Summary
In Schlesinger v. New York City Transit Auth., 00-CV-4759, 2001 U.S. Dist. LEXIS 632 (S.D.N.Y. Jan. 26, 2001), the plaintiff failed to claim an employment action that implicated a liberty interest because he merely alleged "harm [to] his future promotional opportunities," and not that he was disciplined or terminated.
Summary of this case from Behrend v. KleinOpinion
00 CIV. 4759 (SAS).
January 24, 2001.
Robert N. Felix, Esq., 26 Broadway, Suite 2400, New York, New York 10004, (212) 747-1433, For Plaintiff.
Robert K. Drinan, Esq., New York City Transit Authority, 130 Livingston Street, 12th Floor, Brooklyn, New York 11201, (718) 694-3892, For Defendants.
OPINION AND ORDER
Wilhelm Schlesinger has sued the New York City Transit Authority ("TA") and individual managers and officials of the TA, pursuant to 42 U.S.C. § 1983 ("section 1983"), alleging that: (1) he was retaliated against for exercising his First Amendment rights; (2) his due process rights were violated; and (3) he was discriminated against because of his race. Plaintiff also asserts state law claims. Defendants now move to dismiss the First Amended Complaint ("FAC") for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the foregoing reasons, defendants' motion is granted in part and denied in part.
I. LEGAL STANDARD
Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where a plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Chance v. Armstrong,
143 F.3d 698, 701 (2d Cir. 1998) (quotation marks omitted); see also Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) ("The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.") (quotation marks omitted). Nevertheless, "[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Roebuck Co., 87 F.3d 65, 70 (2d Cir. 1996) (quotation marks and citations omitted).
To properly decide a Rule 12(b)(6) motion, a court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). The court must limit itself to facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). The court may also consider documents, while not explicitly incorporated by reference, that "plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-8 (2d Cir. 1991)).
Defendants have submitted three documents that are deemed part of the pleadings because plaintiff incorporated them by reference in his complaint. See infra notes 6, 7, and 8.
Unless otherwise indicated, the facts, assumed true for purposes of this motion, are referenced with paragraph numbers taken from the FAC.
A. The Parties
The TA is a corporation created by New York State that "controls, directs and/or administers employment practices pertaining to all Transit Authority employees." ¶ 18. Plaintiff, a white male, has been employed by the TA since 1974 and currently holds the position of "Manager of Classification and Exam Construction." ¶¶ 17, 24. Defendant Brenda McIntosh, a black female, is currently the "Senior Director, Examination and Classification" at the TA. ¶ 20. Defendant Richard Gorman, a white male, holds the position of "Assistant Vice President, Employment Services, Human Resources." ¶ 19. McIntosh and Gorman are plaintiff's supervisors. ¶ 27. Kevin Hyland is the Vice President of Human Resources for the TA. ¶ 21.
B. Plaintiff's Positions at the TA
Prior to December 1994, plaintiff held the position of "Manager of Classification" with a Hay Point rating of 464. ¶ 30. However, in December 1994, plaintiff was informed that the Classification Unit would be dissolved and that, commencing on January 1, 1995, plaintiff would function in a dual managerial capacity as "Manager of Classification and Exam Construction." ¶¶ 31, 32. Plaintiff believed this new assignment warranted a promotion, which the TA salary manual describes "as the movement of an employee or re-evaluation of an employee's current position as the result of enhanced responsibilities: . . . from a managerial position in a lower grade to a managerial position in a higher grade . . . ." ¶ 25. The manual further provides that "[t]he salary increase for a one grade promotion may be up to 10% of the current base salary." Id.
Although the FAC does not define "Hay Point" rating, it is understood to be a system whereby individual employees are ranked based on their education, experience, and ability, and that this ranking determines an employee's salary. See Belfi v. Prendergast, 191 F.3d 129, 133 (2d Cir. 1999) ("A Hay point value is assigned depending on the skills and talents needed to perform the job, and a minimum, midpoint, and maximum salary range for the position is established.").
Following the merger, McIntosh became the Senior Director of Examination and Classification. ¶ 36.
In response to this reorganization, James Campbell, then-Acting Deputy Vice President, directed Gorman to update plaintiff's Managerial Position Questionnaire ("MPQ") to reflect plaintiff's dual managerial functions. ¶ 38. Gorman did not comply with this demand. Id. Rather, between January 1, 1995 and May 15, 1996, official records of the TA "misrepresented plaintiff's functions" by listing him only as "Manager of Classification" with 464 Hay Points. ¶ 39. On two other occasions — in 1996 and 1998 — McIntosh instructed plaintiff to complete MPQ write-ups to reflect his dual managerial functions. ¶¶ 40, 51. Each time, plaintiff prepared the update but Gorman failed to take any action. ¶¶ 40, 41, 51. Gorman's failure to revise plaintiff's MPQ and increase his Hay Point rating resulted in plaintiff "los[ing] the opportunity" to receive a 10% increase in compensation associated with an increase in Hay Points, "which although not mandatory, is the standard increase that the [TA] implements under such circumstances." ¶ 41.
Not only were plaintiff's Hay Points not increased, but in June 1996, Gorman directed and processed a "Personal Action Request" ("PAR") which incorrectly listed plaintiff as an Exam Construction Manager and lowered his Hay Point rating from 464 to 417. ¶ 42. This change "was in complete violation of [TA] guidelines for adjusting MPQs and Hay point levels of managerial employees." ¶ 43.
In 1997, plaintiff, like all other managers, received a rating of "good" during his unit's "Performance Rating Appraisal." ¶ 50. Whereas all other managers received a 4% merit increase, plaintiff received a 3.7% increase. Id. Plaintiff complained to Gorman, who responded that plaintiff was "making too much money." Id.
In May 1999, a Manager of Classification and Exam Construction position became available. Plaintiff applied for the position, but was not interviewed. ¶ 56. Rather, the position was filled by Michael Quiery, his "ex-subordinate." ¶ 59. When plaintiff asked McIntosh for an explanation, she informed him that all managerial positions in Examinations — including plaintiff's position — were "Classification and Exam Construction" positions. ¶ 57. McIntosh also falsely informed him that he was one of only two Managers of Classification and Exam Construction, with each position rated at 479 Hay Points. ¶ 58.
C. Plaintiff's Complaints
In September 1999, plaintiff first discovered that TA records listed him only as an "Examination Manager" with a Hay Point rating of 417. ¶ 64. In a multi-page memorandum dated October 25, 1999, plaintiff complained to Gorman of the "inaccurate representation" of his managerial position, his MPQ, and his Hay Point rating. ¶ 65.
The subject line of the memorandum states:
RE: The Inaccurate Description of the Duties and
Responsibilities of My Managerial Position; The Corresponding Inaccurate Hay Point Assessment of the Same; the Lack of Appropriate Adjustment of my Compensation Level over the 1995-2000 period.
¶ 65.
On January 5, 2000, plaintiff met with a representative of the Metropolitan TA's Inspector General's office ("IG"). ¶ 68. Plaintiff provided the IG with several documents, including a copy of his October 25, 2000 Memorandum, and informed the IG of the TA's "fraud." ¶ 68. The IG declined to investigate the matter. ¶ 71.
On February 4, 2000, plaintiff wrote a second letter to Gorman complaining of the "increased . . . workload and pressure on me and all the members of my team beyond our individual and collective limit." ¶ 72 The increased workload had been precipitated by the October 1996 retirement of Mort Kessler, a senior Manager of Examinations. ¶ 47. The letter also reiterated plaintiff's complaints concerning his MPQ and Hay Point rating. ¶ 72.
On February 16, 2000, plaintiff's counsel wrote to Gorman and threatened "a civil action" unless Gorman remedied "the inequities [plaintiff] has endured." ¶ 76. The following week, plaintiff's title was changed to "Manager of Classification and Exam Construction," retroactive to January 1999, and his Hay Point rating was increased to 479. ¶¶ 24, 79.
D. The Disciplinary Actions
On February 18, 2000, McIntosh charged plaintiff with two disciplinary violations and sought plaintiff's suspension for two weeks. ¶ 78. On March 8, 2000, plaintiff was provided a Step I hearing. ¶ 80. There, plaintiff submitted a letter in which he complained that McIntosh "use[s] her authority as Senior Director as a license to abuse, frame and break subordinates according to her whims and personal prejudices." Id. The letter also stated that other managers without prior disciplinary history have accused McIntosh of filing false charges against them. ¶¶ 80.
Although the FAC does not discuss the substance of the two disciplinary violations, defendants have provided the Court with a copy of the charges. Plaintiff was charged with "Improper Performance of Duty" and "Conduct Unbecoming" of a manager. See 2/18/00 Disciplinary Notification, Ex. C to 8/9/00 Affidavit of Robert K. Drinan, defendants' counsel ("Drinan Aff."), at 2. Plaintiff incorporated this document by reference in his complaint. See FAC ¶ 78.
At the Step I level, the second charge was "dropped" and the recommended suspension period was reduced to one week. ¶ 130. Plaintiff appealed the decision to the Step II level. ¶ 131. Gorman allegedly expressed his strong objections to plaintiff's appeal and informed plaintiff that he should "quit while [he] was ahead" and that he was "close to being demoted to Associate Staff Analyst." ¶¶ 130, 131. On March 23, 2000, plaintiff's Step II appeal was denied. ¶ 132.
On March 17, 2000, plaintiff and McIntosh met briefly to discuss the negative performance evaluation McIntosh gave him. ¶ 129. Plaintiff and McIntosh met again on April 17 to continue their discussion. ¶ 133. During that meeting, McIntosh allegedly told plaintiff that he and Gorman were "made of the same cloth" and claimed that he and Gorman "'had been in cahoots' in a campaign of harassment against her for years." ¶ 134.
Plaintiff alleges that "McIntosh deliberately staged a loud, hysterical scene designed to attract the attention of the Examination staff . . . and to provide the (false) impression that the outburst was caused by some provocative statement or behavior on plaintiff's part." ¶ 135. Moreover, this incident led to McIntosh's cautionary memorandum, dated April 28, 2000, which accused plaintiff of "intimidation, harassment and abuse," as well as cursing and acting in a "belligerent" manner. ¶ 136.
The cautionary memorandum is attached as Ex. F to the Drinan Aff., and was incorporated by reference in the FAC. See FAC ¶ 136.
On May 30, 2000, plaintiff was charged with disciplinary violations stemming from the April 17 incident. ¶ 138. On June 14, 2000, plaintiff was afforded a Step I hearing where a thirty-day penalty was recommended. ¶¶ 139, 140. On June 27, 2000, plaintiff appealed the Step I decision to the Step II level and also filed this lawsuit. ¶ 141. On August 16, 2000, plaintiff's Step II appeal was denied. ¶ 142.
The disciplinary notification McIntosh provided plaintiff accused him of "conduct unbecoming" of a supervisor and of being "provocative, insulting, insubordinate, disrespectful and unnecessarily aggressive." 5/30/00 Disciplinary Notification, Ex. G to Drinan Aff., at 1-2. This document, although not attached to the FAC, has been incorporated by reference. See FAC ¶ 138.
E. The Instant Action
Plaintiff asserts six claims against defendants, three of which arise under federal law. All the federal claims are brought pursuant to section 1983. In Claim I, plaintiff alleges that defendants retaliated against him for exercising his First Amendment rights. ¶¶ 156-157. In Claim II, plaintiff maintains that defendants violated the Due Process Clause of the Fourteenth Amendment in two respects: first, defendants defamed plaintiff, thus injuring his liberty rights; second, plaintiff had a protected property interest which the government violated by misrepresenting plaintiff's function and title. ¶¶ 159-166. Claim III alleges a violation of the Equal Protection Clause of the Fourteenth Amendment. ¶ 169. Plaintiff contends that he can demonstrate "[a] pattern of treating black employees more favorable [sic] than white employees in the Examination Unit, because of race." ¶ 170.
Plaintiff also asserts three state law claims. In Claim IV, plaintiff maintains that defendants are liable to him in quantum meruit. ¶¶ 173-176. Claims V and VI allege that defendants discriminated against plaintiff in violation of the New York City Human Rights Law, N.Y.C. Admin. Code, § 8-107 et seq. ("City Administrative Code") and the New York State Human Rights Law, Exec. Law § 296 et seq. ("State Executive Law"), respectively. ¶¶ 178-184.
III. DISCUSSION
"Section 1983 imposes liability on anyone who, under color of state law, deprives a person 'of any rights, privileges, or immunities secured by the Constitution and laws.'" Blessing v. Freestone, 520 U.S. 329, 340 (1997) (quoting 42 U.S.C. § 1983) . "It is axiomatic that a successful § 1983 claim requires more than a showing that one has been wronged at the hands of a state or municipal official. Rather, a plaintiff must allege that he has been deprived of some right secured by federal statute or the United States Constitution." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) (citing Baker v. McCollan, 443 U.S. 137, 140 (1979)).
A. The First Amendment Claim
It is well established that a public employer cannot retaliate against an employee for the exercise of his First Amendment free speech rights.See Connick v. Myers, 461 U.S. 138, 140 (1983) ("[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment."). Courts must be "vigilan[t] . . . to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987).
To determine whether a public employer has violated the First Amendment requires a court to balance the interests of the employee, as a citizen, in commenting upon matters of public concern against the interests of the State, as an employer, in promoting the efficiency of the workplace and public services. See Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir.), cert. denied, 528 U.S. 823 (1999). No First Amendment claim may proceed, however, where the employee's speech is not a matter of public concern.See Ezekwo v. NYC Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991).
Whether an employee's speech is a matter of public concern is a question of law for the court to decide. See Hale v. Mann, 219 F.3d 61, 70 (2d Cir. 2000). The court must take into account "the content, form, and context of a given statement, as revealed by the whole record,"Connick, 461 U.S. at 147-48, and determine whether the speech "arises from the speaker's status as a public citizen or from the speaker's status as a public employee." Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994). "[T]he court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it has a broader public purpose." Lewis, 165 F.3d at 163-64.
While "speech on any matter of political, social, or other concern to the community is protected by the First Amendment," Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (quotation marks omitted), "speech on a purely private matter, such as an employee's dissatisfaction with the conditions of his employment" falls outside the realm of constitutional protection. Lewis, 165 F.3d at 164. See also Collins v. Christopher, 48 F. Supp.2d 397, 408 (S.D.N.Y. 1999) ("Speech that relates primarily to matters of personal interest or internal office affairs, in which the individual speaks as an employee rather than as a citizen, cannot support a First Amendment claim.") (citing Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993)). "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case." Connick, 461 U.S. at 149.
Plaintiff's claim of retaliation is based on the following events: (1) plaintiff's October 25, 1999 memorandum to Gorman complaining of his inadequate job description and inadequate salary; (2) plaintiff's January 5, 2000 meeting with the IG, during which he complained of "fraud"; and (3) plaintiff's February 4, 2000 letter to Gorman complaining of his and his co-workers' workload and of his erroneous classification and Hay Point rating. See supra Part II.C; Plaintiff's Memorandum of Law in Response to Defendants' Rule 12(b)(6) Motion ("Pl. Mem.") at 8.
None of these statements addressed a matter of public concern. All of plaintiff's comments "were personal in nature and generally related to [his] own situation." Ezekwo, 940 F.2d at 781. Plaintiff was not speaking as a citizen, but rather as an employee complaining of his own labor dispute. Even though plaintiff's complaints of his heavy workload also addressed the workload of his co-workers, such speech does not constitute a matter of public concern because it related primarily "to plaintiff's personal circumstance and was motivated purely by self-interest." Stein v. County of Rockland, No. 95 Civ. 9204, 1997 WL 603826, at *2 (S.D.N.Y. Sept. 11, 1997) (employee's speech that criticized county highway department, accused superintendent of "imperial management," and complained to county legislators of plaintiff's "de facto demotion" held not matters of public concern). Plaintiff's speech "'did not attempt to expose some malfeasance that would directly affect the community at large.'" Harris v. Merwin, 901 F. Supp. 509, 512 (N.D.N Y 1995) (quotingColburn v. Trustees of Indiana Univ., 973 F.2d 581, 586 (7th Cir. 1992)). Even where plaintiff complained to the IG's office of "fraud" in the TA, he was primarily referring to a "fraud" committed against him, not one committed against the public. See Pappas v. Giuliani, No. 00 Civ. 0320, 2000 WL 1597847, at *10 (S.D.N.Y. Oct. 26, 2000) ("[C]ourts must look behind pretextual 'public concern' rationales proffered by plaintiffs and attempt to discern whether their conduct, taken as a whole, was actually meant to address matters of public concern or was simply a vehicle for furthering private interests."); cf. Vasbinder v. Ambach, 926 F.2d 1333, 1335-36, 1340 (2d Cir. 1991) (plaintiff's report of fraud, theft, and misallocation of public funds in federally-funded program involved issues of public concern). Accordingly, plaintiff's First Amendment retaliation claim is dismissed.
B. The Due Process Claims
Pursuant to the Due Process Clause of the Fourteenth Amendment, a state may not deprive an individual of property or liberty without due process of law. In order to prevail on a due process claim, a plaintiff must identify a constitutionally protected liberty or property interest and demonstrate that the state has deprived him of that interest without due process of law. See Local 342 v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994).
1. Liberty Interest
It is well established that damage to one's reputation is not "by itself sufficient to invoke the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S. 693, 701 (1976). As the Paul Court stated:
While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause.Id. at 701.
The Second Circuit has interpreted this to mean that "stigma plus" is required to establish a constitutional violation. See Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994) (citing Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir. 1989)). A plaintiff must first prove that defendants' actions "will result in stigma, that is, in 'public opprobrium' and damage to [his] reputation." Valmonte, 18 F.3d at 999 (quoting Bohn v. County of Dakota, 772 F.2d 1433, 1436 n. 4 (8th Cir. 1985)). The defamation must "denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his . . . profession." Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630-31 (2d Cir. 1996). A statement that an employee merely performed a job poorly or acted in an improper manner is not enough. See O'Neill v. City of Auburn, 23 F.3d 685, 692 (2d Cir. 1992) (a governmental announcement that an employee is incompetent is "considerably graver and carries more potential for future disqualification from employment than a statement that the individual performed a job poorly").
To satisfy the "plus" element, a plaintiff cannot rely merely on "the deleterious effects which flow directly from sullied reputation" such as "the impact that defamation might have on job prospects, or, for that matter, romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation." Valmonte, 18 F.3d at 1001. See also Siegert v. Gilley, 500 U.S. 226, 234 (1991) ("Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiff's reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action."). Although "it is not entirely clear what the 'plus' is," Neu, 869 F.2d at 667, the Second Circuit has clarified that this element requires a "dismissal from government employment or termination of some other right or status." Valmonte, 18 F.3d at 1000.
Plaintiff contends that his liberty interest in his reputation was violated when defendants defamed him in the April 28, 2000 cautionary memorandum and the May 30, 2000 disciplinary charges, and that he therefore has a right to "a full hearing . . . before an impartial decisionmaker." FAC ¶ 161. He contends that this defamation caused him to "suffer not only significant damage to reputation and his internal promotional opportunities as a TA manager, he was suspended for thirty days and threatened with demotion." Pl. Mem. at 24. However, these allegations do not satisfy the "stigma plus" test.
First, the allegedly defamatory statements do not "go to the heart of [plaintiff's] professional competence . . . ." O'Neill, 23 F.3d at 692-93 (quotation marks and citations omitted). The defamatory statements accused plaintiff only of acting in an unprofessional manner. Furthermore, the charges against plaintiff did not reflect dishonesty or immorality, which may be beyond plaintiff's power to correct. Rather, the charges primarily concerned one incident where plaintiff acted in a disrespectful manner. Because such conduct is within his power to correct, the charge is not sufficiently stigmatizing. See Donato, 96 F.3d at 630 ("An employee charged with derelictions largely within [his] own power to correct is not deprived of [a liberty interest].") (citingRussell v. Hodges, 470 F.2d 212, 217 (2d Cir. 1972)).
Second, plaintiff has not satisfied the "plus" element. Plaintiff was never terminated from his job. See Donato, 96 F.3d at 630 ("[A] defamatory statement about an employee implicates a liberty interest when it is made during the course of that employee's termination from employment."). Nor were the comments made in the midst of a demotion.Cf. Baden v. Koch, 799 F.2d 825, 831 (2d Cir. 1986) (demotion of Chief Medical Examiner one level to a position of Deputy amidst negative public comment concerning his ability implicated only a "weak liberty interest"). Plaintiff merely alleges that the accusations harm his future promotional opportunities. Not only is such an allegation merely conclusory, even if true, it is not sufficiently serious as to implicate the Due Process Clause. See Yuan v. Rivera, No. 96 Civ. 6628, 1998 WL 63404, at *5 (S.D.N Y Feb. 17, 1998) (stating that plaintiff's allegation that she suffered the loss of employment possibilities is too conclusory and insufficient because "[t]he deleterious effects of defamation, including the adverse impact on job prospects, are insufficient to establish the loss of a liberty interest"). The only concrete harm plaintiff suffered is the thirty-day suspension. However, this does not involve a deprivation of a right or status. See Neu, 869 F.2d at 667 ("[T]he 'plus' is not only significant damage to a person's employment opportunities but dismissal from a government job or deprivation of some other legal right or status."). Accordingly, plaintiff has not demonstrated a deprivation of any liberty interest.
2. Property Interest
Plaintiff also contends that defendants violated due process by misrepresenting his function and title for over five years and by lowering his Hay Point rating when he was entitled to have it raised. See FAC ¶¶ 164, 165. These acts "caus[ed] plaintiff to lose additional compensation and additional opportunities for recognition and promotion."Id. ¶ 165.
The "nature and contours" of claimed property interests are defined not by the Constitution, but by some independent source. Ezekwo, 940 F.2d at 782. To have a protected property interest, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). A plaintiff's interest in a benefit is a "property" interest for due process purposes if there are "such rules or mutually explicit understandings" — such as a statute, regulation, or contract — that support his claim of entitlement to the benefit and that he may invoke at a hearing. Perry v. Sindermann, 408 U.S. 593, 601 (1972). "[W]hen state law supports a party's legitimate claim of entitlement to a governmental benefit, that benefit cannot be stripped without procedural due process." Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170, 175 (2d Cir. 1991). Furthermore, although in certain circumstances contract rights are protectible under the Due Process Clause, see Ezekwo, 940 F.2d at 783, "the type of interest a person has in the enforcement of an ordinary commercial contract often is qualitatively different from the interests the Supreme Court has thus far viewed as property entitled to procedural due process protection." Martz v. Incorporated Vill. of Valley Stream, 22 F.3d 26, 30 (2d Cir. 1994) (quotation marks and citations omitted).
Here, plaintiff argues that New York law provides him with an entitlement to be classified according to his duties and to receive compensation commensurate with his enhanced duties. Plaintiff contends that defendants violated N.Y. Civ. Serv. Law § 61 (McKinney 1999) by failing to update plaintiff's MPQ. See Pl. Mem. at 21-22. That section prohibits "out-of-title work," which "exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time, unrelated to any temporary emergency requirement."Caruso v. Mayor, Vill. of South Glens Falls, ___ N.Y.S.2d ___, No. 86759, 2000 WL 1835870, at *1 (3d Dep't Dec. 14, 2000).
Plaintiff also contends that he had a contractual right created by defendants' course of conduct. See, e.g., Ezekwo, 940 F.2d at 783 (stating that defendants' course of conduct provided plaintiff with a contractual right to be Chief Resident, and that this interest is sufficiently serious to warrant the protections of the Due Process Clause). The Court need not decide whether this is a sufficient ground on which to base a Due Process claim because plaintiff has adequately alleged a Due Process claim based on a statutory entitlement.
In response, defendants argue that "[p]laintiff is a provisional managerial employee and, pursuant to § 65 of the New York State Civil Service Law, the appointment is 'at will' and creates no 'right' to his status nor can his status ripen into a permanent position. Indeed, the appointment is a privilege, not a right." Memorandum of Law In Support of Defendant's [sic] Motion to Dismiss the Complaint ("Def. Mem.") at 24 (citations omitted). However, the FAC does not allege that plaintiff is a provisional managerial employee. Even if he is a provisional manager, in certain circumstances, a provisional appointment may ripen into a permanent appointment. It is too early to reach a determination as to whether plaintiff is a provisional employee. Cf.Wilson v. Hevesi, No. 96 Civ. 1185, 1998 WL 351861, at *2-*3 (S.D.N.Y. June 29, 1998) (examining documents and facts outside of the pleadings to determine whether plaintiff was appointed as a provisional or permanent employee). Therefore, for the purposes of this motion, plaintiff is assumed to be an employee covered by section 61(2) of the Civil Service Law. Furthermore, at this preliminary stage I shall assume, without conclusively deciding, that a violation of section 61(2) warrants the protection of the Due Process Clause.
Throughout the FAC, the allegation that plaintiff is a provisional manager appears only once. In a discussion during which Gorman objected to plaintiff's Step II appeal, see supra Part II.D, "Gorman reminded plaintiff that plaintiff was only a provisional manager and that despite the fact that plaintiff has over ten years of service in the managerial title that plaintiff could be demoted at his discretion." FAC ¶ 131. However, plaintiff's use of the word "despite" makes clear that plaintiff does not consider himself a "provisional manager" and has not adopted the statement as a factual allegation.
The New York Court of Appeals has held that a provisional appointment ripens into a permanent appointment if: (1) the employee continued in the position for two months following the establishment of an eligibility list for the position; and (2) the examination failed to produce a list adequate to fill the position or the list was immediately exhausted following its establishment. See Becker v. New York State Civil Serv. Comm'n, 61 N.Y.2d 252, 255-56 (1984).
Neither plaintiff nor defendants address whether a violation of section 61(2) constitutes a due process violation. This Court has been unable to find a case directly on point. However, in Cieslinski v. Cassino, 78 F. Supp.2d 234, 237 (S.D.N.Y. 1999), the court stated that an analogous section of the Civil Service Law creates a protectible property interest. There, police officers claimed that they had been temporarily performing the duties of detectives and that they should be permanently designated detectives, pursuant to N.Y. Civ. Serv. Law § 58 (McKinney 1999). The Court stated: "I turn first to the question of whether plaintiffs have a property right in a promotion to detective pursuant to Section 58. They might, but only in one circumstance: if they were in fact temporarily assigned to perform the duties of a detective or investigator for a period exceeding 18 months. Should that set of facts pertain, then the law requires that they be promoted to the grade of detective and be paid accordingly." Id. at 236. Nevertheless, the court dismissed the due process claim because plaintiffs failed to adequately allege that a personnel officer determined that the plaintiffs had been performing duties that were the functional equivalent of detective. See id. at 236-37.
C. The Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment guarantees "a right to be free from invidious discrimination in statutory classifications and other governmental activity." Harris v. McRae, 448 U.S. 297, 322 (1980). It is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Berhanu v. New York State Ins. Fund, No. 91 Civ. 4956, 1999 WL 813437, at *18 (S.D.N.Y. Oct. 8, 1999). A claim of discrimination under the Equal Protection Clause is analyzed through the burden-shifting framework applied in Title VII claims. See Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 146 (2d Cir. 1999). Therefore, a plaintiff survives a motion to dismiss by meeting the minimal burden of making a prima facie showing of: (1) membership in a protected class; (2) qualification for the position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997). However, "[i]n order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994).
Plaintiff alleges that "[d]efendants, on the basis of race, intentionally discriminated against plaintiff in an attempt to destroy his career." FAC ¶ 169. While it is not entirely clear which adverse employment actions form the basis of plaintiff's discrimination claim, it appears that the claim is based solely on those adverse employment actions instigated by McIntosh. These actions include the February 18, 2000 disciplinary charges, the March 17, 2000 negative performance evaluation, and the May 30, 2000 disciplinary charges.
Even drawing every inference in plaintiff's favor, plaintiff could not succeed in demonstrating that any of the following acts were motivated by racial animus: (1) Quiery's promotion to "Manager of Classification and Exam Construction"; (2) Gorman's failure to update plaintiff's MPQ; (3) the lowering of plaintiff's Hay Point rating by Gorman; or (4) the lower merit increase plaintiff received as compared to other managers.
Defendants do not contest the first three factors of plaintiff's prima facie case. Rather, defendants argue that plaintiff has not alleged sufficient facts from which to infer discriminatory intent. See Reply Memorandum of Law In Support of Defendants' Motion to Dismiss the Complaint ("Def. Reply Mem.") at 7-8.
1. McIntosh's Racist Remark
Plaintiff first argues that an inference of discriminatory intent is reasonable because McIntosh's statement that plaintiff and Gorman are "made of the same cloth" is "a racial remark." FAC ¶ 134. This phrase, however, is at best ambiguous. Plaintiff and Gorman share characteristics other than race — such as gender — to which McIntosh could have been referring. Taken is isolation, this comment is "too vague to justify any plausible inference of a racially discriminatory intent." Tripp v. Long Island Univ., 48 F. Supp.2d 220, 225 (E.D.N.Y.) (statements by professor to black female student that she was "in the wrong department" and that she should not "come in here [the psychology department] because if you do, you're going to lose your credits" not sufficient to sustain an inference of discriminatory intent), aff'd, 201 F.3d 432 (2d Cir. 1999).
2. McIntosh's Pattern of Harassment and Favoritism
Plaintiff also devotes 45 paragraphs of the FAC, see FAC ¶¶ 81-126, to detail "a widespread pattern of discrimination engaged in by McIntosh against white managers and professionals and a pattern of favoritism on behalf of black professionals." Pl. Mem. at 28. First, plaintiff alleges that McIntosh "harassed" a white employee, Sara Giller, "falsely accused" her of insubordination, and unjustly rated her "unsatisfactory." FAC ¶¶ 82, 83. Second, plaintiff alleges that McIntosh "harass[ed]" Robert Trusewicz, a white Examination Manager, and gave him poor reviews even though he had consistently received reviews of "Superior/Excellent" by Gorman. Id. ¶ 86. Third, plaintiff contends that McIntosh blamed Kessler, "who had a reputation for being forthright, professional and a seasoned" Examination Manager, for the failures of two black clerical-administrative employees who had been promoted to the position of Associate Staff Analysts in the Exam Construction Unit. Id. ¶¶ 96, 97, 102, 103. Furthermore, although Kessler complained of the inequity in permitting the two black employees to keep their Associate Staff Analyst titles and compensation although they were only fulfilling their clerical-administrative duties, McIntosh refused to remedy the situation. Id. ¶ 99. In response to his complaints, McIntosh began to harass Kessler and unjustly gave him ratings of "[m]arginal." Id. ¶¶ 100, 104, 105.
Indeed, according to plaintiff, McIntosh sought to perpetuate this inequity even after Kessler's retirement. When Gorman was reviewing plaintiff's proposal to provide Exam Construction Analysts additional compensation — a proposal which did not include additional compensation for the two black Associate Staff Analysts — McIntosh persuaded the Associate Staff Analysts to file a complaint with the Equal Employment Opportunity Unit of the TA, claiming racial discrimination.See id. ¶¶ 110, 113, 115, 117, 119, 120.
Assuming these allegations true, as this Court must on a motion to dismiss, plaintiff has alleged a pattern from which a jury could infer that McIntosh intentionally discriminated against plaintiff. Allegations of such a pattern of discrimination are sufficient to defeat a motion to dismiss. Cf. Yusuf, 35 F.3d at 716 (denying motion to dismiss discrimination claim because allegations that Vassar College "has historically and systematically" discriminated against males in sexual harassment cases and that these males "are invariably found guilty, regardless of the evidence, or lack thereof" are "provable events that in the aggregate would allow a trier of fact to find that gender affected the outcome of the disciplinary proceeding").
D. The State Law Claims
Plaintiff also alleges three state law claims: quantum meruit; discrimination in violation of the City Administrative Code; and discrimination in violation of the State Executive Law. Defendants argue that plaintiff's failure to file a notice of claim, as required by N.Y. Pub. Auth. Law § 1212 (McKinney 1999), warrants dismissal of these claims. See Def. Mem. at 30.
Section 1212 provides, in relevant part, that:
1. In every action against the authority for damages, for injuries to real or personal property, or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority, its general manager or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.
N.Y. Pub. Auth. Law § 1212.
Defendants' claim is meritless. Courts have refused to interpret section 1212 literally and apply the notice of claim requirement to all actions for damages. Rather, courts have limited its application to tort actions. See, e.g., Brodie v. New York City Transit Auth., No. 96 Civ. 6813, 1998 WL 599710, at *10 (S.D.N.Y. Sept. 10, 1998) (holding that section 1212 is not applicable to employment discrimination claims because they are not tort actions). Neither plaintiff's quantum meruit claim nor his discrimination claims are tort claims. See, e.g., Aniero Concrete Co., Inc. v. New York City Constr. Auth., No. 94 Civ. 3506, 2000 WL 863208, at *10 (S.D.N.Y. June 27, 2000) (stating that quantum meruit is a quasi-contract claim); Zerilli v. New York City Transit Auth., 973 F. Supp. 311, 325 (E.D.N.Y. 1997) (holding that notice of claim requirement in section 1212 does not apply to employment discrimination claims); cf. Dworkin v. City of New York, No. 95 Civ. 10261, 1996 WL 673815, at *4 (S.D.N.Y. Nov. 20, 1996) (holding that notice of claim requirement of N.Y. Gen. Munic. Law § 50-e inapplicable to employment discrimination claims because such claims are not tort claims). Accordingly, section 1212 does not bar any of plaintiff's state law claims, none of which are tort claims.
Defendants also contend that the employment discrimination claims must be dismissed because plaintiff has not sufficiently alleged intentional race discrimination. See Def. Mem. at 31. However, for the reasons that the allegations of the FAC are sufficient to state an Equal Protection claim, they are sufficient to state a claim under the State Executive Law and City Administrative Code. See Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997) ("We have repeatedly noted that claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII."); Menes v. CUNY Univ. of New York, 92 F. Supp.2d 294, 307 (S.D.N.Y. 2000) (applying same standard under State Executive Law, City Administrative Code, and section 1983 Equal Protection Clause to determine whether there are sufficient facts from which to infer intentional discrimination).
IV. CONCLUSION
For the reasons stated above, defendants' motion to dismiss is granted in part and denied in part. Only plaintiff's section 1983 claims alleging retaliation in violation of the First Amendment and a violation of the Due Process Clause based on defendants' defamatory statements are dismissed with prejudice. A pretrial conference is scheduled for February 7, 2001 at 4:30 p.m.
SO ORDERED: