Opinion
05 Civ. 6467 (RJH).
September 5, 2006
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Castro brings this pro se action against defendant Metropolitan Transportation Authority ("MTA") under the Equal Protection Clause of the Fourteenth Amendment. Plaintiff complains that defendant violated his constitutional rights when it used a newly enacted age requirement to reject his application for employment as an MTA police officer. The defendant has moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, defendant's motion [10] is granted.
BACKGROUND
Plaintiff applied for a position as an MTA police officer in early 2002. From the outset, he was warned that the application process was lengthy and that passing one portion did not guarantee him a position. On April 20, 2002, plaintiff completed the MTA's written exam. On November 4, 2002, defendant informed plaintiff that he had passed the written exam and was invited to the March 16, 2003 physical exam. Defendant also informed plaintiff that, because of new legislation, applicants must now meet certain age requirements to remain eligible for a position as an MTA police officer. Upon arrival at the physical testing cite, plaintiff was told that he exceeded the new age limitation and was no longer eligible for employment.
Section 1266-h(2) of the New York Public Authority Law, enacted after plaintiff took the written exam but before he took the physical exam, limits eligibility to applicants that are "not less than twenty years of age as of the date of appointment nor more than thirty-five years of age as of the date when the applicant takes the written examination." As Castro was over 35 when he took the written examination, the MTA rejected his application.
Though plaintiff does not contest whether the new legislation was legitimately applied to him, past courts have allowed government entities to use newly passed age limits to reject applicants who have already begun the application process. See Peterson v. City of New York, 97 Civ. 4505 (LMM), 1998 WL 247530, at *7 (S.D.N.Y. May 14, 1998) (finding that employer's use of age limitation to reject plaintiff's application for position as police officer was constitutionally permissible, even though age limitation was enacted after plaintiff began the application process).
Plaintiff filed his original pro se complaint on April 27, 2004, arguing that the MTA violated the ADEA when it used the new age limitation to reject his application. In an order granting plaintiff's request to proceed in forma pauperis, Judge Mukasey, to whom this case was originally assigned, found that the ADEA did not provide plaintiff a basis for relief. He found that, if plaintiff wished to continue his claim, he must file an amended complaint alleging a violation of the Equal Protection Clause of the Fourteenth Amendment. (July 18, 2005 Order [3] ("Order") 3-4.) Additionally, he warned plaintiff: "[I]n bringing an equal protection challenge to an age classification plaintiff must allege facts that show that the New York legislature acted irrationally when it enacted a statute limiting the hiring age for MTA police appointments." (Order 3-4 (quoting Connolly v. McCall, 254 F.3d 36, 42 (2d Cir. 2001).)
The ADEA does not protect plaintiff, who is thirty-eight, because the ADEA only protects workers over the age of forty. (Order 2 (citing O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996)); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000). However, even if the ADEA did apply to plaintiff, a statutory exception allows state agencies to discriminate on the basis of age when hiring public safety officers. ( Id. at 2 n. 5 (citing 29 U.S.C. § 623(j)); see also Kimel, 528 U.S. at 68-69; Feldman v. Nassau County, 349 F. Supp. 2d 528, 533 (E.D.N.Y. 2004)).)
On September 19, 2005, plaintiff filed his amended complaint. Shortly thereafter, on September 30, 2005, this case was reassigned to this Court. Defendant filed the pending motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff failed to state a claim upon which relief can be granted. In the alternative, defendant requests summary judgment. Plaintiff has not submitted opposition papers.
Rule 7.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York provides:
Except as otherwise permitted by the court, all motions and all oppositions thereto shall be supported by a memorandum of law. . . . Willful failure to comply with this rule may be deemed cause for the denial of a motion of for the granting of a motion by default.
Therefore, plaintiff's failure to submit any opposition papers or respond in any way provides sufficient grounds in and of itself to grant defendant's motion to dismiss. See Vargas v. Boston Chicken, Inc., 269 F. Supp. 2d 92, 98 (E.D.N.Y. 2003) (noting Local Rule 7.1 and granting motion to dismiss cross-claim upon defendant's failure to submit opposition papers); Hercules Cement Co. v. Marotta, No. 90 Civ. 1368 (TPG), 1997 WL 620815, at *1 (S.D.N.Y. Oct. 8, 1997) (granting motion to dismiss cross-claim based upon third party plaintiff's "neglect to file any opposition whatever").
STANDARD
When considering a 12(b)(6) motion to dismiss, a court must accept plaintiff's factual allegations as true and may not dismiss the complaint unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This principle applies with particular force when the complaint alleges a civil rights violation, or when the complaint is brought pro se. Id. (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Also, a court must afford a pro se plaintiff at least one opportunity to amend his complaint when a liberal reading of it gives any indication that a valid claim may be stated. Id. (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).DISCUSSION
Classifications based on age are subject to a rational-basis test. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). To survive a constitutional challenge, an age classification must be rationally related to a legitimate government interest. Id. If a plaintiff fails to allege facts that show that the legislature acted irrationally when passing the challenged statute, he has not alleged a constitutional violation and his complaint may be dismissed. See Connolly, 254 F.3d at 42 (complaints that attack the constitutionality of a statutory classification may be dismissed on the pleadings and prior to discovery if, after assuming plaintiff's factual allegations are true, there still exists a rational reason for the law); see also Doyle v. Nassau County, 786 F.2d 523, 528 (2d Cir. 1985), cert. denied, 479 U.S. 825 (1986), superseded on other grounds by statute, 29 U.S.C.A. § 623(j), as recognized in Petrelli v. City of Mount Vernon, 9 F.3d 250 (2d Cir. 1993) (affirming 12(b)(6) dismissal of plaintiff's age discrimination complaint challenging maximum age limit for hiring police officers because, even though they lacked "a full trial record" on the point, there was still a reasonable basis for age limitation); Crane v. Schneider, 635 F. Supp. 1430, 1433 (E.D.N.Y. 1986) (dismissing plaintiff's complaint that adoption of age thirty-six as cutoff for eligibility for positions of deputy sheriff position violated Fourteenth Amendment because there is a "clear rational relationship" between age limit and need for physically qualified employees).
In his amended complaint, Castro claims that the MTA "violated his rights as a United States citizen." (Compl. 1.) He argues that, because of his age, he was "treated differently" than other passing candidates and "not afforded the same opportunity as other[s]." ( Id.) Lastly, he states that the age limitation "should be abolished or amended" because it "completely wipes out experienced candidates that bring a ton of knowledge, maturity and life experiences." ( Id.) Construing the complaint liberally, plaintiff still fails to allege any facts that could reasonably be construed as proof that the New York legislature acted irrationally when amending section 1266-h. See Connolly, 254 F.3d at 42 ("[R]ational basis review is not [an examination of] the wisdom, fairness, or logic of legislative choices."). Consequently, plaintiff fails to assert a constitutional violation and, pursuant to rule 12(b)(6), his complaint is dismissed.
CONCLUSION
Plaintiff has been given the opportunity to file an amended complaint. As plaintiff still fails to allege any facts that could reasonably provide proof that the legislature acted irrationally when it amended section 1266-h, defendant's motion to dismiss [10] is GRANTED. The Clerk of the Court is directed to close the case.
SO ORDERED.