Germany v. N.Y.S. D.O.C.S.

Full title: WARREN GERMANY Plaintiff, -v- N.Y.S. D.O.C.S., SING SING C.F., B. FISCHER…

Court: United States District Court, S.D. New York

Date published: Sep 18, 2003

03 Civ. 148 (GEL) (S.D.N.Y. Sep. 18, 2003)

Opinion

03 Civ. 148 (GEL)

September 18, 2003

Warren Germany, Kevin P. McCaffrey, Office of the New York State Attorney General (Eliot Spitzer, of counsel), for Defendants

OPINION AND ORDER

GERARD E. LYNCH, District Judge

Plaintiff Warren Germany brings this employment discrimination action pro se against his former employer, the New York State Department of Correctional Services ("DOCS"), and four supervisors at Sing Sing Correctional Facility ("Sing Sing"): Superintendent Brian Fischer, Deputy Superintendent of Security William Connolly, Lieutenant Michael Leghorn, and Sergeant Jim McKenna. The action is predicated on a charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("NYSDHR") on June 24, 2002, alleging racial discrimination and retaliation. Germany received a "Right to Sue" letter from the EEOC on October 11, 2002, and filed the original Complaint in this action eighty-nine days later, on January 8, 2003. Germany filed the Second Amended Complaint ("Compl.") on February 27, 2003, alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e to 2000e-17 ("Title VII"). Broadly construed, as befits a pro se complaint, plaintiff also alleges violations of his civil rights pursuant to 42 U.S.C. § 1983. The defendants move to dismiss all or parts of the Complaint on the grounds of lack of subject matter jurisdiction, failure to exhaust administrative remedies, and failure to state a claim upon which relief can be granted. After careful consideration of the parties' submissions, the motion is granted in part and denied in part.

FACTS

The following facts are drawn from plaintiffs complaint. which must be taken as true for purposes of this motion to dismiss.

Warren Germany is an African-American man who was employed by DOCS as a correctional officer at Sing Sing at the time of the alleged discrimination, the period from March 2001 to February 2003.¹ He complains primarily that several discrimary actions were taken against him on the basis of race and/or in retaliation for his charges of discrimination. Because the facts underlying the different disciplinary charges are intertwined, the allegations of the complaint will be reported here chronologically, rather than separated according to the particular incident involved, but the incidents relate primarily to missing DOCS equipment and alleged time and attendance violations.

1 The record does not give any indication of the length of Germany's employment with DOCS or the duration of his tenure at Sing Sing.

On March 1, 2001, defendant Leghorn discovered three tactical vests missing from the inventory of the Correction Emergency Response Team ("CERT"), of which Germany was a member. (Compl. ¶ 8.) Contrary to DOCS regulations, Leghorn failed to report the vests as missing or lost (id.), and apparently no attempt was made to hold Germany responsible for the missing equipment. Roughly two months later, on May 8, Leghorn, a white man with an alleged history of discrimination against African-American and Hispanic officers,² removed Germany from CERT for violating CERT's attendance policy. (Id ¶ 9.) However, while removal from CERT requires three absences, Germany in fact had missed only two meetings. (Id. ¶ 10.) On May 21, Germany requested reinstatement from Superintendent Fischer, reciting his compliance with the attendance policy, but Fischer took no action. (Id ¶ 11.) Germany turned in all or substantially all of his CERT equipment to Quartermaster Correction Officer J. Madison on May 28.³ (Id. ¶ 20.) On June 21, however, and again on July 9, Germany received formal orders to produce one of the missing CERT vests.⁴ (Id. ¶ 34.)

2 Germany alleges that Leghorn has been cited by DOCS on numerous occasions for assaulting correctional officers, filing false Notices of Discipline, and harassment of correctional officers. (Compl. ¶ 37-38.)

3 Plaintiff apparently failed to return a CERT baseball cap.

4 The Complaint does not identify the party responsible for issuing the order.

On June 12, Sergeant Jim McKenna, a white man who was Leghorn's subordinate and Germany's supervisor, allegedly filed a false tardiness report against Germany, resulting in a payroll deduction. (Id. ¶ 25.) On July 13, Germany requested in writing that Leghorn produce the letter he had written to Fischer recommending Germany's removal from CERT. (Id ¶ 21.) Leghorn took no action. (Id 126.) Germany also filed a complaint with Time and Attendance Lieutenant Capra protesting the June 12 tardiness report. (Id ¶ 22.) On July 20, Quartermaster Madison represented to Leghorn that Germany had in fact returned all or substantially all of his CERT equipment. (Id 1f 23.) The next day, McKenna filed another false tardiness report against Germany, (id. ¶ 25), and four days later, on July 25, McKenna physically threatened Germany (id. ¶ 24).⁵ Germany complained to Superintendent Fischer about McKenna's harassment on July 31, but Fischer failed to respond. (Id. ¶ 24.) On the same day, McKenna issued Germany a disciplinary notice requiring him to attend a formal counseling session. (Id ¶ 25.)

5 Germany claims that McKenna said: 'To Germany you got a problem with me, come on you and me let's go out to the back docks and take care of this right now!" (Compl. ¶ 24.)

At the counseling session, held on August 3 and apparently attended by Deputy Superintendent William Connolly, both tardiness citations were removed from Germany's personnel file. (Id. ¶ 26.) On the same day, Germany again requested of both Leghorn and Connolly that Leghorn produce the letter concerning his removal from CERT, again to no avail. (Id. ¶ 26, 27.) Also on August 3, Germany agreed at a meeting with Connolly to pay for the missing CERT vest under threat of suspension.⁶ (Id. ¶ 29.)

6 It is unclear whether this meeting was the same event as the counseling session of the same day, which Connolly attended.

On September 26, Germany received a Notice of Discipline ("NOD"), alleging violations of codes of conduct, comportment, communication, and language, as well as failure to comply with a direct order. (Id. ¶ 30.) The NOD was based on allegations made by McKenna, which Germany claims were false. (P. App. Ex. L.) In October, in response to a memorandum in which Germany claimed that he had never received a CERT vest. Connolly reiterated the threat of suspension, increased the price Germany would have to pay 10 avoid suspension, and indicated that he would not reimburse Germany for the payment if the vest was found. (Id ¶ 31.) Around the same time, Connolly formally reported the CERT vests as missing⁷, and requested an investigation by the Inspector General. (Id ¶ 36.) Germany was interviewed by a member of that office on December 10. (Id. ¶ 32.) On December 16, Germany filed a complaint with "1st Deputy Superintendent Phillips and Colonel Kirkpatrick" about being removed from CERT without due process of law.⁸ (Id. ¶ 33.) On March 7, 2002, Germany was issued a second NOD, this time based on his failure to produce the CERT vest and to comply with the orders of June 21 and July 9, 2001, to do so. (Id. ¶ 34.) The September 26 NOD was dismissed by an arbitrator on March 7, 2002. (Id. ¶ 35.)

7 Germany alleges that Connolly and Fischer, as well as Leghorn, knew that the vests had been missing since March 1. (Compl. ¶ 36.)

8 The Complaint does not further identify these officers or their assignments.

Germany filed a charge with the EEOC and the NYSDHR on June 24, 2002. (Id ¶ 37.) After receiving a "Right to Sue" letter from the EEOC on October 11, Germany filed suit in this Court on January 8, 2003, alleging continuing violations of Title VII and of his constitutional rights. In February 2003, an arbitrator found Germany guilty of the charges contained in the second NOD. (Id ¶ 39.) Germany requested reconsideration of the decision from the Deputy Commissioner of Administrative Services, submitting nine positive performance evaluations. (Id ¶ 40.) This appeal was apparently unsuccessful. Germany has since been fired by DOCS.

The Complaint contains an additional allegation not referred to in the EEOC charge. Germany claims that he was denied assignment to Weapons Instructor School (Compl. ¶ 12), allegedly on the basis of his time and attendance record (id), and that this proffered reason was really a pretext for racial discrimination. (Id. ¶ 40.) Germany claims that the denial of this assignment deprived him of due process and equal protection. (Id ¶ 13.) While Germany alleges that Fischer, Connolly, and Leghorn were the parties responsible for the failure to process or approve his assignment request (id. ¶ 12), this undated allegation centers on a sufficiently distinct factual nexus as to warrant separate consideration

DISCUSSION

I. Standard for Dismissal Under 12(b)(6)

The Supreme Court has recently clarified the standard of review on a motion to dismiss claims asserted under Title VII. A complaint need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)). On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept "as true the facts alleged in the Complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and may grant the motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Thomas v. City of New York. 143 F.3d 31, 36 (2d Cir. 1998) (citations omitted); see also Bernheim v. Litt, 79 F.3d 318, 321 (2dCir. 1996) (when adjudicating motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" (internal quotation marks and citations omitted)). Where, as here, a plaintiff is proceeding pro se, the court must liberally construe the complaint. See,e.g., Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). This duty is particularly strong when a pro se plaintiff alleges violation of his civil rights. Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150(2d Cir. 1993). All reasonable inferences are to be drawn in the plaintiffs favor, which often makes it "difficult to resolve [certain questions] as

a matter of law." In re Independent Energy Holdings PLC, 154 F. Supp.2d 741, 747 (S.D.N.Y. 2001).

II. Title VII Claims

Title VII requires a plaintiff, prior to filing suit, to present a claim to the EEOC. 42 U.S.C. § 2000e-5(f)(1); Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). The suit may then only assert "those claims that either were included in or are 'reasonably related to' the allegations contained in [the] EEOC charge." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001). The exhaustion of remedies requirement is designed "to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. United States Immigration Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985). Because the plaintiff did not include either the denial of assignment to Weapons Instructor School or his removal from CERT in his EEOC charge under any theory, he cannot use these two incidents as the basis for any claim brought under Title VII.

It is well settled that only employers, and not individual employees or supervisors, are subject to liability under Title VII. Tomka v. Selier Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). For this reason, plaintiffs Title VII claims against defendants Fischer, McKenna, Connolly, and Leghorn are dismissed.

To the extent plaintiff asserts claims under Title VII against DOCS, the Court reads the pro se Complaint liberally and finds that three different types of Title VII claims are alleged. First, plaintiff alleges differential treatment claims based upon the discrete events including false tardiness reports and NODs. Second, plaintiff alleges retaliation claims based upon the tardiness reports and the NODs and the termination of plaintiff s employment in retaliation for his filing of charges with the EEOC. Third, plaintiff alleges a hostile work environment claim regarding some or all of the facts alleged in the Complaint. For the reasons that follow, the Court finds that: (1) The claim for differential treatment survives as to all events that occurred after August 27, 2002. All events that occurred before this date are time-barred, and may not be used as a basis for a differential treatment claim.⁹ (2) The claim for retaliation similarly survives as to events that occurred after August 27, 2002. All events that occurred prior to this date are time-barred and may not be used as the basis for a retaliation claim.¹⁰ (3) The hostile work environment claim survives the motion to dismiss.

9 Discovery may be had into these time-barred events only to the extent that they shed light on events which took place after August 27, 2002.

10 Again, discovery may be had into time-barred events, but only to the extent that they shed light on any events that took place after August 27, 2002.

A. Differential Treatment Claims

A claim of differential treatment based on race is grounded upon discrete actions taken by an employer which serve "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a). In essence, a differential treatment claim is one in which the plaintiff claims that he or she was treated differently than other similarly situated individuals on account of his or her race. International Brotherhood of Teamsters v. United States, 413 U.S. 324, 335-36 n. 15 (1977). It is well-established that "proof of discriminatory motive is critical" in establishing his differential treatment claim, although "it can in some situations be inferred from the mere fact of differences in treatment." Id. The discrete adverse employment actions of which Germany complains are the false tardiness reports, the notices of discipline, and the termination of his employment by DOCS.¹¹ For the following reasons, only those discrete adverse employment actions which occurred after August 27, 2001, may serve as the basis for differential treatment claims.

11 Although Germany also complains of the denial of assignment to Weapons Instructor School and his dismissal from CERT, these two incidents cannot serve as the basis of a differential treatment claim under Title VII for the reasons stated above, that is, because Germany failed to include this allegations in his EEOC charge.

Under 42 U.S.C. § 2000e-5(e)(1) a plaintiff who "has initially instituted proceedings with a State or local agency with authority to grant or seek relief from the contested practices has 300 days after the contested practices occurred to file a claim based upon these incidences with the EEOC. Because plaintiff filed his EEOC charge on June 24, 2002, only events that occurred in the 300 days prior to that date may serve as a basis for the claim. The allegedly false tardiness reports and NODs and other actions that occurred before August 27, 2001 (300 days before June 24, 2002) may not be used as the basis for differential treatment claims.See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122-23 (2002).

Because plaintiff has alleged facts sufficient to state claims of differential treatment occurring after August 27, 2001 (i.e., that the September 26, 2001, and March 7, 2002, NODs and the termination of his employment were motivated by racial animus), such claims will survive this motion to dismiss.

B. Retaliation Claim

Title VII prohibits discriminatory acts taken by an employer against an employee "because [an employee] has opposed any practice made an unlawful employment practice or because he has made a charge [with the NYSDHR or the EEOC]." 42 U.S.C. § 2000e-3(a).

The statute of limitations which applies to the plaintiffs differential treatment claims, see section IA above, also applies to his retaliation claims. Morgan, 536 U.S. at 110. Thus, Germany may only bring retaliation claims for actions taken by DOCS after August 27, 2001. This potentially leaves Germany with two separate theories of retaliation based on the allegations in his Complaint. First, Germany may claim that his employment at DOCS was terminated in retaliation for filing his EEOC charge. Second, because an informal complaint to a supervisor can constitute a protected activity under Title VII, Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992), Germany may advance a retaliation claim based on the theory that the September 26, 2001, and March 7, 2002, NODs were issued in retaliation for his complaints to his supervisors about discriminatory actions undertaken by Leghorn. Nothing prevents the plaintiff from augmenting or supplementing his possible claims for retaliation with facts that may be uncovered in discovery.

Because plaintiff has alleged facts sufficient to state claims of retaliation, such claims will survive this motion to dismiss.

C. Hostile Workplace Claims

Title VII is violated when "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment/" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). A hostile environment claim is different than claims of discrimination based on differential treatment or retaliation in that a hostile environment claim is based on the cumulative effect of individual acts. Morgan, 536 U.S. at 115. Unlike a specific discrete event such as a disciplinary action, a hostile work environment continues over time, and is created and evidenced by a series of separate acts that collectively constitute one unlawful employment practice.

Because a hostile environment claim is necessarily one that involves acts and conduct repeated over a period of time, the statute of limitations for filing a hostile environment charge with the EEOC is more flexible than it is for discrete acts of discrimination. If at least one of the acts comprising the hostile work environment occurred in the 300 days before the charge was filed with the EEOC, then the entire period of the hostile environment may be considered as part of the claim, even if there are acts occurring outside the filing period. Morgan, 536 U.S. at 117. Applied to this case, that means that if at least one action allegedly contributing to a hostile work environment occurred after August 27, 2001, then the Court may consider events that occurred before August 27, 2001, and to the extent that they are a part of the series of events creating the hostile workplace.

Here, plaintiff does not enumerate which specific events allegedly created a hostile work environment. The Complaint cites a series of discrete employment actions that occurred in 2001, such as the tardiness reports and NODs, as well as one threat of a physical altercation. (Compl. ¶¶ 24, 25, 30) At least some of the disciplinary actions occurred after August 27, 2001, and are thus within the statutory filing period. It appears that the pro se plaintiff intends these allegations to comprise a claim for a hostile workplace caused by repeated harassing administrative and disciplinary actions against him. Under the broad reading accorded to pro se plaintiffs, the Court finds that the Complaint states a claim for a hostile work environment.¹² Since some of the events complained of are within the statutory filing period, the Court may consider events that occurred before the filing period, that is, before August 27, 2001. to the extent that those events form part of the same hostile environment claim.

12 In so ruling, the Court expressly does not reach any legal conclusion that the specific events referred to in the Complaint, if proved and without more, would be sufficient to permit a reasonable juror to find the elements of a hostile work environment claim. Defendants' motion to dismiss does not raise this issue; the liberal reading accorded to pro se pleadings impels the Court to read the pleading to imply connective allegations that may or may not have been intended by plaintiff and may or may not prove to be present; and in a case that will proceed to discovery in any event on the differential treatment and retaliation claims, and where the hostile environment claim will not significantly expand discovery, judicial efficiency favors deferring more careful consideration of the sufficiency of the hostile environment claim until a factual record has been developed.

III. Section 1983 Claims

While, on its face, Germany's Complaint alleges violations of Title VII, under a broad reading it could also be construed to allege claims under § 1983 for violations of due process and equal protection. To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law; and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States. Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

To the extent that the Complaint states claims for damages under § 1983 against DOCS, those claims are dismissed due to the sovereign immunity of the State of New York. The Supreme Court has declared a general principle of state immunity from private suit in federal court unless the state has consented to suit or Congress has explicitly and constitutionally abrogated the state's immunity. See,e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 553 U.S. 613, 618 (2002); McGinty v. New York, 251 F.3d 84, 90-91 (2d Cir. 2001). "An official arm of the state," such as the New York State Department of Corrections, "enjoys the same Eleventh Amendment immunity from suit in federal court as is enjoyed by the state itself."Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). The State of New York and its agencies have not consented to suit in federal court. See Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 38-40 (2d Cir. 1977).

However, the State's immunity is not shared by state officers to the extent that the suit seeks prospective injunctive or declaratory relief or seeks damages from the officers in their individual capacities. Ex parte Young, 209 U.S. 123, 159-60 0908): see Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635 (2002); Edelman v. Jordan, 415 U.S. 651, 664 (1974). Therefore, plaintiff may bring § 1983 claims against individual officers who, acting under color of state law, violated his civil rights, subject to the restrictions outlined below.

Because the timely filing requirements of Title VII do not apply to actions brought under § 1983, Germany is theoretically able to bring a § 1983 claim based upon any of the incidents contained in his Complaint. See Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994) (holding that Title VII is not the exclusive remedy for state employees whose claims derive from a violation of Constitutional rights.) For the reasons stated below, the Court finds that Germany has adequately alleged violations of equal protection with respect to the dismissal from CERT, the termination of his employment, and the various false disciplinary actions taken against him during the course of his employment. All other § 1983 claims are dismissed.

A. Due Process Claims

Germany alleges that the denial of assignment to Weapons Instructor School denied him due process of law (Compl. ¶ 19) and that, more generally, by "fail[ing] to follow mandated [d]irectives, [p]olicy, and [p]rocedure in a fair and impartial manner' (Id. ¶ 41) the defendants have violated his rights to due process. Neither of these allegations are sufficient to state a claim.

The Due Process Clause protects against deprivation of "life, liberty or property" without due process of law. U.S. Const, amend. XIV, § 1. With respect to the failure to assign, Germany fails to allege a property interest protected by the Due Process Clause. Germany claims that he was better qualified than other, successful applicants for assignment to Weapons Instructor School because he had received a higher score on a placement exam. (P. Memo, at 8.) Under New York law, even a civil servant who has received the highest score on a competitive examination does not acquire any legally protected interest in an appointment to the position for which the examination was given. Cassidy v. Municipal Civ. Serv. Commission, 37 N.Y.2d 526, 529 (1975). The Due Process Clause does not create the property interests that it protects, rather "[s]uch property interests are 'created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Luck v. Mazzone, 52 F.3d 475, 477 (2d Cir. 1995) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Because the plaintiff had no "legitimate claim of entitlement,"Roth, 408 U.S. at 577, to a position at Weapons Instructor School, he cannot base a denial of due process claim on the denial of such a position.

The Complaint's blanket allegation that the defendants have failed "to follow mandated [d]irectives, [p]olicy, and [p]rocedure in a fair and impartial manner" (Compl. ¶ 41), is so conclusory and featureless as to fail the requirements of notice pleading, which require the plaintiff to "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests" Conley v. Gibson, 355 U.S. 41, 47 (1957) (emphasis added). While the Court has an obligation to construe a pro se complaint to state every argument which it could fairly be read to propose, the Court cannot supply featureless allegations such as these with the specificity necessary to avoid dismissal.

B. Equal Protection Claims

Germany alleges two violations of the Equal Protection Clause: (1) the denial of assignment to Weapons Instructor School (Compl. ¶ 19); and (2) that the actions that constitute his hostile work environment claim are also denials of equal protection (Id. ¶ 42). While Germany's allegations concerning the denial of assignment fail for the reasons stated below, the claims based upon the false disciplinary actions and the other incidents detailed in the Complaint survive the motion to dismiss.

The Equal Protection Clause of the Fourteenth Amendment directs that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. The Equal Protection Clause is violated "when the state distinguishes between individuals based on unreasonable, arbitrary, or capricious differences that are irrelevant to a legitimate government objective."Bernheim, 79 F.3d at 323 (quotation marks omitted). In order to state race-based equal protection claim, "a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race." Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). See also Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that a racial discrimination claim under the Equal Protection Clause must allege discriminatory purpose).

In support of his equal protection claim based on the failure to assign, Germany alleges that other employees were allowed to enroll in Weapons Instructor School before having fully qualified. (P. Mem. at 8.) Even accepting this allegation as true, no inference that Germany has been treated differently from other similarly situated employees can be drawn from this. The Complaint identifies six individuals assigned to the School whom Germany believes are less qualified than he is. Three of these employees are white, and three are African-American. (Compl. ¶¶ 13-18.) Thus, on the face of the Complaint, the facts pleaded refute any contention that the reason Germany was not selected was because of his race. See Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (explaining that a plaintiff can plead himself out of court by alleging facts which show that he has no claim, even while under no obligation to plead such facts). While Germany has alleged that Leghorn (who has a history of racially motivated acts), and Fischer (who knew of Leghorn's history and failed to do anything to prevent further racial discrimination), were on the selection committee, this allegation is not sufficient to support an inference of racial animus. Even assuming the truth of Germany's allegation, half of the allegedly less-qualified applicants assigned to the school by Leghorn and Fischer are of the same race as the plaintiff.

With respect to the false disciplinary actions and the other incidents detailed in the Complaint, the allegation of the denial of equal protection states a claim against all those defendants personally involved committing those actions. In order to extend liability arising out of these incidents to supervisory parties, the supervisory parties must have been personally involved in the acts which constitute the Constitutional violation. "A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort." Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). Connolly and Fischer, for example, may be found liable only if, in supervising Leghorn and McKenna, they exhibited gross negligence or deliberate indifference to a high risk that Leghorn and McKenna would violate Germany's constitutional rights, and that neglect caused Leghorn and McKenna to violate Germany's rights.

See id.

CONCLUSION

The defendants' motion to dismiss is DENIED with respect to plaintiffs Title VII differential treatment and retaliation claims based on incidents which occurred after August 27, 2001, as against DOCS; plaintiffs Title VII hostile work environment claim as against DOCS; and plaintiffs § 1983 claims alleging denials of equal protection as against the individual defendants. The motion is GRANTED with respect to plaintiffs Title VII claims against the individual defendants; plaintiffs § 1983 claims against DOCS; plaintiffs due process claims; and plaintiffs equal protection claim based on the denial of assignment to Weapons Instructor School.

SO ORDERED