Summary
dismissing plaintiff's Title VII disparate impact claim because the complaint failed to “sufficiently identify a specific discriminatory employment practice”
Summary of this case from De La Peña v. Metro. Life Ins. Co.Opinion
01 CIV. 10628 (DLC)
June 13, 2002
MEMORANDUM OPINION AND ORDER
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants move to dismiss plaintiff's second cause of action, specifically, that defendants' "`Consortial Arrangement' and `Allocation System' have adversely affected nonwhites, and in particular, Asians and Asian Indians" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In his second amended complaint, plaintiff defines defendants' Consortial Arrangement and Allocation System as follows:
The CUNY Graduate School and University Center (hereinafter referred to as the "Graduate Center") uses a consortial model to provide doctoral education to students and teaching and doctoral supervision assignments to doctoral faculty.
CUNY's doctoral programs are organized around a single "University Center," the Graduate Center[,] with limited participation from the Colleges.
The CUNY Graduate Center "Constorial Arrangement" [sic] is a practice in which the defendants divide the CUNY doctoral faculty into two groups: 1) the Graduate Center Faculty; and 2) the College-based [sic] Faculty. About 105 doctoral faculty members are appointed to the Graduate Center and the remainder, some 1[,]500, are appointed at other CUNY colleges.
. . . .
The "Allocation System" of the CUNY Graduate Center is the financial "scheme" or policy that implements the "Consortial Arrangement."
Plaintiff further states:
The "Consortial Arrangement" and the "Allocation System" are facially neutral policies or practices, which in conjunction with each other and their implementation through the Executive Officers of the doctoral programs, the Math Program in particular, determine and affect the workload of the doctoral faculty. Since such policies determine and affect the workload of the doctoral faculty, they are employment policies.
"A plaintiff establishes a prima facie case of disparate impact by identifying a specific employment practice which, although facially neutral, has had an adverse impact on her as a member of a protected class." Smith v. Xerox Corp., 196 F.3d 358, 364 (2d Cir. 1999) (emphasis supplied). "Simply gesturing towards the hiring process as a whole will not satisfy the requirement that the plaintiff identify a specific employment practice that is the cause of" the disparate impact. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 111 (2d Cir. 2001) (internal citation omitted). See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) ("Our disparate impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities." (Emphasis in original)).
As they are described in plaintiff's second amended complaint, the Consortial Arrangement and Allocation System do not constitute a "specific employment practice" for purposes of Title VII disparate impact analysis. Rather, they constitute the organizational structure of the CUNY Graduate School and University Center. Plaintiff fails in his complaint to identify or allege the existence of any specific employment practice within this organizational structure that "has a significantly disparate impact on employment opportunities," Wards Cove, 490 U.S. at 657, of a protected class. Plaintiff's remaining causes of action address his core complaint: that decision makers implementing the Consortial Arrangement and Allocation System discriminated against him because of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983.
These disparate treatment claims have been properly pled and plaintiff will have the opportunity to litigate them fully.
Plaintiff states in his opposition that "[a]t this stage, plaintiff cannot identify narrower policies. However, after discovery on this issue, perhaps more streamline [sic] policies or practices may be identified." Plaintiff cites Swierkiewicz v. Sorema N.A., 122 S.Ct. 992 (2002), for the proposition that he need not be more specific in his pleadings. Swierkiewicz does not, however, relieve plaintiff of the obligation to identify in his pleadings a specific employment practice that is the cause of the disparate impact. Plaintiff must identify a specific employment practice to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 122 S.Ct. at 998 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Accordingly, it is hereby ORDERED that defendant's motion to dismiss plaintiff's disparate impact cause of action is granted.
IT IS FURTHER ORDERED that defendant shall submit any motion for summary judgment by July 12, 2002. Any opposition shall be submitted by August 2, 2002. Any reply shall be submitted by August 9, 2002. At the time any reply is served, the defendant shall supply two courtesy copies of all motion papers to Chambers by delivering them to the Courthouse Mailroom, 8th Floor, United States Courthouse, 500 Pearl Street, New York, New York.
IT IS FURTHER ORDERED that in the event no motion is filed, the Joint Pretrial Order shall be filed by July 12, 2002. As described in greater detail in this Court's Individual Practices in Civil Cases, the following documents shall be filed with the Pretrial Order: Voir Dire, Requests to Charge and a Memorandum of Law addressing all questions of law expected to arise at trial. Any responsive papers are due one week thereafter.
Counsel will provide the Court with two (2) courtesy copies of all pretrial documents at the time of filing.
SO ORDERED.