Buckley v. State of New York et al
Filing
26
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED, that the Defendants 22 motion to dismiss the Amended Complaint is granted and the Amended Complaint is dismissed with prejudice; and it is further ORDERED, that the Clerk of the Court is directed to close this case. So Ordered by Judge Arthur D. Spatt on 8/7/2013. (Coleman, Laurie)
FILED
CLERK
8/7/2013 10:55 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT S. BUCKLEY,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
11-CV-5512 (ADS) (AKT)
-againstSTATE OF NEW YORK, STATE UNIVERSITY
OF NEW YORK AT STONY BROOK, SAMUEL
L. STANLEY, JR., MARK MURPHY, SAMANTHA
THOMAS, JAMES O’CONNOR, TERRENCE
HARRIGAN, BARBARA CHERNOW, and
LYNN M. JOHNSON,
Defendants.
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APPERANCES:
Joseph C. Stroble, Esq.
Attorney for the Plaintiff
40 Main Street
Sayville, NY 11782
New York State Attorney General, Nassau Regional Office
Attorneys for the Defendants
200 Old Country Road, Suite 240
Mineola, NY 11501
By: Assistant Attorney General Ralph Pernick
SPATT, District Judge.
On November 14, 2011, the Plaintiff Robert S. Buckley (the “Plaintiff”), a former
bus driver for the Defendant State University of New York (“SUNY”) from the
beginning of 2004 until his termination in June 2010, commenced this action against
SUNY and related parties for violations of several federal laws. In addition, the Plaintiff
brought several New York State law causes of action, including breach of contract, quasicontract, gross negligence, and intentional and negligent infliction of emotional distress.
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In its original Memorandum of Decision and Order dated September 29, 2012 (the
“Order”), the Court dismissed some of the Plaintiff’s federal discrimination and
retaliation claims, including the Plaintiff’s state law causes of action with prejudice. The
Court allowed the Plaintiff to amend his Complaint as to the causes of action that were
dismissed without prejudice.
Presently before the Court is the Defendant’s motion to dismiss the Plaintiff’s
Amended Complaint pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”)
12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim
upon which relief can be granted. For the following reasons, the Court grants the
Defendants’ motion to dismiss.
I. BACKGROUND
The Court assumes that the parties are familiar with the background of this case
and the Order dismissing the original Complaint. (Mem. of Decision and Order 1-36).
Accordingly, the Court will only repeat those facts and portions of the Order relevant to
the present motion to dismiss.
A. Facts in the Original Complaint
The Plaintiff, a 62 year old male, was employed by SUNY as a bus driver “on or
about 2004.” The individual Defendants are all employees of SUNY and according to
the original Complaint, each of them supervised the Plaintiff. Each individual Defendant
therefore had the power to make personnel decisions regarding the Plaintiff’s
employment. (Mem. of Decision and Order, at 2).
In July 2006, the Plaintiff was passed over for promotion to a “Transportation
Supervisor.” On November 29, 2006, the Plaintiff received his annual performance
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evaluation, in which he received a satisfactory performance rating from the Defendant
James O’Connor (“O’Connor”), the Director of Transportation and Parking Services at
SUNY. However, approximately a year later, on November 13, 2007, the Plaintiff
received notice that he was not selected as a full time bus driver. (Mem. of Decision and
Order, at 2).
In October 2008, the Plaintiff was appointed as Shop Steward of the Civil Service
Employees Association, Inc. (“CSEA”) Local 614. (Id). During his employment at
SUNY, the Plaintiff was a member of the CSEA union, which is covered under a contract
between the Executive Branch of the State of New York (“the State”) and the CSEA.
(Complaint, at ¶ 23). As Shop Steward, the Plaintiff was responsible for dealing with
“issues relating to the safe operation and transport of individuals both on and off the
Campus of Stony Brook University in addition to monitoring compliance with the
Agreement between CSEA and the State of New York.” Defendants’ Notice of Motion
to Dismiss, at A6. The Plaintiff also was called upon to “file grievances aimed at
safeguarding the health and safety of not only the employees who operate the busses but
the thousands of students who are daily passengers of the University’s Transit System.”
Id.
In a letter dated August 9, 2010 from the Plaintiff to CSEA President Daniel
Danohue, Long Island President Nick Lamonte, and Local 614 CSEA President Carlos
Speight, the Plaintiff lists several issues that he was called upon as Shop Steward “to
address.” Id. However, in the letter itself, the Plaintiff fails to explicitly state that he
filed any grievances on behalf of his co-workers. Id.
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The Plaintiff contends that “[the Defendant Samantha Thomas] misused
counseling memoranda to intimidate employees and silence discussion on contractual and
safety issues.” Id. at A8. To support his contention, the Plaintiff describes several
incidents that occurred between the Plaintiff’s co-workers and Thomas. Id. at A6. The
Plaintiff states that, in May 2009, Mr. Carlos Speight filed a class action grievance
alleging that the Defendant Samantha Thomas (“Thomas”) and O’Connor failed to
“provide the employees with the requisite instruction and equipment necessary to safely
use [the], ‘new soap.’” Id. at A7. The employees used this potentially toxic “new soap”
to clean the buses. Id. However, the Plaintiff admits that, shortly after the grievance was
filed, the use of the “new soap” was stopped. Id. at A8.
Furthermore, in March 2009, a grievance was filed for or by SUNY employee
Yvonne Caraftis to Thomas. Id. at A9. On a similar matter, in September 2009, a
grievance was filed for or by SUNY employee Joe Mammina to Thomas. Id. In both
instances, a counseling memorandum was issued to Yvonne Caraftis and Joe Mammina
in order to resolve and help settle the matter. Id.
The Plaintiff asserts that, prior to his appointment to Shop Steward, he never
received any disciplinary or counseling memoranda. (Mem. of Decision and Order, at 2).
The Plaintiff alleges that, after accepting the appointment, the Defendants subjected him
to ongoing harassment and retaliation with malice. (Mem. of Decision and Order, at 2).
However, on November 10, 2008, after his appointment as shop steward, the
Plaintiff received a satisfactory annual performance evaluation from Thomas. (Mem. of
Decision and Order, at 3). On November 30, 2009, the Plaintiff again received a
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satisfactory annual performance evaluation from Thomas. (Mem. of Decision and Order,
at 3).
A few months later, on February 16, 2010, James Guarino (“Guarino”), a nonparty Transportation Supervisor for SUNY, issued to the Plaintiff his first counseling
memorandum. The memorandum describes an incident in which the Plaintiff allegedly
backed his bus into a skid steer loader and cracked a taillight.
On February 23, 2010, Guarino issued a second counseling memorandum to the
Plaintiff, in connection with allegations that the Plaintiff allowed passengers to stand in
his bus. (Mem. of Decision and Order, at 3).
On April 27, 2010, the Plaintiff submitted an internal discrimination complaint to
SUNY, alleging age and gender discrimination by O’Connor and Thomas. (Mem. of
Decision and Order, at 3). In the complaint, the Plaintiff notes that he was denied a fair
grade, training, equal treatment, and a promotion because “of [his] Shop Steward duties.”
(Defendants’ Notice of Motion to Dismiss, at A26). He further states that this
discrimination manifested itself through “petty write-ups from James O’Connor to form a
paper trail.” Id.
On June 15, 2010, Guarino issued the Plaintiff’s third counseling memorandum
with regard to the Plaintiff’s alleged improper actions during a vehicle breakdown.
(Mem. of Decision and Order, at 3). In response, on June 21, 2010, in an unaddressed
memorandum, the Plaintiff stated that he did not understand why he was being
reprimanded for trying to fix the situation as best as possible. The Plaintiff repeated that
“I feel that [the counseling memoranda are] being done so that management can get a
paper trail on me to fire me because I am a CSEA union shop steward.” Defendants’
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Notice of Motion to Dismiss, at A34.
The next day, on June 22, 2010, the Plaintiff was issued a termination notice
signed by the Defendant Lynn M. Johnson (“Johnson”), Director of Human Resource
Services for SUNY, which stated that his employment would be terminated effective July
7, 2010. (Mem. of Decision and Order, at 3).
B. Procedural History as to the Original Complaint
On July 10, 2010, the Plaintiff filed a complaint with the New York State
Division of Human Rights (“NYSDHR”). On September 28, 2011, the NYSDHR issued
a Determination and Order stating that it had found no probable cause, and dismissed the
complaint.
On November 14, 2011, the Plaintiff Buckley commenced the present lawsuit
against the State of New York, SUNY, Samuel L. Stanley Jr., Mark Murphy, Samantha
Thomas, James O’Connor, Terrence Harrigan, Barbara Chernow, and Lynn M. Johnson.
The Plaintiff alleged what the Defendants characterize as a “kitchen sink” approach,
asserting twenty causes of action:
(1)–(8) Retaliation due to the Plaintiff’s speech in violation of 42 U.S.C. § 1983,
the First and Fourteenth Amendments to the United States Constitution, and
“State Civil Rights Law” against all the Defendants.
(9) Wrongful termination in breach of contract against all the Defendants
(10) The Plaintiff’s tenth cause of action is primarily a list of laws allegedly
violated by all the Defendants. The laws listed are:
(a) 42 U.S.C. § 1981;
(b) Title VII of the Civil Rights Act of 1964 (“Title VII”);
(c) Age Discrimination in Employment Act of 1967 (“ADEA”);
(d) § 115 of the Civil Rights Act of 1991;
(e) New York State Human Rights Law, New York Executive Law §§
291(1);
(f) Americans with Disabilities Act of 1990 (“ADA”);
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(g) First Amendment to the United States Constitution;
(h) Fourteenth Amendment to the United States Constitution;
(i) New York Constitution Art I §§ 8 & 11;
(j) New York State Plan for Public Employee Safety and Health
(“PESH”); (k) New York State Law Labor §§ 27(a), 215 & 740;
(l) 49 U.S.C. §§ 31005(a)(1)(A) & 31101;
(m) New York State Civil Service § 64;
(n) “Federal OSHA statutes and regulations”;
(11) Tortious interference with contract against all the Defendants;
(12) Hostile work environment and retaliation against all the Defendants;
(13) Breach of contract and quasi contract against all the Defendants;
(14) Recklessness against all the Defendants;
(15) Gross negligence against all the Defendants;
(16) Prima facie tort against all the Defendants;
(17) Age discrimination in violation of Federal law against all the Defendants;
(18) Age discrimination in violation of State law against all the Defendants;
(19) Intentional infliction of emotional distress against all the Defendants;
(20) Negligent infliction of emotional distress against all the Defendants.
On January 23, 2012, the Defendants moved to dismiss the Original Complaint
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R.
Civ. P. 12(b)(6) for failure to state a claim. (Mem. of Decision and Order, at 3-4).
C. The Court’s Original Memorandum of Decision and Order
On September 29, 2012, the Court dismissed all of the Plaintiff’s causes of action,
some with prejudice and some without prejudice, based upon the provision of Fed. R.
Civ. P. 12(b)(6) and 12(b)(1). (Mem. of Decision and Order, at 35-36).
First, the Court found that many of the Plaintiff’s causes of action were barred
due to the Eleventh Amendment and the doctrine of sovereign immunity. (Mem. of
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Decision and Order, at 6-17). As the Court stated, the Eleventh Amendment bars federal
“jurisdiction over suits against non-consenting States.” (Mem. of Decision and Order, at
6-7). The Court also noted that sovereign immunity extends to State entities such as
SUNY and State employees. (Mem. of Decision and Order, at 7).
Regarding the individual State employees, the Court noted that it was unclear
whether the Plaintiff sought monetary compensation against the individual Defendants in
their official or individual capacities. (Mem. of Decision and Order, at 7). Therefore, the
Court addressed the Complaint as seeking monetary damages against the individual
Defendants in both their official and individual capacities. (Mem. of Decision and Order,
at 8).
As to the individual Defendants’ in their official capacities, the Court found that
the causes of action were barred under the Eleventh Amendment. (Mem. of Decision and
Order, at 8). The Court found that none of the exceptions to the general of rule of
immunity applied in this case. (Mem. of Decision and Order, 9).
Specifically, the Court dismissed the Plaintiff’s 42 U.S.C. § 1983 cause of action
without prejudice due to the sovereign immunity doctrine under the Eleventh
Amendment. The Court reasoned that the Eleventh Amendment deprived the Court of
subject matter jurisdiction over §1983 claims brought against the State, SUNY, and the
individual Defendants sued in their official capacities. (Mem. of Decision and Order, at
10–11).
As for the Plaintiff’s 42 U.S.C. § 1981 claims against all of the Defendants, the
Court again found that the Eleventh Amendment barred the claims against the State,
SUNY, and the individual Defendants in their official capacities. (Mem. of Decision and
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Order, at 12).
Regarding the Plaintiff’s Age Discrimination in Employment Act of 1967
(“ADEA”) claims against all of the Defendants, the Court found that the Eleventh
Amendment also barred those claims. (Mem. of Decision and Order, at 13). In this
regard, the Court found that the ADEA did not abrogate the State’s sovereign immunity
nor had New York State consented to be sued under the ADEA. (Mem. of Decision and
Order, at 13). The Court concluded that the Plaintiff’s claims did not fall under any of
the general immunity exceptions, and therefore dismissed the Plaintiff’s ADEA claims
without prejudice against the State, SUNY, and the individual Defendants in their official
capacities. (Mem. of Decision and Order 13-14).
As for the Plaintiff’s Americans with Disabilities Act of 1990 (“ADA”) claims
against all of the Defendants, the Court found that the Eleventh Amendment barred the
those claims as well. (Mem. of Decision and Order, at 16).
Moreover, with respect to Title II of the ADA, which deals with discrimination in
public services, programs, and activities, the Court agreed with the recent trend of cases
that held that public employees may not pursue employment discrimination claims under
Title II. (Mem. of Decision and Order, at 15-16). As such, the Court dismissed the
Plaintiff’s ADA claims against the State, SUNY and the individual Defendants in their
official capacities without prejudice. (Mem. of Decision and Order, at 16).
The Court then discussed the Plaintiff’s claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), ADA, and ADEA against the individual Defendants in their
individual capacities. (Mem. of Decision and Order, at 17). The Court dismissed these
federal causes of action against the individual Defendants because these statutes do not
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provide for individual liability. (Mem. of Decision and Order, at 17). Regarding the
Plaintiff’s Title VII claim, the Court held that an individual defendant cannot be held
personally liable under Title VII. (Mem. of Decision and Order, at 17).
Concerning the Plaintiff’s ADA and ADEA claims, the Court similarly found that
an individual defendant cannot be held personally liable under either statute. (Mem. of
Decision and Order, at 18). Therefore, the Court dismissed the Title VII, ADA, and
ADEA claims against the Defendants Stanley, Murphy, Thomas, O’Conner, Harrigan,
Chernow, and Johnson with prejudice. (Mem. of Decision and Order, at 18).
As for the Plaintiff’s claims under 1991 Civil Rights Act, 49 U.S.C. § 115 and§§
31105(a)(1)(A) & 31101, under the Commercial Motor Vehicle Safety Act of 1986, and
the federal Occupational Safety and Health Administration (“OSHA”) claims, the Court
dismissed each of these claims against all of the Defendants with prejudice because they
were facially deficient. (Mem. of Decision and Order, at 18-19). The Court noted that
§ 115 of the 1991 Civil Rights Act does not provide an independent cause of action
distinct from an ADEA claim. (Mem. of Decision and Order, at 18). Furthermore, the
Court found that States, their agencies, and their employees are excluded from 49 U.S.C.
§§ 31105(a)(1)(A) & 31101 under the provisions of the Commercial Motor Vehicle
Safety Act of 1986. (Mem. of Decision and Order, at 19). The Court also stated that
OSHA claims cannot support a private right of action. (Mem. of Decision and Order, at
19). Therefore, all three of these claims were dismissed with prejudice pursuant to Fed.
R. Civ. P. 12(b)(6). (Mem. of Decision and Order, at 36).
Furthermore, as stated before, the Court dismissed the Plaintiff’s 42 U.S.C. §
1981 claims against the State, SUNY, and the individual Defendants in their official
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capacities under the Eleventh Amendment. (Mem. of Decision and Order, at 12-13). The
Court thereafter had to address the Plaintiff’s § 1981 claims in regards to the individual
Defendants in their individual capacities. (Mem. of Decision and Order, at 20). The
Court dismissed the § 1981 claims against the individual Defendants in their individual
capacities because the Complaint failed to allege any factual allegations to support
intentional racial discrimination. (Mem. of Decision and Order, at 20). Therefore, the
court dismissed the Plaintiff’s § 1981 claim without prejudice under Fed. R. Civ. P.
12(b)(6). (Mem. of Decision and Order, at 20, 35-36).
Concerning the Plaintiff’s 42 U.S.C. § 1983 claims, as noted above, the Court
dismissed those claims against the State, SUNY, and the individual Defendants in their
official capacities without prejudice. (Mem. of Decision and Order, at 11). Pertaining to
the Plaintiff’s § 1983 claims against the individual Defendants in their individual
capacities, the Court also dismissed the Plaintiff’s claims without prejudice. (Mem. of
Decision and Order, at 21-28). The central issue for the Court was whether the Plaintiff
adequately plead that the individual Defendants in their individual capacities acted in
such a way that their conduct deprived the Plaintiff of a right guaranteed under the
Constitution of the United States. (Mem. of Decision and Order, at 21-22). Because the
Plaintiff brought the § 1983 claims based on allegations of retaliation for speech
protected by the First Amendment, the Court addressed the three-part test for such a
cause of action. (Mem. of Decision and Order, at 22).
As explained by the Court, a plaintiff pleads the three-part test for a prima facie
First Amendment retaliation case when he can show that 1) he engaged in
constitutionally protected speech because he spoke as a citizen on a matter of public
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concern; (2) he suffered an adverse employment action; and (3) the speech at issue was a
substantial or motivating factor in the decision. (Mem. of Decision and Order, at 22).
The Court determined that the Plaintiff adequately plead the speech prong of the three–
part test. (Mem. of Decision and Order, at 23). However, the Court concluded that the
Plaintiff failed to show a causal connection between his protected speech as a Shop
Steward and any adverse employment action. (Mem. of Decision and Order, at 23-27).
In the Court’s view, the time between the Plaintiff’s appointment to Shop Steward
in October 2008 and his first counseling memorandum in 2010 was too large a gap to
establish a retaliatory motive. (Mem. of Decision and Order, at 25). The Court therefore
found that the Plaintiff could only rely upon temporal proximity and concluded that
temporal proximity alone was not enough to survive a motion to dismiss. (Mem. of
Decision and Order, at 24). Accordingly, the Court dismissed the Plaintiff’s § 1983
claims against the Defendants in their individual capacities without prejudice. (Mem. of
Decision and Order, at 26).
The Court also found that the Complaint, “[o]ther than identifying the various
positions held by the seven individual defendants,” failed to allege facts in the Complaint
as to what each one of them purportedly did. (Mem. of Decision and Order, at 27).
However, the Court concluded that the Plaintiff met this minimum burden with regard to
Thomas, O’Connor, and Johnson. (Mem. of Decision and Order, at 27). In particular,
the Court found that Johnson signed the letter that informed the Plaintiff that he was
going to be terminated; and O’Connor and Thomas were both the Plaintiff’s supervisor
who were directly involved with the Plaintiff’s work assignments and his subsequent
evaluations and counseling memorandums. (Mem. of Decision and Order, at 27-28).
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With respect to the Title VII claims against New York State and SUNY, the
Plaintiff alleged unlawful discrimination, harassment, and retaliation based on his age,
disability, race, and gender. The Court first noted that neither age nor disability is a
protected class under Title VII. (Mem. of Decision and Order, 28). As to the Plaintiff’s
race and gender claims, the Court found that his pleadings were conclusory statements of
discriminatory actions rather than specific facts. (Mem. of Decision and Order, at 29).
The Court concluded that there were no specific examples alleged of (1) either
discriminatory animus on the part of the Defendants toward the Plaintiff nor (2) members
not in his alleged protected class receiving more favorable treatment than he did. (Mem.
of Decision and Order, at 29). Accordingly, the Court dismissed the Plaintiff’s Title VII
claims against New York and SUNY under Fed. R. Civ. P. 12(b)(6) without prejudice.
(Mem. of Decision and Order, at 30).
The Court also dismissed the Plaintiff’s hostile work environment action pursuant
to Fed. R. Civ. P. 12(b)(6) without prejudice. (Mem. of Decision and Order, at 35). The
Court found that the Plaintiff failed to allege facts that would plausibly show that he
suffered in a hostile work environment. (Mem. of Decision and Order, at 35). The Court
directed the Plaintiff to allege more specific facts to support his hostile work environment
claim in his Amended Complaint. (Mem. of Decision and Order, at 35).
Finally, as to the state law claims against all of the Defendants, the Court
dismissed them with prejudice. (Mem. of Decision and Order, at 30). The Court noted
that a plaintiff may not file a claim with the NYSDHR, and bring a subsequent judicial
action based on the same incident under § 297(9) of the New York Executive Law.
(Mem. of Decision and Order, at 30). The Court determined that it lacked subject matter
13
jurisdiction in regards to the Plaintiff’s state law claims because the Plaintiff brought
claims based on the same incident which the NYSDHR previously dismissed. (Mem. of
Decision and Order, at 32).
In sum, the Court allowed the Plaintiff to file an Amended Complaint with more
detailed factual allegations to support his § 1983 and § 1981 allegations against the
individual Defendants in their individual capacities, and Title VII, ADEA, and ADA
against all of the Defendants. (Mem. of Decision and Order, at 35).
C. Facts in the Amended Complaint
The Plaintiff’s Amended Complaint is virtually identical to the Plaintiff’s original
Complaint except for three substantive changes.
First, the Plaintiff omitted all causes of action that were dismissed with prejudice
by the Court’s original Order. (Amended Complaint, at 4a.)
Second, the Plaintiff elaborates on the chain of command of the individual
Defendants and pleads specific allegations on a defendant-by-defendant basis. (Id. at 7a7i.) In relation to Defendant Thomas, the Plaintiff explains his actions as Shop Steward
including the complaints he made and objections he raised to Defendant Thomas in
several different meetings in 2009 and 2010. (Id. at 7b.) The Plaintiff alleges that after
he voiced his objections as Shop Steward, the individual Defendants acted in concert with
each other and with malice to retaliate against him and wrongfully terminate him.
In this regard, the Plaintiff alleges that:
(1) O’Connor wrote false write-ups to create a paper trail for wrongful
termination; (2) Johnson willfully and maliciously denied his applications for several
positions; (3) Harrigan was present for the August 21, 2009 meeting with Defendant
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Thomas, where the Plaintiff complained about seniority determination and was thereafter
subjected to ongoing harassment; (4) Stanley ignored his request for a review of his
wrongful termination; (5) Chernow ignored his request to investigate his wrongful
termination and refused to investigate the false write-ups; and (6) Murphy denied him
overtime, created a false paper trail to support his wrongful termination, and retaliated
against him for his protected activities resulting in a wrongful termination and retaliation.
(Id. at 7c-7i.)
Third, the Plaintiff adds a new exhibit “A1”, which describes certain incidents
that occurred with the individual Defendants. (Id. at A1-13.) In exhibit A1, the Plaintiff
states that Defendant Thomas treated him differently than the other bus drivers. The
Plaintiff alleges that Thomas told the Plaintiff not to park near a pole, while other bus
drivers thereafter parked near the pole without reprimand. Furthermore, the Plaintiff
alleges that Thomas “verbally counseled” the Plaintiff for leaving keys in a bus, but at the
same time other bus drivers took keys home and Defendant Thomas did not “verbally
counsel” those bus drivers. (Id. at A1-5) The Plaintiff also claimed that Defendant
Thomas favored other employees. The Plaintiff states that these incidents were
retaliatory actions with regard to his union membership and appointment to Shop
Steward. Id. at A1.
II. LEGAL STANDARDS
A. As to a Motion to Dismiss for Lack of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The standard for
15
reviewing a 12(b)(1) motion to dismiss is essentially identical to the 12(b)(6) standard,
except that “[a] plaintiff asserting subject matter jurisdiction has the burden of proving by
a preponderance of the evidence that it exists.” Id. at 113.
B. Legal Standard on a Motion to Dismiss for Failure to State a Claim
Under the now well-established Twombly standard, a complaint should be
dismissed only if it does not contain enough allegations of fact to state a claim for relief
that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929, 570 (2007). The Second Circuit has explained that, after Twombly,
the Court’s inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 572
F.3d 66 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009)).
“First, although ‘a court must accept as true all of the allegations contained in a
complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.’” Id. at 72 (quoting Iqbal, 129 S. Ct. at 1949). “‘Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss’ and ‘[d]etermining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950). Thus, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and . . . determine whether they
plausibly give rise to an entitlement of relief.” Iqbal, 129 S. Ct. at 1950.
In considering a motion to dismiss, this Court accepts as true the factual
allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff’s
16
favor. Zinermon v.Burch, 494 U.S. 113, 118, 110 S. Ct. 975, 979, 108 L. Ed. 2d 100
(1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007). Only if this
Court is satisfied that “the complaint cannot state any set of facts that would entitle the
plaintiff to relief” will it grant dismissal pursuant to Rule 12(b)(6). Hertz Corp. v. City of
N.Y., 1 F.3d 121, 125 (2d Cir. 1993). The issue on a motion to dismiss is “not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
III. DISCUSSION
A. As to the Plaintiff’s 42 U.S.C. § 1981 Claims
As the Court has previously observed, the Plaintiff’s § 1981 claims against New
York State, SUNY, and the individual Defendants in their official capacities are barred
by the 11th Amendment. The Eleventh Amendment bars federal jurisdiction over suits
against non-consenting States. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S. Ct.
631, 640, 145 L. Ed. 2d 522 (2000) (citing College Sav. Bank v. Fla. Prepaid
Postsecondary Ed. Expense Bd., 527 U.S. 666, 669–70, 119 S. Ct. 2219, 144 L. Ed. 2d
605 (1999)); see also Wang v. Office of Professional Medical Conduct, N.Y., 354 Fed.
Appx. 459, 460 (2d Cir. 2009) (“The district court correctly determined that Wang’s §
1981 claim was precluded by Eleventh Amendment immunity.”).
As for the Plaintiff’s § 1981 claims against the individual Defendants in their
individual capacities, the “plaintiff must demonstrate some affirmative link to causally
connect the actor with the discriminatory action.” Patterson v. County of Oneida, N.Y.,
375 F. 3d 206, 229 (2d. Cir. 2004) (quoting Whidbee v. Garzarelli Food Specialties, Inc.,
17
233 F. 3d 62, 75 (2d. Cir. 2000)). 42 U.S.C. § 1981 deals with racial discrimination,
protecting all persons within jurisdiction of the United States the same right to make and
enforce contracts with respect to contractual relationships such as employment. 42
U.S.C. § 1981.
Here, the Court finds that the Plaintiff has not adequately plead enough specific
facts that affirmatively link the actions of the individual Defendants with any racial
discriminatory action. See also Hailey v. Conn., No. 03-CV-1787, 2011 WL 6209748, at
*4 (S.D.N.Y. Dec. 14, 2011) (“Plaintiff's complaint includes no allegations of
discriminatory animus as required to sustain a claim under 42 U.S.C. § 1981”); Patterson,
375 F. 3d at 221 (“the plaintiff has failed to show that there is evidence that would permit
a rational factfinder to infer that the employer's proffered rationale is pretext”).
In both the Amended Complaint and the accompanying exhibits, the Plaintiff fails
to even identify his race. Further, the Plaintiff fails to address any specific example of
where an individual Defendant discriminated against the Plaintiff based on race.
Therefore, the Plaintiff’s § 1981 claims against the individual Defendants in their
individual capacities are dismissed for a failure to “state a claim to relief that is plausible
on its face.” Aschcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009); see
also Patterson, 375 F. 3d at 229 (“[P]ersonal liability under section 1981 must be
predicated on the actor’s personal involvement.”); Patterson, 375 F. 3d at 226 (“plaintiff
pursuing a claimed violation of § 1981 . . . must show that the discrimination was
intentional.”).
Moreover, even if the Defendant properly plead specific facts to show racial
discrimination, the courts have determined that § 1983 “constitutes the exclusive federal
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remedy for violation of the rights guaranteed in § 1981 by state governmental units.”
Patterson, 375 F. 3d at 225 (quoting Jett v. Dallas Independent School Dist., 491 U.S.
701, 733, 109 S. Ct. 2702, 105 L. Ed. 2d. 598 (1989). This principle has been extended
to state employees sued in their individual capacities such as the individual Defendants in
this case. See also Rehman v. State University of New York at Stony Brook, 596 F. Supp.
2d 643, 654 (E.D.N.Y. 2009) (Spatt, J.) (“Courts have interpreted this prohibition
[against bringing an independent § 1981 claim with a separate § 1983 claim] to extend to
actions against individual defendants in their individual capacities.”).
B. As to the Plaintiff’s Title VII’s claims
As previously stated, the Court dismissed the Title VII claims against the
individual Defendants because Title VII does not support individual liability. Schiano v.
Quality Payroll Sys., 445 F.3d 597, 608, fn. 8 (2d Cir. 2006); Tomka v. Seiler Corp., 66
F.3d 1295, 1313– 14 (2d Cir. 1995), abrogated on other grounds by Burlington Indus. v.
Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (“individual defendants
with supervisory control over a plaintiff may not be held personally liable under Title
VII.”).
However, the Court must address the Plaintiff’s Title VII claims against New
York State and SUNY. Title VII prohibits employers from “discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1). In order to establish a prima facie Title VII claim, the
Plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified
for her position and satisfactorily performed [his] duties; (3) [he] suffered an adverse
19
employment action; and (4) the circumstances surrounding that action giving rise to an
inference of discrimination. Sank v. City University of New York, No. 10 Civ. 4975,
2011 WL 5120668, at *8 (S.D.N.Y. Oct. 28, 2011) ((citing Williams v. R.H. Donnelly,
368 F.3d 123, 126 (2d Cir. 2004).
At issue in this case is whether the Plaintiff has pleaded enough specific facts to
meet this fourth prong. To satisfy the requirements of the fourth prong, the plaintiff must
allege facts “sufficient to plausibly suggest [a defendant’s] discriminatory state of mind”
and “conclusory allegations are not entitled to the presumption of truth.” Id. at *9 (citing
Iqbal, 129 S. Ct. at 1949–52). In the Court’s view, the Plaintiff has failed to allege
enough specific facts to plausibly suggest that New York State or SUNY maintained a
discriminatory state of mind. In the accompanying exhibits, the Plaintiff highlighted
certain situations where his supervisors treated other employees differently. The Plaintiff
states that Thomas allowed others to park their vehicles near a pole, but reprimanded the
Plaintiff for doing so. However, one of the other bus drivers was a male and therefore the
alleged different treatment could not reasonably have been motivated by gender. The
Plaintiff also noted that Thomas favored certain female employees with respect to the
employee’s time charges, but failed to mention how their treatment differed from his own
treatment. See Texas Dep. Of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.
Ct. 1089 (1981) (("the statute [Title VII] was not intended to 'diminish traditional
management prerogatives'"), quoting Steelworkers v Weber, 443 U.S. 193, 207 99 S. Ct.
2721, 2729, 61 L. Ed. 2d 480 (1979)).
Furthermore, the Plaintiff failed to plead specific comments made to or about him
by any of the individual Defendants. See also Sank, 2011 WL 5120668 at *9 (dismissing
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Title VII claim where no “decision-maker at City College made comments to or about
[the Plaintiff] from which discriminatory animus based on gender could reasonably be
inferred”); Watts v. Servs. for the Underserved, 2007 U.S. Dist. LEXIS 41209, at *8,
2007 WL 1651852 (E.D.N.Y. 2007) (noting that a plaintiff must allege “a modicum of
facts regarding the adverse action and the disparate treatment involved.”). Therefore, the
Court grants the motion to dismiss the Plaintiff’s Title VII claims against New York State
and SUNY due to the Plaintiff’s inability to allege sufficient “facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
C. As to the Plaintiff’s ADA and ADEA Claims
The Court previously found that sovereign immunity and the Eleventh
Amendment bar the Plaintiff’s ADA and ADEA claims against New York State, SUNY,
and the individual Defendants in their official capacities. Specifically, courts have held
that ADA and ADEA claims for monetary damages are barred against a State and State
entities. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360, 121
S. Ct. 955; Kimel, 528 U.S. at 91. In this case, the Plaintiff only seeks monetary damages
against the Defendants.
As for the Plaintiff’s ADA and ADEA claims against the individual Defendant’s
in their individual capacities, the Court finds that the ADA and ADEA statutes do not
support individual liability. See e.g., Darcy v. Lippman, 356 Fed. App’x. 434, 437 (2d
Cir. 2009) (“Darcy may not sue these defendants in their personal capacities, because the
ADA and ADEA, like Title VII, do not provide for actions against individual
supervisors.”). Therefore, the Court grants the motion to dismiss the Plaintiff’s ADA and
ADEA claims against all of the Defendants pursuant to Fed. R. Civ. P. 12(b)(6) for
21
failure to state a claim upon which relief can be granted.
D. As to the Plaintiff’s 42 U.S.C. § 1983 Claims
As stated previously, the Court finds that the 11th Amendment bars the § 1983
claims against the State, SUNY, and the individual Defendants in their official capacities.
Mamot v. Bd. Of Regents, 367 Fed. App’x. 191, 192 (2d Cir. 2010) (“The Eleventh
Amendment bars such a federal court action against a state or its agencies absent a waiver
of immunity or congressional legislation specifically overriding immunity”); Brewer v.
Brewer, 34 Fed. App’x. 28, 29-30 (2d Cir. 2002) (“First Amendment claims against the
State of New York pursuant to § 1983 are barred by the Eleventh Amendment since New
York State has not consented to be sued.”). However, the Court must still address
whether, in the Amended Complaint, the Plaintiff adequately states a § 1983 claim
against the individual Defendants in their individual capacities.
To prove a § 1983 claim, a plaintiff must show 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). Here, both parties
agree that the individual Defendants were acting under color of state law. However, the
issue is whether the Defendants’ conduct deprived the Plaintiff of the rights guaranteed to
him under the First Amendment.
In order for a public employee to bring a § 1983 claim based on allegations of
retaliation for speech protected by the First Amendment, the Plaintiff must meet the
three-part test articulated in Johnson v. Ganim, 342 F. 3d 105 (2d Cir. 2003). See Martir
v. City of New York, No. 07-CV-7922, 2009 WL 2191332, at *5 (S.D.N.Y. July 23,
22
2009). The three-part test requires the Plaintiff to show that (1) he engaged in
constitutionally protected speech because he spoke as a citizen on a matter of public
concern; (2) he suffered an adverse employment action; and (3) the speech at issue was a
substantial and motivating factor in the decision. Johnson, 342 F. 3d at 112.
The Supreme Court has stated that “whether an employee’s speech addresses a
matter of public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48,
103 S. Ct. 1684 (1983). This determination is a question of law for the Court to make.
Id. In making that determination, the factfinder “should focus on the motive of the
speaker and attempt to determine whether the speech was calculated to redress personal
grievances or whether it had broader public purpose.” Lewis v. Cowen, 165 F. 3d 154,
163-64 (2d Cir. 1999) (citing Curtis v. Oklahoma City Pub. Sch. Bd. of Educ., 147 F. 3d
1200, 1212 (10th Cir. 1998)). However, the speakers’ motive is not totally dispositive.
Cioffi v. Averill Park Central School District Board of Education, 444 F. 3d 158, 165-66
(2d Cir. 2006). In other words, “it does not follow that a person motivated by personal
grievance cannot be speaking on a matter of public concern.” Sousa, 578 F. 3d at 174.
Therefore, even though the Plaintiff’s motives were personal, the Court finds that
the Plaintiff’s speech as a public employee was made as a citizen on a matter of public
concern. The Court concludes that the Plaintiff’s speech in his role as Shop Steward was
made “pursuant to [his] official duties.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.
Ct. 1951 (2006). Also, the Court finds that the Plaintiff’s union membership satisfies the
public concern requirement. See also Donovan v. Inc. Village of Malverne, 547 F. Supp.
210, 218 (E.D.N.Y. 2008) (“several courts have determined that union membership in
23
and of itself satisfies the public concern requirement.”). Moreover, the Second Circuit
has held that “[t]here is no doubt that retaliation against public employees solely for their
union activities violates the First Amendment.” Clue v. Johnson, 179 F. 3d 57, 60 (2d
Cir. 1999). Accordingly, the Court finds that the Plaintiff has adequately plead the first
prong of the Johnson v. Ganim three part test. 342 F.3d at 112.
Nonetheless, even though the Plaintiff participated in protected speech, the Court
finds that he cannot show a causal connection between his conduct and any alleged
adverse employment action. For the Plaintiff to show that his speech was a substantial or
motivating factor in the decision to terminate him, he must show a causal connection
between the speech and the adverse employment action. Morris v. Lindau, 196 F. 3d
102, 110 (2d Cir. 1999). Such a causal connection can be established either by direct
evidence, circumstantial evidence, or by showing a temporal proximity of the protected
speech and the adverse employment action. See Raniola v. Police Commissioner
William Bratton, 243 F. 3d 610, 626 (2d Cir. 2001); Morris, 196 F. 3d at 110; Donovan,
547 F. Supp. 2d at 218 (citing Woods v. Enlarged City Sch. Dist., 473 F. Supp. 2d 498
(S.D.N.Y. 2007).
In this regard, the Court finds that the Plaintiff relies only upon temporal
proximity to support his allegations of First Amendment retaliation. In particular, the
Plaintiff pleads that he was appointed as Shop Steward in October 2008 and received his
first counseling memorandum on February 16, 2010. “[A] plaintiff can indirectly
establish a causal connection to support a discrimination or retaliation claim by ‘showing
that the protected activity was closely followed in time by the adverse [employment]
action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F. 3d
24
545, 554 (2d Cir. 2001) (quoting Reed v. A.W. Lawrence & Co., 95 F. 3d 1170, 1178 (2d
Cir. 1996)).
However, as decided in the Order, the gap between the appointment and the
counseling memorandum is too large to establish a retaliatory motive by the individual
Defendants. See also Espinal v. Goord, 558 F. 3d 119, 129 (2d Cir. 2009) (“allow [the]
Court to exercise its judgment about the permissible inferences that can be drawn from
temporal proximity in the context of particular cases.”); cf. Richardson v. N.Y. State
Dep’t of Corr. Serv., 180 F. 3d 426, 446-47 (2d Cir. 1999) (acts within one month of
receipt of deposition notices may be retaliation for initiation of lawsuit more than one
year earlier); Grant v. Bethlehem Steel Corp., 622 F. 2d 44, 45-46 (2d Cir. 1980) (an
eight month gap between EEOC complaint and retaliatory act suggested causal
relationship).
Furthermore, courts have held that “if the alleged retaliatory behavior pre-existed
the protected activity, the plaintiff must provide some evidence of ratcheting up or
increased harassment to succeed.” Boumehdi v. Plastag Holdings, LLC, 489 F. 3d 781,
793 (7th Cir. 2007).
In this case, the Plaintiff was already passed over for promotions before his
appointment to Shop Steward. See also Hall v. Parker Hannifan Corp., 824 F. Supp. 2d
464, 470 (W.D.N.Y. 2009) (“if the discrimination was just as bad before the employee
complained as it was afterwards, then the employee’s complaints cannot be said to have
led to that discriminatory behavior.”). Further, the Court finds that the Plaintiff failed to
plead a “ratcheting up” or “increased harassment” beyond mere vague conclusory
allegations.
25
The Plaintiff points to the counseling memoranda he received on February 16,
2010, February 23, 2010, and June 15, 2010 and to his termination in July 2010 as
evidence of “increased harassment.” However, such temporal proximity alone is
insufficient to show a connection between the Plaintiff’s protected speech and his alleged
adverse employment action. The Plaintiff fails to use the opportunity to plead more
specific allegations of the individual Defendants retaliating against him for his role as a
Shop Steward. In fact, the Plaintiff received satisfactory evaluations on November 10,
2008 and November 30, 2009, which occurred after his appointment to Shop Steward.
Similar to the Plaintiff’s Original Complaint, the Plaintiff includes only vague conclusory
allegations of harassment, retaliation, and discrimination. Therefore, the Court dismisses
the Plaintiff’s § 1983 causes of action against the individual Defendants in their
individual capacities because the Plaintiff failed to show a causal connection between his
protected speech and any adverse employment action.
As for the Plaintiff’s hostile work environment claim, it is unclear whether the
Plaintiff is using Title VII or § 1983 as his statutory vehicle. Nevertheless, the same
analysis is used for either statute. See Smith v. Town of Hempstead Dept. of Sanitation
Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) (“The standard for showing a
hostile work environment under Title VII, Section 1981, Section 1983 and the New York
State Human Rights Law is essentially the same.”).
First, as a threshold matter, the Plaintiff must show that he is a member of a
protected class and that he “was subjected to the hostility because of [his] membership in
[that] protected class.” Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 318 (2d
Cir.1999). Once this threshold is met, the Plaintiff “must plead facts that would tend to
26
show the complained of conduct: (1) is objectively severe or pervasive – that is, creates
an environment that a reasonable person would find hostile or abusive; (2) creates an
environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates
such an environment because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113
(2d Cir. 2007) (internal quotation marks and punctuation omitted), citing Gregory v.
Daly, 243 F.3d 687, 691–92 (2d Cir. 2001).
In general, to prevail on a hostile work environment claim, a plaintiff must show
that “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.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal
quotations omitted). In determining whether a work environment is hostile, the Court
assesses the totality of the circumstances, including: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 119 (2d Cir.
2010) (internal quotation marks omitted); accord Petrosino v. Bell Atl., 385 F.3d 210,
221 (2d Cir. 2004). Specifically, for a 12(b)(6) motion, a “plaintiff need only plead facts
sufficient to support the conclusion that she was faced with ‘harassment . . . of such
quality or quantity that a reasonable employee would find the conditions of her
employment altered for the worse.’” Pantane v. Clark, 508 F. 3d 106, 113 (2d Cir. 2007).
Applying those principles here, the Court finds that the Plaintiff has failed to meet
his 12(b)(6) burden in regards to a hostile work environment action. There is no specific
allegation made or example proffered of a hostile work environment action by any of the
27
individual Defendants. Rather, the Plaintiff only pleads vague conclusory allegations as
to the individual Defendants’ contribution to the workplace atmosphere. Therefore,
based on the totality of the circumstances, the Court concludes that the Amended
Complaint is not sufficient to allege that the Plaintiff faced harassment of such a high
quality or quantity that he could plausibly state a claim of a hostile work environment
under § 1983 or Title VII.
Accordingly, the Court need not need to address whether the underlying events
referenced by the Plaintiff are time-barred by New York State’s three-year statute of
limitations in regards to either the Plaintiff’s Title VII or § 1983 claims. Owens v.
Okure, 488 U.S. 235, 251, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594 (1989).
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED, that the Defendants’ motion to dismiss the Amended Complaint is
granted and the Amended Complaint is dismissed with prejudice; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
August 7, 2013
___ Arthur D. Spatt ___________
ARTHUR D. SPATT
United States District Judge
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