Summary
granting individual defendant summary judgment where plaintiff alleged defendant made racially-charged comments, but “no reasonable fact finder would conclude that [defendant] caused [plaintiff's] termination”
Summary of this case from White v. Pacifica FoundationOpinion
No. 04 Civ. 5108 (PAC).
December 16, 2005
MEMORANDUM DECISION AND ORDER
Steven C. Isaacs ("Plaintiff" or "Isaacs"), an African-American male and a former employee of the New York City Department of Probation ("DOP"), brings this Complaint against DOP, the City of New York (the "City"), and, in their individual capacity, DOP First Deputy Commissioner Richard Levy ("Levy") and DOP Deputy Commissioner Frank Marchiano ("Marchiano") (collectively "the Defendants").
Isaacs asserts four claims under Title VII, 42 U.S.C. § 2000(e)et seq., and 42 U.S.C. §§ 1981 and 1983 alleging: that Defendants violated Plaintiff's First Amendment rights under the U.S. Constitution by retaliating against him because he spoke out on matters of public concern; that Defendants violated Plaintiff's Fourteenth Amendment rights under the U.S. Constitution by discriminating against Plaintiff on the basis of race, "without substantive and procedural due process" thereby depriving Plaintiff of "property and liberty interests rights" and that Defendants violated Plaintiff's equal protection rights as well; that Defendants violated 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e) by subjecting Plaintiff to "racially disparate disciplinary matters" and "financial incentives;" and, that Defendants violated 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e) by retaliating against Plaintiff because Plaintiff reasonably opposed the alleged racial discrimination.
Defendants move for summary judgment on all claims, which the Court grants in part and denies in part.
FACTS
Isaacs commenced work on or about August 12, 2002 as an Assistant Commissioner for Program Services for DOP. Isaacs's chief task in his new assignment was to implement a new initiative for DOP: the establishment and management of DOP's Resource Development Units ("RDUs"). The RDUs were to provide borough-based assistance and resources to Probation Officers regarding such social services as drug treatment and employment programs, rather than through the then current centralized system. Isaacs's immediate supervisor was then-Deputy Commissioner Richard White ("White"), an African-American male.
In late September 2002, six weeks after he started at DOP, Isaacs attended a meeting at which individual defendant Marchiano and several other DOP employees were present. Marchiano directed the following statement to Isaacs: "You know what, I'm going to start the Rat Pack over."
The parties dispute whether Marchiano made this or other similar comments just once or more than once. Isaacs believed this remark to be an obnoxious reference to his race and immediately responded to Marchiano by stating "Don't even think about it." Marchiano then stated "How did you know . . . I was going to ask you if you want to be Sammy Davis, Jr.?" Isaacs further claims that soon after White, Isaacs's supervisor, joined the meeting and Marchiano informed him that "[Isaacs] does not want to join the Rat Pack." White allegedly responded: "I don't blame him. I do not want to be Sammy Davis, Jr. either." (Compl. ¶¶ 8(e)-8(h).)
Some time after Isaacs began working at DOP, in September or October of 2002, White informed Isaacs that he needed to work past 5 p.m. Isaacs alleges that his white co-workers did not have to work after 5 p.m.
The parties also dispute the nature of this conversation. Isaacs claims that DOP's senior management wanted him to work longer hours even though plaintiff's white manager colleagues regularly worked from 9am to 5pm. Defendants assert that White merely asked Isaacs to adjust his hours to come in later and stay later to enable White to confer with Isaacs, since White was often in the field and out of the office during the early part of the work day.
On or about October 28, 2002, Isaacs observed a list of current DOP staff, which showed their current and proposed salaries pending approval. Isaacs maintains that most of the names on the salary increase list were white employees and that he "vociferously complained" about the lack of any African Americans on the list. (Compl. ¶ 8(m).)
Isaacs claims that he complained about the alleged disparate salary raises to White. (Declaration of Eric Eichenholtz in Support of Defendants' Motion for Summary Judgment, Ex. C (Isaacs Dep. 165-69) [hereinafter Defs.' Decl.].) White testified by affidavit that he did not recall ever having a conversation with Isaacs concerning disparate treatment based on race concerning salaries or raises of DOP employees. (Defs.' Decl., Ex. G, at 5.)
In February 2003, DOP considered terminating Elton Maynard, another African-American male employee, as Director of Personnel at DOP. Isaacs claims that he opposed Maynard's termination and suggested instead Maynard's transfer to an RDU. While preserving Maynard's job, Isaacs claims it was in fact a demotion and discriminatory at that.
The parties also dispute the circumstances surrounding Maynard's transfer from Chief of Personnel to Director of the Bronx RDU.
Defendants maintain that in February 2003, DOP Commissioner Martin F. Horn ("Horn") met with senior staff to assess progress. Defendants assert that, as part of that evaluation, DOP senior management discussed problems with Isaacs's performance. Defendants claim that following that meeting and additional discussions concerning Isaacs, Horn decided to terminate Plaintiff. On or about March 12, 2003, Isaacs met with Levy and White. During this meeting, Levy told Isaacs that he was being terminated. Following his termination, Isaacs met with Horn on April 1, 2003 to discuss his termination. Subsequently, Horn offered Isaacs a position at the New York City Department of Correction ("DOC") as Deputy Director of Equal Employment Opportunity, where he is currently employed. Isaacs never left the City payroll during his change in employment from DOP to DOC, but his current salary is approximately $30,000 below his initial salary.
Isaacs contends that his termination was part of a "general clear-out of high-level blacks at the DOP," (Compl. ¶ u,) which also included the transfer of Maynard and the eventual transfer of White to DOC.
Defendants maintain that White's transfer to DOC, a far larger City agency, with the title of Deputy Commissioner for Investigations, Trial and Litigation, is in fact a promotion. It occurred at the time that DOP Commissioner Martin Horn was appointed to be DOC Commissioner in addition to his duties as DOP Commissioner.
DISCUSSION
I. Defendants' Motion to Dismiss the Action Against DOP
Defendants move to dismiss as to DOP because DOP may not be sued in its individual capacity. Under Chapter 17, Section 396 of the New York City Charter, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter, § 396. Under this provision of the Charter, individual City agencies may not be sued, unless authorized by law. See Morris v. New York City Dep't of Sanitation, No. 99 Civ. 4376, 2003 WL 1739009, at *2 (S.D.N.Y. Apr. 2, 2003). DOP is a City agency that has not been authorized as a suable entity by law. All of Isaacs's claims against DOP are DISMISSED.
At Oral Argument, plaintiff conceded that his claim against DOP should be dismissed. Oral Argument Tr. 19:16-25, Dec. 2, 2005.
II. Summary Judgment Standards
A motion for summary judgment shall be granted "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). Summary judgment should only be granted if "the nonmoving party `has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof'." Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (citation omitted).
The Court "resolve[s] all ambiguities, and credit[s] all rational factual inferences, in favor of the plaintiff," Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). Summary judgment should not be granted where issues of fact are genuine and "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The Court should, thus, grant summary judgment only "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994) (citation omitted). "A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Id. (citations omitted).
III. Race Discrimination Claims Under Title VII and § 1983
Defendants move to dismiss Isaacs's claims of Title VII and § 1983 violations for alleged disparate treatment and retaliatory termination based on race against the City of New York, Levy, and Marchiano.
A. Defendants' Motion to Dismiss Title VII Claims Against Levy and Marchiano
Title VII authorizes causes of action against "employers" — that is, the entity that actually employs or employed the plaintiff. 42 U.S.C. § 2000e(b) (defining "employer"). "[I]ndividuals are not subject to liability under Title VII."Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (citation and internal quotation marks omitted); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (same) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Plaintiff conceded at Oral Argument that these claims cannot stand. (Oral Argument Tr. 20:8-9, Dec. 2, 2005.) Accordingly, Isaacs's Title VII claims against Levy and Marchiano are DISMISSED.
B. Defendants' Motion to Dismiss Section 1983 and Title VII Discriminatory and Retaliatory Termination Claims Against the City of New York
1. Discriminatory Termination
The Supreme Court set out the allocation of the burden of production and the order for presentation of proof in Title VII discriminatory termination cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Supreme Court has also held that the McDonnell Douglas burden-shifting framework "is fully applicable to racial-discrimination-in-employment claims under 42 U.S.C. § 1983." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 n. 1 (1993). This framework entails the following:
In order to make out a prima facie case of racial discrimination in the termination of employment in violation of Title, VII, a plaintiff is required to adduce some evidence that would permit a fact finder to infer, inter alia, that the termination occurred under circumstances giving rise to an inference of discrimination. Once the plaintiff satisfies his initial, minimal, burden, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the termination supported by admissible evidence which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of he employment action. IF the employer carriers this burden, the burden shifts back to the plaintiff to demonstrate by competent evidence that the legitimate reasons offered by the defendant were not its trust reasons, but were a pretext for discrimination. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at the times with the plaintiff, and if the plaintiff has failed to show that there is evidence that would permit a rational faultfinder to infer the he employer's proffered rationale is pretext, summary judgment dismissing the claim is appropriate.Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (citations and internal quotations omitted).
Defendants maintain the Isaacs has not established a prima fact case. In disparate treatment claims involving the discharge of an employee, the plaintiff must show that (1) he was a member of a protected class; (2) he was qualified for the position; (3) he was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of discrimination.Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991) (citations omitted). Defendants contend that plaintiff cannot satisfy the second and fourth prongs of this test.
Resolving all ambiguities, and crediting all rational factual in favor of the plaintiff, Isaacs has presented sufficient evidence that he was qualified for the position and satisfied the second prong, as this showing presents a "minimal" burden. With regard to the fourth prong. however, even with a "minimal" burden, it is difficult for Isaacs to show that the discharge occurred under circumstances giving rise to an inference of discrimination.
First, the same individuals who participated in the decision to hire him — Levy, White, and Horn — also participated in the decision to fire him and it occurred within a short period of time ( i.e., eight months).
Although each case must involve an examination of all the circumstances, some factors strongly suggest that invidious discrimination was unlikely. For example, when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially so when the firing has occurred only a short time after the hiring.Grady v. Affiliated Cent., Inc, 130 F.3d 553, 560 (2d Cir. 1997).
Isaacs attempts to avoid this by asserting that Marchiano, as to whom he attributes discriminatory animus, also participated in the termination decision. It is far from clear that Marchiano had any role, but even if he did it is immaterial because Isaacs concedes that Horn made the final decision. Isaacs testified that he had not heard Horn make any discriminatory or otherwise inappropriate remarks.
Second DOP replaced Isaacs with another African-American male, Paul Henderson ("Henderson"). Isaacs quibbles that Henderson has a different (and lower) title: Director of Program Services as opposed to Assistant Commissioner of Program Services. (Defs.' Decl. Ex. O (Levy Decl. ¶ 7).) Isaacs does not dispute, however, that Henderson has assumed the primary responsibility for the tasks previously assigned to him — oversight of the RDUs. The Court does not deem the different in title to be material.
Although "[t]he Second Circuit has rejected the per se rule followed in certain other circuits that a plaintiff in a discrimination case must demonstrate that she was replaced by a person outside the protected class." Umansky v. Masterpiece Int'l Ltd, 96 Civ, 2367, 1998 U.S. Dist. LEXIS 11775, at * 8 (S.D.N.Y. 1998). "Nonetheless, the fact that plaintiff was replaced by another [person from the protected class] weighs heavily against an inference that she was discriminated against [on the basis of race]." Id. Third, it should be noted that, subsequent to Isaacs's termination at DOP, Horn offered, and Isaacs accepted, a position with DOC, although with admittedly lower pay. While the Second Circuit has noted that even "lateral" moves can constitute adverse employments actions, see De La Cruz v. New York City Human Res. Admin., 82 F.3d 16, 21 (2d Cir. 1996), given the totality of the evidence in the record in this case and Isaacs's own testimony regarding Horn and the fact that he does not attach may racial animus of Horn, this fact further vitiates in inference of discriminatory termination.
Moreover, assuming Isaacs did assert a prima facie case, Defendants have nonetheless articulated legitimate, non-discriminatory reasons for terminating Isaacs, and Isaacs has failed to show that those reasons are pretextual. Defendants point to two critical deficits in Issacs's performance. First, DOP senior management found that Isaacs required an inappropriate leave of supervision an oversight in order to ensure that he carried out his job requirements Horn testified as follows:
He needs a great deal of direction. He needed to be told very, very concrete specific terms do A, do B, do C. He had a lot of difficulty taking an idea from the state of being an idea and bringing it to fruition as a completed project. (Defs.' Decl., Ex. D (Horn Dep. at 13:8-13 (Apr. 13, 2005)).) Horn also testified that he thought Isaacs would be better suited to the DOC position because "[i]t did not require the degree of originality and creativity that the other job did." (Id. at 25:24-26:3.) Horn noted that although he received information from other senior management officials regarding Isaacs's performance, "[he] had certainly made [his] own observations." (Id. at 13:23-24.) Horn's assessment was corroborated by Isaacs's own testimony recalling the April 1, 2003 meeting Isaacs had with Horn. Isaacs testified that Horn at the meeting told Isaacs that he could not "free think." (Defs.' Decl., Ex. C (Isaacs Dep. at 115:14 (Feb. 15, 2005)).) Although Isaacs stated that he "respectfully disagree[d]," (id. 115:22,) he does not present any other evidence that these assessments were false or pretextual.
Second, Defendants contend that Isaacs failed to be sufficiently productive. Horn testified that "[t]hings never seemed to get done." (Defs.' Decl., Ex. D at 15:13-14.) In an effort to demonstrate pretext, Isaacs points to budgetary constraints and bureaucratic mix-ups for which he was not responsible. But these are just the types of problems that Horn could reasonably expect that an Assistant Commissioner ought to be able to overcome in order to achieve the Agency's goal. The fact that RDUs were fully staffed prior to Isaacs's termination does not gainsay that it took longer than the Agency head wanted, or required too much supervision. Notably, Isaacs's own supervisor, another African-American male, also expressed frustration with Isaacs's performance to Horn. (Id. at 18:13-19:7.)
Given the evidence in this case — that Horn, Levy, and White, an African-American male, hired Isaacs and that Horn (the admittedly final decision maker), with input from senior management including White, fired Isaacs; that Isaacs's employment was limited to eight months; that Isaacs never attributed any discriminatory animus to Horn or to Levy; that Horn offered Isaacs another position at DOC, which Isaacs accepted and which Isaacs holds to this day; that DOP put another African-American male in charge of the most important responsibility that had been assigned to Isaacs (oversight of the RDUs) — and in viewing the facts in the light most favorable to plaintiff — e.g., that another senior DOP official, Marchiano, had made objectionable race-based comments and that plaintiff had spoken out against perceived racial disparities in salary increases and the change in position of Maynard — it is clear that no rational trier of fact could find that the reasons proffered by Defendants for the termination are merely pretextual. For these reasons, Plaintiff's claims for discriminatory termination under § 1983 and under Title VII for race discrimination are DISMISSED.
Isaacs contends that Marchiano's role in the decision to terminate Isaacs is a genuine issue of material fact and that Marchiano was motivated by illegal discriminatory reasons to recommend that Isaacs be terminated. While at times Isaacs attempts to downplay Horn's involvement in the decision to terminate Isaacs, Horn testified that he drew his own conclusions. Isaacs also concedes that Horn was the final decision maker, and Isaacs does not allege that Horn himself harbored discriminatory animus against him.
2. Retaliatory Termination
To survive a summary judgment motion on a retaliatory claim, a plaintiff must make four showings: (1) he must show that he had previously engaged in activity protected by Title VII; (2) he must show that an employer was aware of this activity; (3) he must have suffered an adverse employment action; and (4) a causal connection must exist between the protected activity and the adverse employment action. Manoharan v. Columbia Univ. Coll. of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Isaacs argues that the "protected activity" that he engaged in was: objecting to Marchiano's "rat pack" remarks; objecting to perceived racial disparities in salary increases related to the RDUs; and, in February 2003, opposing DOP's decision to remove Maynard from his position as DOP Chief of Personnel. DOP terminated Isaacs on or about March 12, 2003. It appears that Isaacs suggests, without expressly arguing, that these activities by Isaacs resulted in a perception that he was not a "good fit" (as relayed to him by Levy when he was terminated) and that he was not a "team-player," (Pl.' Mem. Opp'n Summ. J. 18,) and that Defendants' reactions to and treatment of him, in this context, is sufficient to meet a Title VII retaliatory claim. For all of the reasons cited above, the Court finds that Isaacs has not met his burden in showing that the termination was retaliatory under the Title VII framework. Moreover, Isaacs does not cite to any of the Title VII retaliatory termination case law to assist the Court in further evaluating his contentions.
Accordingly, Plaintiff's claims under § 1983 and Title VII for retaliatory termination against the City of New York, Levy, and Marchiano are DISMISSED.
IV. Claims Under Sections 1981 and 1983 as Against the City of New York
Defendants move to dismiss Isaac's claims against the City of New York under 42 U.S.C. §§ 1981 and 1983. The Supreme Court has held that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Department of Soc. Serv., 436 U.S. 658, 694 (1978). "It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. "The `official policy' requirement was intended to distinguish acts of the municipality from acts of the employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembauer v. City of Cincinnati, 475 U.S. 469, 479-30 (1986) (emphasis in original); see also id. ("recovery from a municipality is limited to acts that are, properly speaking, acts `of the municipality' — that is, acts which the municipality has officially sanctioned or ordered").
The Supreme Court in Pembauer v. City of Cincinnati — a decision on which Isaacs places great reliance — further stated that "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Id. at 480. This can occur with the instance of a single decision that constitutes an act of official governmental policy, such as, but not limited to, legislative actions. See id. (citing examples of legislative acts). The Pembauer Court explained the circumstances in which an "official policy" can occur as follows:
[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.
. . .
Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality will be held liable. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.Id. at 481-83 (citations omitted) (emphasis added).
The question then becomes whether, under Pembauer, Commissioner Horn's decision to terminate Isaacs can be deemed to be "official policy" under "appropriate circumstances" for purposes of Monell liability. Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983) ("The difficulty . . . lies in identifying those officials whose actions, because they may fairly be treated as the municipality's own actions, establish policy."). Elsewhere in Plaintiff's papers and at Oral Argument, plaintiff's counsel argued that the decision to terminate Isaacs was made, alternately, by Levy, by Levy with input from Marchiano, and by Commissioner Horn. In Plaintiff's brief, however, Plaintiff argues as follows: "we note that the decision to terminate Plaintiff was apparently made by a high-level policy maker, the Commissioner of the Department of Probation, Martin Horn." (Pl.'s Mem. Opp'n Summ. J. 22.) Isaacs further argues that "there is little doubt that Commissioner Martin Horn occupies a position to make and set policy [sic] municipal policy on terminations from the Department of Probation." (Id. at 23.)
The Second Circuit recently conducted a Pembauer analysis inBack v. Hastings on Hudson Union Free School District, 365 F.3d at 107. Under Back, assuming Horn is the final policymaker in the context of this case, Isaacs must in addition allege that Horn discriminated against Isaacs or approved of the alleged discriminatory actions and views of Levy and Marchiano. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d at 128. Isaacs does not allege that Horn engaged in any discriminatory conduct and testified at his deposition that he had never heard Horn make any comments of a racially derogatory nature or any other comments, which Isaacs believed to be inappropriate. (Defs.' Decl. Ex. C (Isaacs Dep. 64:1-9).) Short of such conduct, Isaacs must allege that Horn "evinced such `deliberate indifference' . . . as to show that `the defendant intended the discrimination to occur'." Back, 365 F.3d at 128 (citation omitted). Nowhere in Isaacs's papers does he so allege. But see Rookard v. Health and Hosps. Corp., 710 F.2d at 46 (pre-Pembauer holding that "on the present record" adverse employment actions by high-level municipal corporation employees established policy). Thus, Isaacs cannot base any Monell claim on "official policy."
For purposes of this motion, the Court assumes Horn to be a policy maker. Some courts in this District have held that agency commissioners, such as Horn, do not engage in "official policy" when they terminate employees. See, e.g., Hueston v. City of New York, 00 Civ. 9512, 2005 U.S. Dist. LEXIS 253, at *44 (S.D.N.Y. Jan. 10, 2005) (citing N.Y. City Charter, §§ 814(d), 817) ("Final responsibility for policy decisions on personnel matters is vested in the City's Personnel Director."); Soto v. Schembri, 960 F. Supp. 751, 759 (S.D.N.Y. 1997) ("[C]ourts in this Circuit have held that the Mayor, the City Council and the Personnel Director are the final policymakers with regard to personnel decisions, not agency heads."); Costello v. McEnery, 91 Civ. 3475, 1994 WL 524980, at *5 (S.D.N.Y. Sept. 26, 1994) (same); Davis v. City of New York, 86 Civ. 6345, 1990 WL 165763, at * 12 (S.D.N.Y. Oct. 22, 1990) (same). The Second Circuit has not issued any decision directly on point. Because the Court need not, it does not reach this issue.
It appears, but is not clear, that Isaacs also argues that he can demonstrate Monell claims based on custom. Unlike a municipal policy, "[a] municipal `custom,' . . . need not receive formal approval by the appropriate decision-maker — `an act performed pursuant to a "custom" that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law'." Davis v. City of New York, 228 F. Supp. 2d 327, 337 (S.D.N.Y. 2002) (citing Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997)). The difficulty with the argument is the only claim of this "widespread" practice is Isaacs's termination and the alleged adverse employment action against Maynard.
Other than arguing that Monell claims can be sustained under Pembauer, the sum total of Isaacs' argument regarding municipal liability for §§ 1981 and 1983 claims is as follows:
Moreover, in attempting to terminate Elton Maynard, without any real justification for doing so, defendants manifested a policy and practice of wrongfully terminating African-Americans. Under FRE 404(b), defendant's mistreatment of Maynard is admissible to show that they had an intent to similarly mistreat Plaintiff because of his race.
(Pt.'s Mem Opp'n Summ. J. 23.)
Initially, Isaacs claimed that the transfer of Isaacs's African-American supervisor, White, to the New York City Department of Correction was also part of a "general clear-out of high-level blacks at DOP." (Compl. ¶ 8(u).) At Oral Argument, plaintiff's counsel conceded, in effect, that Isaacs could not rely on White as an example of the "clear-out," (Oral Argument, Tr. 35 (Dec. 2, 2005)), as it appears that White voluntarily transferred to DOC and that the transfer constituted either a voluntary lateral move or a promotion.
Two incidents, even if both occurred, do not rise to the level of "custom." See Davis v. City of New York, 228 F. Supp. 2d at 346 ("[T]wo incidents of unconstitutional conduct by low-level employees in a city agency with over 35,000 employees can never provide a reasonable basis for finding a widespread or well-settled custom." (emphasis omitted)). Thus, Isaacs has failed to demonstrate Monell liability under either "policy" or "custom." Accordingly, all of Isaacs's § 1981 and § 1983 claims as against the City of New York are DISMISSED.
V. Defendants' Motion to Dismiss Plaintiff's Due Process Claim
Isaacs concedes that as a provisional employee, he had no property interest in his employment at DOP and thus no constitutional right to continued employment. (See Pl.'s Mem. Opp'n Summ. J. 23 n. 10.) Isaacs's due process claim contained in the second cause of action is thus DISMISSED.
VI. Sections 1981 Claims Against Levy and Marchiano
Defendants move to dismiss the § 1918 claims against Levy and Marchiano; the § 1981 claims against the City of New York have been previously dismissed on Monell grounds.
In order to make out a claim for individual liability under § 1981, "a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action. . . . [P]ersonal liability under section 1981 must be predicated on the actor's personal involvement." Patterson, 375 F.3d at 229 (citation omitted); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 72, 75 (2d Cir. 2000) ("A claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement." (citation omitted)).
Here, Isaacs has alleged racially-charged comments by Marchiano and attempts to causally connect Marchiano to his termination. Even drawing all inferences in favor of plaintiff, however, no reasonable fact finder would conclude that Marchiano caused Isaacs's termination. With regard to Levy, the inverse is true. Isaacs connects Levy to his termination but does not assert any facts whatsoever that taint Levy personally with discriminatory animus. The record demonstrates that the decision to terminate Isaacs was made by Commissioner Horn, and Isaacs concedes there was no discrimination by Horn.
Accordingly, Plaintiff's § 1981 claims against Levy and Marchiano are DISMISSED.
VII. First Amendment Retaliation Claim Against Levy and Marchiano
To state a prima facie case of retaliation under the First Amendment, a plaintiff must demonstrate that (1) his or her speech was constitutionally protected; (2) that he or she suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action such that the speech is deemed to be a motivating factor in the determination. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Speech regarding the allegedly discriminatory treatment of African-American employees is a "matter of political, social or other concern to the community," Catletti v. Rampe, 334 F.3d 225, 230 (2d Cir. 2003) (citation omitted), particularly as Isaacs's complaints pertained to others rather than to himself. Kelly v. New York City Off-Track Betting Corp., No. 89 Civ. 5984, 1991 U.S. Dist. LEXIS, **8-9 (S.D.N.Y. Apr. 2, 1991) ("The threshold question to be determined . . . is whether plaintiff's speech touched upon a matter of public concern."). The timeframe in which the claimed events occurred also support a prima facie case of First Amendment retaliation: Isaacs objected to Marchiano's racially derogatory comments in September 2002; Isaacs complained about racially disparate salary increases sometime thereafter; Isaacs opposed Maynard's job change in February 2003; and DOP terminated him in March 2003. The key events all occurred in relatively short order.
The case law differs on the temporal nexus that must be shown in First Amendment retaliation claims, but it is clear that a one-month gap is not a fatally long period of time. See, e.g., Suggs v. Port Auth. of New York and New Jersey, 97 Civ. 4026, 1999 U.S. Dist. LEXIS 6319, at **20-21 (S.D.N.Y. May 4, 1999) (finding six-month gap between protected activity and termination sufficient to raise inference of retaliation);Bernhardt v. Interbank of New York, 18 F. Supp. 2d 218, 226 (E.D.N.Y. 1998) (same, as to eleven-month gap). Defendants' motion to dismiss the First Amendment retaliation claim is thus DENIED.
VIII. Qualified Immunity for Levy and Marchiano
Levy and Marchiano are not entitled to qualified immunity. The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), described this doctrine as follows:
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Ibid.. . . .
A court required to rule upon a qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232 (1991). . . .
If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established.Saucier v. Katz, 533 U.S. at 200-01. Were Isaacs to demonstrate the allegations set out in his Complaint, he would prove First Amendment retaliatory termination. This constitutional right is clearly established. Over twenty years ago, the Supreme Court held that "a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140 (1983). An extensive jurisprudence has developed following Connick nationally and in this Circuit.See Morris v. Lindau, 196 F.3d at 109-14; Catletti v. Rampe, 334 F.3d at 228-31 (holding that defendants were not entitled to qualified immunity because First Amendment rights of public employees clearly established). Defendants' motion to dismiss all claims against Levy and Marchiano on the ground of qualified immunity is DENIED.
For the foregoing reasons, it is hereby ORDERED that
Defendants' motion that Plaintiff's claims as against DOP be dismissed is GRANTED. Defendants' motion that Plaintiff's due process claim against all Defendants be dismissed is GRANTED.
Defendants' motion that Plaintiff's §§ 1981 and 1983 claims against the City of New York be dismissed is GRANTED.
Defendants' motion that Plaintiff's Title VII claims as against Defendants Levy and Marchiano be dismissed is GRANTED. Defendants' motion that Plaintiff's First Amendment retaliatory termination claim be dismissed as against the City of New York is GRANTED and as against Levy and Marchiano is DENIED.
SO ORDERED.