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granting the defendants' motion to dismiss with prejudice as to new state law claims alleged in amended complaint when the court's order granted plaintiff leave to re-plead only his Title VII, § 1981, and NYSHRL claims
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98 Civ. 5840 (FM)
March 13, 2002
MEMORANDUM DECISION AND ORDER
I. Introduction
Plaintiff Gabriel Pagan ("Pagan"), a former official of the New York State Division of Parole ("DOP"), contends that he was wrongfully terminated by the DOP for discriminatory reasons. By Memorandum Decision and Order dated March 13, 2001 ("Decision"), I dismissed various claims made by Pagan, in whole or in part, but afforded him an opportunity to amend his original complaint ("Complaint" or "Compl.") to replead certain of the dismissed claims. Thereafter, Pagan filed an amended complaint ("Amended Complaint" or "Am. Compl.") which the defendants have moved to dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted in part and denied in part. In addition, the parties are directed to appear for a pretrial conference in Courtroom 11C on March 29, 2002, at 10 a.m.
The parties previously had consented to former Magistrate Judge Grubin's exercise of jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). Following Judge Grubin's departure from the bench, the case was randomly reassigned to me.
II. Background
A. Facts
The relevant facts are set forth in considerable detail in my prior Decision. In brief, Pagan is a Hispanic male who was employed by the DOP for nearly twenty-five years. In 1995, he was appointed to the Parole Board by Governor Pataki. In October, 1997, he resigned from the Board, after the three individual defendants — Brion Travis, Chairman of the Parole Board, Michael Cohen, DOP's Chief of Operations, and Joseph Gawlowski, DOP's Executive Director — allegedly "forced" him to do so. Following his resignation, Pagan was employed by DOP as its Community Liaison Director. Pagan contends that both as a member of the Parole Board and while employed as Community Liaison Director, he was the subject of constant discriminatory harassment by defendant Cohen. He also maintains the defendants fraudulently induced him to believe that his new position would be secure so long as Governor Pataki remained in office. His position as director was in fact probationary, and Pagan was terminated by the DOP on December 30, 1997. Pagan contends that he was the victim of discriminatory acts, and ultimately fired, because he is Puerto Rican. The Equal Employment Opportunity Commission issued him a Right to Sue letter on or about June 25, 1998.
B. Procedural History
1. Complaint
Pagan's original Complaint alleged nine separate claims for relief against the DOP and the individual defendants in both their personal and official capacities. In his first claim for relief, Pagan alleged that his due process rights under Section 94 of the New York Executive Law ("Exec. L. § 94") were violated as a consequence of the defendants' failure to afford him a pre-termination hearing. (Compl. ¶¶ 27-30). The second claim for relief alleged a violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 6, of the New York State Constitution. (Id. ¶¶ 31-33). The third claim for relief alleged that he was deprived of procedural due process in violation of 42 U.S.C. § 1983. (Id. ¶ 34). Pagan's fourth through sixth claims for relief set forth pendent claims under Section 290 of the New York Executive Law ("Human Rights Law") and for breach of contract and fraudulent inducement. (Id. ¶¶ 35-41). Pagan's seventh claim for relief arose under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Id. ¶¶ 42-44). Pagan's eighth claim for relief alleged that he was subjected to a racially hostile environment that interfered with his right to enforce his "contract" with the defendants, in violation of 42 U.S.C. § 1981. (Id. ¶¶ 45-47). Finally, in his ninth claim for relief, Pagan contended that the "defendants did tortiously interfere with [his] business relationships with defendants." (Id. ¶ 48).
2. Decision
On March 13, 2001, I issued a Decision which granted in part and denied in part the defendants' motion to dismiss the Complaint. (Docket No. 18). I granted Pagan thirty days leave to replead his Title VII, Section 1981, and Human Rights Law claims, as well as any other claims that were not dismissed in their entirety with prejudice. (Id. at 17-18). That deadline was extended three times over the next few months, during which time Pagan's counsel also was granted leave to withdraw from any further representation of him.
3. Amended Complaint
On July 5, 2001, proceeding pro se, Pagan served and filed his Amended Complaint, which repleads his federal claims under Title VII and 42 U.S.C. § 1981 and 1983, as well as his state law claims for violation of the Human Rights Law, breach of contract, and fraudulent inducement. (See Docket No. 24). Although Pagan opted not to replead all of the claims in the Complaint that survived the first dismissal motion, his Amended Complaint also purports to allege three new state law claims for (a) wrongful termination of an at-will employee, (b) negligent misrepresentation, and (c) intentional infliction of emotional distress.
In his Amended Complaint, Pagan seeks compensatory damages for the salary that allegedly should have been paid to him from the date of his termination in December 1997 to the end of his term as a Parole Board member in July 1999. (Pl.'s Mem. at 39). Pagan also asks the Court to declare his resignation from the Parole Board void and order that a hearing regarding his discharge be held "before an impartial arbitrator or an appropriate tribunal." (Id. at 38).
4. Renewed Motion to Dismiss
On or about August 9, 2001, the defendants served a motion pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim for relief. (See Docket Nos. 26-28). Pagan filed his memorandum of law and exhibits in opposition to the motion on or about September 5, 2001 (Docket No. 29); the defendants served their reply memorandum on or about December 10, 2001 (Docket No. 32).
III. Discussion
A. Standard of Review
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992). These same standards apply to a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
Moreover, when a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Accordingly, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges violations of his civil rights. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
In keeping with these precepts, although Rule 12(b) generally restricts a court's consideration to the four corners of the complaint, pro se pleadings may be read together to determine whether a plaintiff conceivably could be entitled to relief. See, e.g., Amaker v. Haponik, No. 98 Civ. 2663, 2000 WL 343772, at *1 (S.D.N.Y. Mar. 31, 2000) (Koeltl, J.); Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) (Scheindlin, J.) (considering allegations set forth in plaintiff's opposition papers in deciding defendants' Rule 12(b)(6) motion); Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997) (Sotomayor, J.)(same); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N Y 1990) (Cannella, J.)("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint."). Courts also properly may look beyond the complaint when a party seeks its dismissal for lack of subject matter jurisdiction. See Kamen v. Am. Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Exch. Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); Marsden v. Fed. B.O.P., 856 F. Supp. 832, 835 (S.D.N.Y. 1994) (Stanton, J., adopting report and recommendation of Grubin, Mag. J.).
B. Previously Unpleaded Claims
As noted above, the Amended Complaint, which was filed nearly three years after this suit was commenced and nearly four years after Pagan's dismissal, contains three new state law claims. My Decision, however, gave Pagan leave to replead only his employment discrimination claims under Title VII, Section 1981, and the Human Rights Law. Pagan also obviously had the right to reassert any claims which were not dismissed in their entirety. It follows that Pagan did not have the right to assert new claims in his Amended Complaint. His state law claims seeking relief for wrongful termination of an at-will employee, negligent misrepresentation, and intentional infliction of emotional distress consequently are dismissed with prejudice. See, e.g., Willett v. City of New York, No. 94 CV 3873, 1997 WL 104769, at *2 (E.D.N.Y. Feb. 18, 1997) (refusing to consider claims raised by pro se plaintiff in amended complaint which exceeded scope of leave to amend).
C. Abandoned Claims
Pagan also has chosen not to incorporate into his Amended Complaint all of the claims in his earlier Complaint that survived dismissal. "[I]t is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect." See Harris, 186 F.3d at 249 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)). Determining whether a pro se plaintiff intended to abandon the legal theories in his first complaint by filing an amended complaint is nevertheless sometimes difficult because "[a] pro se party may not fully understand the superseding effect of the second pleading." Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v. Sorema, N.A., 122 S.Ct. 992, 2002 WL 261807, at *1 (Feb. 26, 2002). There is no such concern in this case, however, because Pagan expressly notes on the first page of his Amended Complaint that it "replaces [the] previously submitted complaint." (Am. Compl. at 1). Given that legend, the Court declines to treat any claims that Pagan chose not to replead as having been incorporated into the Amended Complaint. Those additional claims consequently also are dismissed with prejudice.
D. Employment Discrimination Claims
The United States Supreme Court has recently held that a plaintiff alleging employment discrimination in violation of Title VII need not include "specific facts establishing a prima facie case of discrimination under the framework set forth . . . in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . . . [but] instead must [plead] only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz, 2002 WL 261807, at *2 (quoting Fed.R.Civ.P. 8(a)(2)). Accordingly, when a Title VII complaint gives the defendant "fair notice of what the [plaintiff's] claims are and the grounds upon which they rest," it is sufficient to survive a motion to dismiss. Id. at *5. In this case, Pagan has alleged facts which permit the inference that his work environment was hostile and that his termination was racially motivated. More specifically, he has alleged that defendant Cohen made racially discriminatory statements on three separate occasions, calling him a "spic" and a "fat Puerto Rican" and making disparaging comments about his attire ("You can take the Spanish out of the Bronx ghetto — [b]ut you can't make them dress"). (Am. Compl. at 4). Pagan also contends that he was "singled out for ridicule, insults, abusive and highly offensive slurs and remarks" and that Cohen continually "harrass[ed] [sic], intimidate[d], and belittle[d]" him. (Pl.'s Mem. at 20). Pagan further alleges that when he began working in his new position as Community Liaison Director, Cohen served as his immediate supervisor. (See id. Ex. 4). In that capacity, Cohen allegedly was responsible for terminating him. (Id. at 21). These allegations clearly suffice to meet the limited pleading requirements imposed by Fed.R.Civ.P. 8(a) with respect to Pagan's hostile work environment and discriminatory termination claims under Title VII. See Swierkiewicz, 2002 WL 261807, at *5. The defendants' motion to dismiss Pagan's Title VII claim therefore must be denied insofar as DOP is the named defendant. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456-57, 96 S.Ct. 2666, 2671-72, 49 L.Ed.2d 614 (1976). Title VII, however, only makes it an unlawful employment practice for an "employer" to discharge an employee because of that "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. The term "employer," in turn, is defined to include only persons who have fifteen or more employees. Id. § 2000e(b). An individual — even if he is a supervisor — does not meet this definition and is not considered his employer's agent for purposes of liability under Title VII. See, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Pagan's Title VII claims against the individual defendants therefore must be dismissed with prejudice.
The Amended Complaint also seeks to allege unlawful employment discrimination under the Human Rights Law and 42 U.S.C. § 1981. Courts commonly analyze the sufficiency of such claims in the same manner as Title VII claims, reaching the same result. 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) (Carter, J.) (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) (Scheindlin, J.)("New York State Human Rights Law is applied in a fashion consistent with the federal civil rights laws."). Nevertheless, because there has been no abrogation of Eleventh Amendment immunity, these claims cannot be maintained against the DOP or the individual defendants in their official capacities. See, e.g., Lambert v. N YS. Office of Mental Health, No. 97-CV-1347, 2000 WL 574193, at *7 (E.D.N Y Apr. 24, 2000) ("Human Rights Law includes no waiver of the state's immunity to suit in federal court"); Nash v. N.Y.S. Exec. Dep't, Div. of Parole, No. 96 Civ. 8354, 1999 WL 959366, at *5 (S.D.N.Y. Oct. 20, 1999) (section 1981's "silence with respect to the Eleventh Amendment must be read as a decision not to abrogate Eleventh Amendment immunity"). Accordingly, Pagan's non-Title VII employment discrimination claims must be dismissed with prejudice, except insofar as they seek to recover damages against the individual defendants in their personal capacities.
E. Due Process Claim
The only other claim set forth in the Amended Complaint alleges that the state violated 42 U.S.C. § 1983 by improperly depriving Pagan of constitutionally required procedural due process in connection with his termination. As stated in my earlier Decision, the enactment of Section 1983 does not reflect any Congressional intent to abrogate a state's Eleventh Amendment immunity. (Decision at 15). Accordingly, Pagan's due process claim must be dismissed with prejudice to the extent that he seeks monetary damages against the DOP or any of the individual defendants in their official capacities. See Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990). See also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 l. Ed. 2d 45 (1989) ("neither a State nor its officials acting in their official capacities are 'persons' under § 1983").
IV. Conclusion
As set forth above, the defendants' motion to dismiss is granted in part and denied in part. In addition, the parties are directed to appear for a pretrial conference in Courtroom 11C on March 29, 2002, at 10 a.m.
SO ORDERED