Opinion
98 Civ. 5840(FM)
November 14, 2003
MEMORANDUM DECISION
I. Introduction
This is an employment discrimination action brought by plaintiff Gabriel Pagan ("Pagan"), a former member of the New York State Board of Parole ("Board"), who later served as Special Assistant for Minority Affairs at the New York State Division of Parole ("Division"). Pagan was originally represented by counsel but is now proceeding pro se. In his Amended Complaint, Pagan contends that the Division and several of its senior officials discriminated against him because he is Puerto Rican. Pagan also alleges that he was fraudulently induced to resign his Board position and accept a position at the Division based on promises that the defendants subsequently breached. Following the completion of discovery, the defendants have moved for summary judgment, which is granted for the reasons set forth below.
The parties have consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c).
II. Background
A. Relevant Facts
Unless otherwise noted, the relevant facts are set forth in the light most favorable to Pagan.
Pagan is a Hispanic male who began working for the Division as a parole officer in 1978. (Compl. at 2, Defs.' R. 56.1 Stmt. ¶ 1; Singleton Decl. Ex. A). From 1978 until early 1989, Pagan was assigned to the Bronx Field Office. (Def.'s R. 56.1 Stmt. ¶¶ 3, 20). Although Pagan contends that his performance during this period was satisfactory, and that he was counseled as to work shortcomings only occasionally, documentation submitted by the defendants suggests that this stage of his career was not entirely trouble free. (See Pagan Dep. at 51-79; Defs.'R. 56.1 Stmt. ¶¶ 4-10, 16-18; Singleton Decl. Exs. C-I, O-Q). Pagan also was out of work for approximately ten months due to job-related stress and depression during this period. (Pagan Dep. at 80-92; Defs.' R. 56.1 Stmt. ¶¶ 10-15; Singleton Decl. Exs. I-N).
In 1995, Pagan secured a political appointment to the Board for the four years remaining on his predecessor's six-year term. (Pagan Dep. at 102-05). The Board consists of nineteen commissioners. (Travis Decl. ¶ 4). Defendant Brion Travis, ("Travis"), is one of the commissioners and serves as Board Chairman. (Id.; Pagan Dep. at 126). Travis also serves as Chief Executive Officer of the Division, which supervises parole releasees while they are in the community. (Travis Decl. ¶ 4). The remaining commissioners regularly travel to the state's various correctional facilities where they sit in panels of two or three to consider applications for parole. (Pagan Dep. at 126).
Although Pagan contends that he was a "reliable, dedicated conscientious, and productive" Board member, (Pagan Resps. in Opp'n to Defs.' Reply at 5), the defendants maintain that his work performance continued to be a problem following his appointment as a commissioner. (See Travis Decl. ¶¶ 9-10; Singleton Decl. Exs. U-W). In late November 1996, Travis sent Pagan a letter cautioning him that while his work was acceptable, this had recently been "offset by [his] absentee record and tardiness." (Travis Decl. ¶ 10; Singleton Decl. Ex. W). Pagan concedes that at or about this time, he and Travis were having some "minor" disputes. (Pagan Dep. at 321-25).
Pagan previously had worked with Travis and the other individual defendants at the Bronx Field Office. He and Travis both served as parole officers there during the late 1980s. (Travis Decl. ¶ 5). Defendant Joseph J. Gawloski, who was serving as the Division's Executive Director by the time of Pagan's appointment to the Board, had supervised him at the Bronx Field Office and the Fulton Correctional Facility for a total of approximately two years. (Gawloski Decl. ¶¶ 2, 5). Pagan also had worked with defendant Michael Cohen, the Division's Chief of Operations, in the Bronx Field Office in the early 1980s, but Cohen was not his supervisor at the time. (Cohen Decl. ¶¶ 3-4).
In or around October 1997, Travis sought to create a new position within the Division for Pagan so that he could be removed from the Board without adversely affecting his salary. (Travis Decl. ¶¶ 11-12; Gawloski Decl. ¶ 11). He instructed Cohen and Gawloski to engage in discussions with Pagan toward that end. (Travis Decl. ¶ 12). Pagan then met with Gawloski, who advised him that the "administration" wanted him to take another position within the Division. (Pagan Dep. at 325-26). Pagan contends that he was told that the new position would afford him the same benefits and the security of being a line parole officer even if Governor Pataki was no longer the governor. (See id.). Pagan understood that this was "a good offer" that he could not refuse because, if he did, the "administration" would "make it difficult for [him]." (Id. at 327). At his deposition, Pagan explained that if he had declined, the defendants might have restricted him to "just paperwork," assigned him to visit correctional facilities which were far from his home, or brought him up on disciplinary charges. (Id. at 328). Pagan further testified that the "administration" that wanted him to consent to this change was "the Governor's administration and the [P]arole administration." (Id. at 330). Pagan contended that, after considering his options, he eventually resigned from the Board "under pressure" to assume a new position within the Division. (Id. at 331, 338). However, his letter of resignation painted the transition somewhat differently, noting that he had "decided to take advantage of a challenging opportunity . . . in the Division, as Deputy Commissioner of Community Relations." (Id. at 342; Singleton Decl. Ex. X).
Although Pagan expected to work in the area of community relations, he in fact was appointed to serve as Director of Policy and Analysis until the Division secured the requisite approval for his new position. (See Pagan Dep. at 411-412; Singleton Decl. Ex. Z; Gawloski Decl. ¶ 15). He subsequently was appointed as Special Assistant for Minority Affairs. (Gawloski Decl. ¶ 17). Unbeknownst to Pagan, although he was earning the same salary as he had earned before and was entitled to the use of a state car, his new position was a probationary position. (See Pagan Dep. at 412-14; Gawloski Decl. ¶¶ 13.16).
After Pagan had served as Special Assistant for approximately one month, his supervisor, defendant Cohen, rated him "Highly Effective." (Singleton Decl. Ex. CC). On December 9, 1997, Pagan signed the written evaluation form, which indicated only a few lines above his signature that his position was "probationary." (Id. at 4). Based on his rating of Pagan, Cohen recommended that Pagan's probation be continued. (Id.).
Pagan contends that, despite this favorable raring, Cohen harassed him repeatedly, calling him, among other things, a "fat Puerto Rican," and using the term "Spies." (Pagan Dep. at 403-04).
On or about December 11, 1997, the Division received an unsolicited telephone call from the New York City Police Department Narcotics Unit regarding three telephone conversations that Pagan had with a parolee who had been using a wiretapped phone. (Cohen Decl. ¶ 14; Defs.' R. 56.1 Stmt. ¶ 39; Singleton Decl. Ex. DD). In a memorandum to Cohen, Robert Gering, the Division's Assistant Deputy Chief of Operations, noted that by the time of these calls the parolee had been arrested, but the prosecutor arranged to "lift" the narcotics charges so that the parolee would have the false impression that he was "home free." (See Singleton Decl. Ex. DD at 2). A handwritten summary of a telephone conversation which apparently took place several days after the arrest, when the parolee called Pagan at the Division, reflects the following discussion:
How you doing? I haven't heard nothing. I checked and there[']s nothing in anywhere. There's nothing in terms of your name or nothing came up . . . as far as I found out I'm gonna check uh . . . ya know . . . again this week . . . uh by Friday. . . but a . . . there[']s nothing that a . . . ya know has been a . . .
[Parolee] Yes um . . I'm trying to reach a Mr. Gabe Pagan [Unidentified Mr. Gabe Pagan. . . . who's calling? Female] [Parolee] Uh. . . . locksmith [Unidentified The locksmith? Female] [Parolee] Yea [Pagan] How you doing Mr. Locksmith? [Parolee] What's up? [Pagan] [Parolee] Good [Pagan] [Parolee] Um . . . they . . . they didn't call him probably [Pagan] Well . . . there[']s not no . . . not that . . . ya know they did . . . did they have his name? You didn't give em nothing right[?] [Parolee] No . . . no. [Pagan] They can find that out though [Parolee] Yea [Pagan] They may call him and then you know then . . . they [m]ay keep it a a private thing ya know [Parolee] Yea [Pagan] . . . [inaudible] the job . . . that's the only thing [Parolee] I'm on a secure line so don't worry [Pagan] Yea . . . where you at . . . home? or what . . .[?] [Parolee] No . . . no. I'm in a friend[']s house [Pagan] Oh . . . okay. . . . uh . . . as ya know . . . unless they call him personally ya know. . . . [Parolee] Right [Pagan] That's what I gotta find out (Singleton Decl. Ex. EE at 2-4) (emphasis added).At his deposition, Pagan agreed that his statements to the parolee concerning his efforts to check the parolee's status were inappropriate, but maintained that he was posturing and had not made any inquiries on the parolee's behalf. (See Pagan Dep. at 393). Based upon the summary of this conversation, however, the Division considered it likely that Pagan was giving the parolee information as to whether a parole warrant had been issued for his arrest. (Travis Decl. ¶ 19). The matter consequently was referred to the Division's Internal Affairs Office. (Id. at 21). Following investigation, Travis (and possibly others) decided to terminate Pagan, but "Gawloski and Cohen were not involved, in any way, in [that] decision." (See id. ¶ 22; see also Gawloski Decl. ¶ 26). After Travis instructed Gawloski to fire Pagan, Gawloski, in turn, instructed Cohen to effect the termination. (Travis Decl. ¶ 23; Gawloski Decl. ¶ 27; Cohen Decl. ¶ 23).
On December 30, 1997, Martin F. Kelly, the Division's Director of Administration, sent Pagan a letter indicating that he was being terminated as of the close of business that day. (Travis Decl. ¶ 24; Singleton Decl. Ex. FF). The letter did not set forth any reason for this action. (See id.).
Pagan filed a charge of discrimination with the Equal Employment Opportunity Commission, ("EEOC"), on January 15, 1998. (Defs.' R. 56.1 Stmt. ¶ 53; Singleton Decl. Ex. GG). In his charge, Pagan alleged that he was "subjected to harassment and subsequently discharged because of [his] national origin." (Singleton Decl. Ex. GG). He contended that one element of the harassment was the threatening manner in which he was coaxed to relinquish his Board position. (Id.). On June 25, 1999, the EEOC issued Pagan a right to sue letter. (Id.; Defs.'R. 56.1 Start. 153; Singleton Decl. Ex. HH).
B. Procedural History
1. Pagan's Original Complaint
On August 14, 1998, Pagan commenced this action by filing a complaint which contained nine separate claims for relief against the Division, and Travis, Cohen, and Gawlowski in their official and personal capacities. (Docket No. 1). At the time, Pagan was represented by counsel. (Id.). On March 13, 2001, 1 issued a Memorandum Decision and Order granting in part and denying in part the defendants' motion to dismiss the original complaint, and Pagan was granted leave to amend. (Docket No. 18). Exactly one year later, I granted the defendants' motion to dismiss several state law claims asserted in Pagan's Amended Complaint which he had not been granted leave to bring and other claims that he had repleaded despite my earlier decision dismissing them with prejudice. (Docket No. 33). As a consequence of these decisions, the only claims properly before this Court are Pagan's (1) employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and New York Executive Law § 290 (the "Human Rights Law"); (2) claim that the Division and the individual defendants violated 42 U.S.C. § 1983 by dismissing him without affording him a hearing; and (3) state law claims for breach of contract and fraudulent inducement.
As this time-line indicates, there has been considerable delay in this case. One of the causes of the delay was the withdrawal of Pagan's original counsel and his decision to proceed pro se. (See,e.g., Docket Nos. 21-24).
Although the Section 1983 claim is not explicitly set forth in the Amended Complaint, the defendants have assumed it is properly before this Court, as have I for purposes of this Memorandum Decision.
III. Discussion
A. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when "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."
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Fischl, 128 F.3d at 55; see also Fed.R.Civ.P. 56(e) 1963 Advisory Committee Note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55.
To defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co., LTD. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor."Anderson, 477 U.S. at 256. Moreover, the moving party is not required to affirmatively disprove unsupported assertions made by the non-movant. See Celotex, 477 U.S. at 323. "Conclusory 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) (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)).
The Second Circuit has cautioned that summary judgment is often inappropriate in cases where the trier of fact will have to delve into an employer's intent, because intent is an issue as to which direct evidence is rarely available. See, e.g., Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). However, when an employer has explained its conduct and the plaintiff has offered only conclusory assertions in opposition, summary judgment may be granted.See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
B. Employment Discrimination Claims
1. Hostile Work Environment
Under Title VII, an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). An employee may suffer such proscribed discriminatory treatment when he is required to work in a hostile or abusive environment. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (quoting Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993)). To make the necessary showing, Pagan must prove (a) that his working environment was "objectively hostile" and (b) that a specific basis exists for imputing the harassing conduct to his former employer. See How ley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000); O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 385 (S.D.N.Y. 2001). Here, even if the Court were to accept Pagan's version of the relevant events, he plainly has not alleged facts sufficient to withstand summary judgment with respect to this claim.
There is no "threshold magic number of harassing incidents" that triggers a hostile work environment. Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (internal quotation marks omitted). Accordingly, to determine whether a work environment is "objectively hostile," a court must examine all of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. "[H]arassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County Sch. Dist. v. Breedon, 532 U.S. 268, 270 (2001) (quoting Faragher v. Boca Raton, 524 U.S. 775, 786 (1998)) (brackets in original) (internal quotation marks omitted). Isolated incidents of harassment, unless "extremely serious," are not sufficient to create such a hostile work environment. See Breedon, 532 U.S. at 271; Howley, 217 F.3d at 153;O'Dell, 153 F. Supp.2d at 386. See also Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (holding that incidents of harassment must be "more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive").
Here, in his Amended Complaint, Pagan identifies only four specific instances when Cohen made derogatory remarks concerning Puerto Ricans or Hispanics in Pagan's presence. (See Am. Compl. at 3-4). First, in July, 1997, at the New York Parole Office, Cohen referred to Pagan as a "[f]a[t] Puerto Rican" and said that Spanish food was "nasty and unhealthy." (Id. at 4). Second, in mid-November 1997, Cohen allegedly asked Pagan, within earshot of others, "What the hell are you Puerto Rican doing up here?" (Id. at 3-4). Third, the following month, after a memorial service for deceased Division personnel, Cohen allegedly commented, "You spies, excuse me! Spanish guys, go anywhere for a free [meal]." (Id. at 4). Finally, at the Albany Parole Office, Cohen allegedly disparaged Pagan's attire, stating that he was "a Commissioner now and . . . should [dress] in a suit and not wear Bronx Spani[s]h style hick ties and nonmatching slacks and [j]acket," and that "You can take the Spanish out of the Bronx ghetto[, b]ut you can't make them dress." (Id..)
When he was asked to elaborate on these incidents at his deposition, Pagan added little to his prior allegations, noting only that Cohen had called him a "fat Puerto Rican" at least twice. (Pagan Dep. at 404). Pagan conceded that nobody other than Cohen had made similar comments. (Id. at 410-11). Pagan also conceded that he had not complained to the Division's Affirmative Action Office, contending that such a complaint would have had "very little impact" because of the seniority of the officials involved. (Id. at 406-07).
Even if Cohen called Pagan a "fat Puerto Rican" twice rather than once, the series of disparaging remarks attributed to him clearly does not amount to the sort of "extremely serious" behavior required to give rise to a hostile work environment under Title VII. See, e.g., Hawana v. City of New York, 230 F. Supp.2d 518, 533 (S.D.N.Y. 2002) (single remark by supervisor insufficient to make out a Title VII hostile work environment claim); Upshur v. Dam, No. 00 Civ. 2061 (DC), 2003 WL 135819, at *7-*8 (S.D.N.Y. Jan. 17, 2003) (one week of "patronizing and racist comments" by supervisor insufficient);Dorrilus v. St. Rose's Home, 234 F. Supp.2d 326, 335 (S.D.N.Y. 2002) (referring to defendant as "El Negro" on four or more occasions does not alter conditions of employment significantly enough to implicate Title VII). The defendants consequently are entitled to summary judgment with respect to this branch of Pagan's Title VII claim.
2. Discrimination
Pagan also alleges that his removal from the Board and subsequent dismissal from the Division were racially motivated. Under the familiar burden-shifting analysis applicable to Title VII claims, a plaintiff must first establish a prima face case by showing that he (a) was a member of a protected class; (b) his job performance was satisfactory; (c) he suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001); Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 311-12 (2d Cir. 1997). As many courts have noted, this is not a difficult threshold to meet. See, e.g., Kerzer, 156 F.3d at 401 (describing the burden as "de minimis"). If the plaintiff succeeds in making this showing, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection."McDonnell Douglas, 411 U.S. at 802. Should the defendant carry that burden of production, the plaintiff then must prove that the legitimate reasons offered by the defendant are not true, but, rather, a pretext for discrimination. See id. at 804.
Turning to Pagan's removal from the Board, he clearly is a member of a protected class. See Velez v. Project Renewal, No. 02 Civ. 3084 (AKH), 2003 WL 402500, at *3 (S.D.N.Y. Feb. 20, 2003). However, even if Pagan was able to show that his work performance was satisfactory and that he suffered an adverse employment action, he still would not be able to establish a prima facie Title VII violation because there is no evidence, apart from his own conclusory assertions, that his Puerto Rican nationality played any role in the decision to seek his ouster from the Board. Indeed, although Cohen had discussions with Pagan concerning the proposed transfer to the Division, this occurred at Travis's request and was not Cohen's decision. (See Travis Decl. ¶ 11; Gawloski Decl. ¶ 11; Cohen Decl. ¶ 8).
The suggestion that Pagan's subsequent dismissal from the Division constitutes a Title VII violation, if anything, stands on even weaker ground. In November 1997, notwithstanding Pagan's allegations that Cohen had made derogatory statements in the past, Cohen prepared a written evaluation in which he rated Pagan as "Highly Effective" in his new position at the Division. (See Singleton Decl. Ex. CC). The following month, however, Cohen learned from one of his subordinates that the police had overheard Pagan having a conversation with a parolee which was of concern to them. (Id. Ex. DD; Cohen Decl. ¶¶ 14-17). Although Pagan has another explanation of the language in his tape-recorded conversation suggesting that he had checked the Division's records to determine whether an arrest warrant had been issued for the parolee, it clearly was not unreasonable for the Division to conclude on the basis of the summary provided by the police that Pagan had engaged in improper activities on behalf of a parolee. Moreover, even if that construction was not reasonable, Title VII is not intended to correct every injustice in the workplace; it requires instead that there be discrimination by an employer on the basis of the employee's "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Here, the defendants have shown that the decision to fire Pagan was not made by Cohen, the only person ever to have shown any improper bias again Pagan. Additionally, there is not a scintilla of evidence that Pagan's Puerto Rican heritage played any role in his termination. (See,e.g., Travis Decl. ¶¶ 21-22). The defendants are therefore entitled to summary judgment on this aspect of Pagan's Title VII claim.
Finally, because they are judged by the same standards as a Title VII claim, Pagan's employment discrimination claims under the state Human Rights Law and Section 1981 require no independent analysis. See, e.g., Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 838-39 (2d Cir. 1996) (applying Title VII analysis to § 1981 claim);Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp.2d 477, 484 (S.D.N.Y. 1999) (noting that claims under Title VII and the Human Rights Law "can be examined identically for summary judgment purposes"); Rosenblatt v. Bivona Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) ("New York State Human Rights Law is applied in a fashion consistent with the federal civil rights laws."). The defendants consequently are entitled to the dismissal of Pagan's Human Rights Law and Section 1981 claims.
C. Section 1983 Claim
Pagan next asserts that the defendants deprived him of his liberty interest by discharging him from his Division job without affording him a due process hearing. In order to establish a due process violation, Pagan first must show that he was deprived of a constitutionally-protected liberty or property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972); Finlev v. Giacobbe, 79 F.3d 1285. 1296 (2d Cir. 1996); Federico v. Bd. of Educ., 955 F. Supp. 194, 198-99 (S.D.N.Y. 1997). If such a deprivation occurred, the Court then must consider what process was due and whether it was provided. See Matthews v. Eldridge, 424 U.S. 319, 333-34 (1976); Rivera v. Cmtv. Sch. Dist. Nine, 145 F. Supp.2d 302, 306 (S.D.N.Y. 2001) (citing Narumanchi v. Bd. of Trustees, 850 F.2d 70, 72 (2d Cir. 1988)).
There is no question that Pagan's position at the Division was probationary. As a consequence, he did not have the right to notice and a hearing that the New York Civil Service Law affords to permanent employees. See N.Y. Civil Serv. L. § 75(1)(a) (McKinney 1999) (requiring predismissal hearing for a "person holding a position by permanent appointment in the competitive class of the classified civil service"); Gilbert v. Homar, 520 U.S. 924, 928-29 (1997) ("public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process"); Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 629 (2d Cir. 1996) ("The very nature of a probationary appointment — as the term itself implies . . . is that employment may be terminated should the employer be dissatisfied."); Fitzgerald v. Feinberg, No. 98 Civ. 8885 (RWS), 1999 WL 619584, at *4 (S.D.N.Y. 1999) ("The general rule is that whereas a permanent civil service employee must be given notice and afforded a hearing under section 75 of New York's Civil Service Law, no such hearing is required prior or subsequent to dismissal of a probationer.").
Nonetheless, even a probationary employee may be entitled to a due process hearing . . . albeit, a post-termination hearing — if he was dismissed under circumstances which stigmatize him and imperil his opportunity to secure future employment. Donato, 96 F.3d at 631-33. "To state a claim for the deprivation of liberty in this context, a claim that is often known as a `stigma plus' claim, the plaintiff must allege (1) stigmatizing statements by government officials; (2) the loss of government employment; (3) publication of those statements; and (4) the falsity of those stigmatizing statements." Velez v. Lew, 274 F. Supp.2d 444, 452 (S.D.N.Y. 2003). Perez plainly cannot make out such a claim here because the uncontradicted evidence shows that the reason for his dismissal was not published to any third parties at the time of his dismissal.
Those reasons have since become public because Pagan filed this suit. This subsequent publication does not give rise to a procedural due process claim. See Neu v. Corcoran, 869 F.2d 662, 669-70 (2d Cir. 1989) (state officials are entitled to qualified immunity where alleged defamatory statements were not made to others "in the course of dismissal from a government job").
For these reasons, the defendants are entitled to summary judgment on Pagan's Section 1983 due process claim.
D. State Law Claims
Pagan's Amended Complaint also asserts state law claims for breach of contract and fraudulent inducement. In the first of these claims, Pagan contends that prior to his resignation from the Board, the defendants "promised and confirmed that [he] would be granted a new secure position with all of the benefits previously enjoyed including status, job security, comparable economic compensation and other benefits." (Am. Compl. at 8). Assuming that such an agreement existed, it obviously could only have been entered into between Pagan, as an employee, and either the Board or the Division (or both), as his employer. Any suit against the Board or Division is precluded by the Eleventh Amendment, however, because there is no indication that either agency has consented to be sued in federal court. See, e.g., Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100-02 (1984); Melo v. Combes, No. 97 Civ. 0204 (JGK), 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998).
Turning to the fraudulent inducement claim, under New York law, "a claim for breach of contract cannot be converted into a fraud claim simply by alleging that the promissor intended not to perform its promise." JP Morgan Chase Bank v. Liberty Mut. Ins. Co., 189 F. Supp.2d 24, 26 (2d Cir. 2002). Here, that is precisely what Pagan seeks to do. The defendants are therefore entitled to summary judgment on this claim as well.
IV. Conclusion
For the reasons set forth above, the defendants' motion for summary judgment is granted. Additionally, the Clerk of the Court is respectfully requested to close this case.
SO ORDERED