Opinion
No. 00 Civ. 7002 (CBM)
May 29, 2003
MEMORANDUM OPINION AND ORDER
The court is in receipt of the parties' joint Pre-Trial Order as well as a Trial Memorandum and Motion in Limine from defendants. The court will now address the issues raised by defendants in their Motion and Memorandum. Motion in Limine
The court recited the facts of this case in depth in its decision on defendants' Motion for Summary Judgment, and familiarity with that Memorandum Opinion and Order is presumed. See Jones v. New York City Health and Hosp. Corp., 2003 WL 30412 (January 3, 2003).
Defendants argue that plaintiff should be precluded from submitting any evidence of race discrimination, since the court granted defendants' Motion for Summary Judgment with respect to the issue of race discrimination. See Jones 2003 WL 30412, at *5. Despite the court's decision on summary judgment, in the pre-trial order plaintiff has submitted that whether plaintiff was terminated from her employment because of her race remains an issue to be tried. Defendants' Motion in Limine is hereby granted; plaintiff is precluded from submitting evidence at trial of race discrimination. The Pre-Trial Order has been amended to reflect this ruling.
Trial Memorandum
Defendants seek to have plaintiff's remaining claims — 1) that she suffered salary discrimination based on her gender and 2) that she was terminated from her employment based on her gender — dismissed. The court declines to dismiss these claims at this time.
With respect to the salary discrimination claim, this court has already explicitly ruled that there remain issues of fact for trial. See Jones, 2003 WL 30412, at *3. With respect to the termination of employment claim, this court did not rule on the issue in the decision on summary judgment because defendants did not argue it. They claim now that they moved for summary judgment with respect to all claims, which is true inasmuch as their Memorandum in Support of their Motion for Summary Judgment prayed that the court "dismiss the complaint in its entirety," but nowhere in their Memorandum in Support was there any discussion of the issue. Def.s' Mem. in Supp. at 17. It is well-settled that the party moving for summary judgment bears the burden of proving that there exist no issues of fact with respect to each claim. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Since defendants did not address the issue explicitly in their motion for summary judgment, they did not meet their burden with respect to the termination claim and thus that claim remains for trial.
It may be that plaintiff's termination claim is without merit, but that is what summary judgment is for. Defendants may not ignore an issue on summary judgment and then get another bite at the apple in a trial memorandum. The appropriate remedy with respect to the termination claim, if defendants are in fact entitled to one, is a directed verdict after trial.
Lastly, defendants challenge plaintiff's claim under 42 U.S.C. § 1983. They note accurately that in her Complaint, plaintiff failed to allege federal rights, other than those protected by Title VII, that defendants violated. It is clear that a plaintiff may not advance a section 1983 claim based exclusively on a violation of Title VII. Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993); Carrero v. New York City Housing Authority, 890 F.2d 569, 576 (2d Cir. 1989). In the Pre-Trial order, plaintiff states that the claim is brought pursuant to " 42 U.S.C. § 1983 and attendant state statutes," but it is also clear that a plaintiff may not advance a section 1983 claim based on an alleged violation of state rights, since section 1983 applies only to violations of federal statutes or the U.S. Constitution.See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155 (1978) (valid section 1983 claim must show that plaintiff has "been deprived of a right secured by the Constitution and the laws of the United States" (internal quotation marks and citation omitted, emphasis added)).
Since plaintiff did not properly plead her section 1983 claim, since her proposed jury instructions contain no reference to it, and since she has sufficient remedies under Title VII and New York Human Rights Law, the court now dismisses her claim under section 1983.
SO ORDERED.