.” 3 Farraj argues on appeal that Section 2.1.C.19.c violates the Equal Protection Clause 4 because it furthers defendants’ “impermissible policy of discharging ‘ex-felons’ simply 5 because they are ‘ex-felons.’” Farraj argues th at pursuant to Furst v. New York City Transit 6 Authority , defendants are required to “demonstrate some relationship between the 7 commission of a particular felony and the inability to adequately perform a particular job” 8 before “excluding ex-felons as a cla ss from employment.” 631 F. Supp. 1331, 1338 9 (E.D.N.Y. 1986). 10

We need not decide whether Furst , which of course is not binding on us, correctly 11 states the law. Assuming arguendo that a governmental policy that automatically terminated 12 the employment of convicted felons would violate the Equal Protection Clause, this case does 13 not present us with such a policy. Defendants’ policy is individuated and does not require 14 automatic termination of felons. First, the di sciplinary charge did not accuse Farraj of being 15 convicted of a felony, but with the violation of specific employment rules. Second, Section 16 2.1.C.19.c of the CBA does not require dismissal of all convicted felons, but permits the 17 arbitrator to weigh the facts and decide whether dismissal would be “clearly excessive” on 18 the facts of the particular case. The arbitrator concluded that dismissal was not inappropriate 19 on these facts, which included that Farraj had committed parts of his illegal conduct on MTA 20 premises and while wearing clothing identifying him as an MTA employee. 21

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3Farraj also argues that he was unfairly treated differently from a fellow employee, 1 who was charged as part of the same gambling scheme but was later reinstated as a bus 2

driver. However, Farraj’s own pleading demonstrates that he and the other employee were 3 not similarly situated. Farraj’s complaint acknowledged that the purported comparator was 4 granted a deferred prosecution and was ordered to forfeit much less money ($6,000, as 5 compared to Farraj’s $150,304), apparently because he made less profit from the gambling 6 scheme. To the extent Farraj contends that he was denied equal protection as compared to 7 his fellow-employee, that claim was properly dismissed. See Vill. of Willowbrook v. Olech , 8 528 U.S. 562, 564 (2000) (holding that to bring a successful equal protection claim as a 9 “class of one,” a plaintiff must allege that he “has been intentionally treated differently from 10 others similarly situated and that there is no rational basis for the difference in treatment”). 11 For the foregoing reasons, the judgment of the district court is AFFIRMED. 12

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15 16 17

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