Opinion
No. 04 Civ. 9333 (LAK).
February 16, 2005
MEMORANDUM AND ORDER
Plaintiff, an African-American sergeant employed by the New York City Police Department, claims that he has been wrongfully denied promotion to lieutenant, subjected to disciplinary monitoring, denied the supervisory authority of a sergeant, and wrongfully continued on modified assignment because of his race in violation of the Equal Protection Clause of the Fourteenth Amendment. He claims also that he was denied due process of law in that he was not invited to appear before a Career Advancement Review Board ("CARB") in connection with his possible promotion to lieutenant and was falsely stigmatized in a variety of ways. The complaint, which rests on 42 U.S.C. §§ 1981, 1983 and 1985(3), includes as well a variety of state law claims, including a prayer for relief of the sort typically available in the state courts by means of an Article 78 proceeding. Defendants move to dismiss the complaint.
1. Defendants first challenge the sufficiency of the allegations of racial discrimination on the ground that the complaint did not adequately allege facts suggesting that the adverse employment decisions complained of occurred in circumstances giving rise to an inference of discrimination, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). As they now acknowledge, however, this argument is baseless in light of Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Their suggestion that plaintiff should be compelled to amend his complaint to plead facts more fully is not well taken.
2. Defendants correctly point out that plaintiff's claims, to the extent they seek compensation for events that occurred prior to November 29, 2001, are time barred. This is not seriously disputed.
3. Defendants challenge plaintiff's procedural due process claim on the grounds that he lacks any protected property interest in the promotion to lieutenant or in any of the other job assignments and, in any case, that the existence of the Article 78 remedy in the state courts is all the process that is due. It is necessary to consider only the first of these contentions.
In order to prevail in such an action, a plaintiff must "first identify a property right, second show that the State has deprived him of that right, and third show that the deprivation was effected without due process." Local 342, Long Island Public Serv. Employees, UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994) (quoting Mehta v. Surles, 905 F.2d 595, 598 (2d Cir. 1990) (per curiam)). In order to have a property interest that is subject to due process protection, a plaintiff "must have more than a unilateral expectation of it. [The plaintiff] must, instead, have a legitimate claim of entitlement." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); Irwin v. City of New York, 902 F. Supp. 442, 447 (S.D.N.Y. 1995). Protectible property interests "are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577.
Plaintiff does not claim that any of the personnel actions complained of affected property interests except his promotion to lieutenant and the allegedly associated CARB appearance, and he is mistaken as to those. So far as the promotion is concerned, New York law gave plaintiff, upon passing the lieutenant's examination, the right only to be considered for promotion. See N.Y. CIV. SERV. L. § 61, subd. 1. His affidavit establishes that he received consideration. Peters Aff. Ex. A. He had no property interest in the promotion itself. McMenemy v. City of Rochester, 241 F.3d 279, 286-87 (2d Cir. 2001). Nor has plaintiff shown that he had any right to appear before the CARB, which, insofar as is relevant here, exists only to review candidates "whose backgrounds reveal outstanding issues that require clarification." N.Y.C. Police Department Organization Guide 101-23.
4. In order to demonstrate a "stigma-plus" due process violation, plaintiff must show "(1) the utterance of a statement 'sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false; and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights." Sadallah v. Valley View Country Club, Inc., 383 F.3d 34, 38 (2d Cir. 2004). Here, the complaint alleges that the defendants have issued false and stigmatizing statements to the media that have damaged plaintiff's reputation and career, but it does not indicate what they were, much less demonstrate that they were capable of being, and in fact were, false. Nor does it assert any connection between any statements to the media and any state-imposed burden or alteration of plaintiff's rights or status. The attempt in plaintiff's memorandum to remedy these failures falls short.
5. Defendants contend in any case that the complaint does not state a legally sufficient claim under the federal civil rights statutes because it fails adequately to allege a basis for municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978), and its progeny. Plaintiff responds that "[t]he actions of the defendant Kelly [the police commissioner] as the highest governmental executive of the NYCPD with plenary authority constitutes municipal policy and practice under Pembaur v. City of Cincinnati, 475 U.S. 112 (1989)." Pl. Mem. 18. He does not contend that the complaint adequately alleges a basis for municipal liability apart from actions attributed directly to Commissioner Kelly. Defendants rejoin that the police commissioner has authority to take various personnel actions, but that the City Charter and other applicable law vest authority for making personnel policy elsewhere.
During the period with respect to which this action is timely (i.e., after November 29, 2001), Commissioner Kelly is alleged to have been involved in plaintiff being passed over for promotion to lieutenant (cpt. ¶ 33), to have directed that plaintiff not supervise subordinates ( id. ¶ 35) and refused to remove plaintiff from modified assignment ( id. ¶ 44). See id. ¶ 43.
While it may seem self evident that allegedly discriminatory personnel actions by the police commissioner constitute municipal policy sufficient to cast the City in damages, the matter actually is more complex. In Davis v. City of New York, No. 86 Civ. 6345 (SWK), 1990 U.S. Dist. LEXIS 14006 (S.D.N.Y. Oct. 22, 1990), Judge Kram, on the basis of a thorough analysis of pertinent state and municipal law, concluded that such actions by the police commissioner did not reflect City policy.
Here, the City first tendered its argument with respect to the police commissioner's authority in its reply memorandum. Plaintiff therefore has not had an opportunity to respond. As a complaint may not be dismissed on a Rule 12(b)(6) motion unless it is clear that the plaintiff could prove no facts under it that would entitle it to relief, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957), dismissal as to the City with respect to the allegations of discriminatory actions by Commissioner Kelly at this stage would be inappropriate.
6. The defendants next seek dismissal of plaintiff's Section 1985(3) claim on the ground that the complaint fails adequately to allege a conspiracy to deprive plaintiff of his civil rights, adding that the City and its agencies and officials are incapable of conspiring in violation of the statute. In substance, they argue that the City cannot conspire with itself.
This Court dealt with the latter question in Johnson v. Nyack Hospital, 954 F. Supp. 715 (S.D.N.Y. 1997), where it wrote the following:
"The intraenterprise conspiracy doctrine is drawn from Section 1 of the Sherman Act, 15 U.S.C. § 1, which prohibits contracts, combinations and conspiracies in restraint of trade. The evil to which that statute is directed is concerted decisions of two or more business entities to take action 'that, in a competitive world, each would take separately.' Stathos v. Bowden, 728 F.2d 15, 21 (1st Cir. 1984) (Breyer, J.) In consequence, the statutory requirement of a plurality of actors is not satisfied by joint action of wholly owned subsidiaries of a single entity, unincorporated divisions of a company, or employees of a single entity acting within the scope of their employment. E.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984); VII PHILLIP E. AREEDA, ANTITRUST LAW ¶¶ 1462-74 (1986) ("AREEDA").
"Efforts to import this principle to Section 1985(3) have met with varying results. Some circuits have rejected it outright or confined it to the narrowest of circumstances. Others, however, have restricted Section 1985(3) on the basis of the antitrust analogy. The Second Circuit falls into this group, although the extent of its restriction of Section 1985(3) claims is yet to be fully defined.
"In Girard v. 94th Street and Fifth Avenue Corp., 530 F.2d 66 (2d Cir.), cert. denied, 425 U.S. 974 (1976), the plaintiff charged a cooperative apartment corporation and its directors with having declined to approve the assignment of a lease to her on the ground of her gender. A divided panel of the Second Circuit affirmed dismissal of the Section 1985(3) claim, essentially on the view that the corporation and its directors, who it viewed as having been sued only for actions taken in their capacities as such, were incapable as a matter of law of forming a Section 1985(3) conspiracy. Id. at 71-72. In doing so, however, it noted that the action complained was that of a single policy making body — the board of directors — and laid considerable emphasis on the fact that none of the individual defendants was alleged to have been 'motivated by any independent personal stake in achieving the corporation's objective.' Id. See also Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 493 U.S. 1003 (1978) (law school faculty and trustees incapable of conspiring to discharge professor).
"Plaintiff seizes on this latter comment to argue that his claim comes within Girard because the requisite independent personal motive is supplied by personal racial bias. (Pl. Mem. 15-16) The argument, however, is without merit. In Griffin v. Breckenridge, 403 U.S. 88 (1971), the Supreme Court held that "racial, or perhaps otherwise class-based, invidiously discriminatory animus" must motivate the defendants in order to give rise to Section 1985(3) liability. Id. at 102. If personal racial bias were sufficient to defeat the intraenterprise conspiracy doctrine, the exception would swallow the rule, and Girard and Herrmann would be meaningless. Accordingly, this Court holds that personal bias is not the sort of individual interest that takes a defendant out of the intraenterprise conspiracy doctrine where, as here, the action complained of arguably served a legitimate interest of Nyack Hospital. Accord, Hartman, 4 F.3d at 470; Robins v. Max Mara U.S.A., Inc., 914 F. Supp. 1006, 1010 (S.D.N.Y. 1996)." 954 F. Supp. at 722-23.
Here, the complaint alleges no personal interest other, perhaps, than personal bias on the part of Commissioner Kelly or any other alleged co-conspirator. There is no suggestion that anyone other than the City and its personnel and agencies participated in any conspiracy against plaintiff. The Section 1985(3) claim therefore must be dismissed.
7. Finally, the defendants argue that the Court should decline to exercise supplementary jurisdiction over so much of the complaint as seeks relief in the nature of that available in a New York Article 78 proceeding, citing cases such as Kelly v. City of Mount Vernon, 344 F. Supp. 395, 406 (S.D.N.Y. 2004). Plaintiff does not resist this conclusion.
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Accordingly, defendants' motion to dismiss the complaint is granted to the extent that the following are dismissed: (a) all claims for relief in respect of events that occurred prior to November 29, 2001, (b) the due process claims, (c) the 42 U.S.C. § 1985(3) claim, and (d) the claims for relief in the nature of that available under N.Y. CPLR Article 78. The dismissal of the claims for relief in the nature of that available under N.Y. CPLR Article 78 is for lack of subject matter jurisdiction and therefore is without prejudice to refiling in the New York courts. The motion is denied in all other respects, save that the denial with respect to the equal protection claim against the City is without prejudice to renewal on a motion that gives plaintiff a full opportunity to respond.
SO ORDERED.