Falcon v. City University of New York et al
Filing
29
MEMORANDUM OF DECISION AND ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction; denying 19 Motion to Amend/Correct/Supplement; For the foregoing reasons, the City Defendants partial motion to dismiss is granted as unopposed; Queens Colle ge is hereby dismissed from this action; the Plaintiffs ADEA and Section 1983 claims are dismissed in their entirety; and the Plaintiffs cross motion for leave to file a second amended complaint is denied. For the purpose of clarity, the Court notes that the only remaining viable claims in this action are the Plaintiffs Title VII claims against CUNY for gender discrimination, hostile work environment, and retaliation. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 7/15/2016. c/ecf. (Coleman, Laurie)
FILED
CLERK
7/15/2016 3:47 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
NANCY FALCON,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
15-cv-3421 (ADS)(ARL)
-againstCITY UNIVERSITY OF NEW YORK and
QUEENS COLLEGE AT THE CITY
UNIVERSITY OF NEW YORK,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Tand & Associates
Attorneys for the Plaintiff
990 Stewart Avenue, Suite 130
Garden City, NY 11530
By: Jonathan A Tand, Esq., Of Counsel
New York State Attorney General
Attorneys for the Defendants
200 Old County Road, Suite 240
Mineola, NY 11501
By: Ralph Pernick, Assistant Attorney General
SPATT, District Judge.
This case arises from allegations by the Plaintiff Nancy Falcon (the “Plaintiff”) that her
current employers the Defendants City University of New York (“CUNY”) and Queens College
at CUNY (“Queens College” and collectively, the “City Defendants”) discriminated against her
on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”), and on the basis of her age in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C.A. § 621 et seq. (“ADEA”), by failing to promote her from
an Assistant District of Public Safety position to a Director of Security position and later
demoting her to an allegedly subordinate position. In addition, she asserts that the City
Defendants retaliated against her in violation of Title VII and ADEA for objecting to their
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alleged discrimination. Finally, she asserts a claim under 42 U.S.C. § 1983 (“Section 1983”)
against the City Defendants for their alleged violation of her rights secured under the Equal
Protection Clause of the Fourteenth Amendment.
Presently before the Court is a partial motion pursuant to Federal Rules of Civil
Procedure (“Rules”) 12(b)(1) and 12(b)(6) to dismiss the Plaintiff’s claims against the City
Defendants under the ADEA and Section 1983 on sovereign immunity grounds, as well as all
claims against the Defendant Queens College. Also before the Court is a cross-motion by the
Plaintiff pursuant to Rule 15(a)(2) for leave to amend her complaint a second time to add three
individual Defendants Felix Matos Rodriguez (“Rodriguez”), Pedro Pineiro (“Pineiro”), and
Rufus Massiah (“Massiah”).
For the reasons set forth below, the City Defendants’ partial motion to dismiss is granted
and the Plaintiff’s cross-motion for leave to amend is denied.
I. BACKGROUND
A. As to the Allegations
The following facts are drawn from the first amended complaint (“FAC”) unless
otherwise stated.
The Plaintiff is a female, approximately sixty-three years old, and a resident of Queens
County.
CUNY is the public university system of New York City. Queens College is a senior
college within CUNY’s network.
In 1984, CUNY hired the Plaintiff as an Assistant Director of Public Safety/Security at
Queens College. The FAC does not specify the Plaintiff’s duties or job responsibilities.
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According to the FAC, the Department of Public Safety at Queens College was
historically “male dominated.” To that end, the FAC alleges “upon information and belief” that
CUNY has never employed a female as the Director of Public Safety/Security.
Over the course of her tenure at Queens College, the Plaintiff earned several awards and
commendations for her service and was by all accounts, a hard-working, dependable, and loyal
employee. At an unspecified point in her tenure, the Plaintiff served as an Acting Director of
Public Safety/Security. However, she was never promoted to the Director position.
In that regard, in 2000, 2002, 2004, 2005, and 2007, the Plaintiff applied for the Director
of Security position. However, the City Defendants decided not to promote her and instead
promoted Pineiro, a male candidate, who allegedly was less qualified and younger than the
Plaintiff. At unspecified times, the Plaintiff complained to the City Defendants regarding their
failure to promote her in favor of a younger male candidate. Apparently, the City Defendants
summarily dismissed the Plaintiff’s complaints.
In 2007, the City Defendants changed the Plaintiff’s title from Assistant Director of
Public Safety/Security to Assistant Director for Investigations. As a result of this change in title,
the Plaintiff was allegedly stripped of all supervising authority and lost many of her prior job
responsibilities. The complaint does not specify what her prior job responsibilities were, nor
which job responsibilities she allegedly lost as a result of her demotion.
The City Defendants hired Rufus Massiah, a male employee, as the Assistant
Director/Lieutenant Operations Coordinator. Although he apparently had a different title than
the Plaintiff, the FAC alleges that Massiah effectively replaced the Plaintiff in her former role as
Assistant Director of Public Safety/Security.
3
The FAC alleges “upon information and belief” that Massiah was younger than the
Plaintiff. In addition, prior to replacing the Plaintiff, Massiah was the Plaintiff’s subordinate;
had no experience as an Assistant Director; and was allegedly “far less qualified for the position
than [the] Plaintiff.”
In his new position, Massiah had supervising authority over employees that the Plaintiff
had supervised prior to her alleged demotion. After his promotion, Massiah often questioned the
Plaintiff’s authority and judgment on security procedures. The FAC further alleges “upon
information and belief” that on one occasion, Massiah called the Plaintiff incompetent in front of
the Plaintiff’s co-workers and other members of the CUNY community.
On October 31, 2008, the Plaintiff filed a charge of discrimination with the Equal
Opportunity Commission (“EEOC”) and the New York State Division of Human Rights
(“DHR”) alleging age discrimination under the ADEA and sex discrimination under Title VII.
(See the Defs.’ Reply Mem. of Law, Dkt. No. 25–2, Ex. 2; see also FAC, Ex. A.)
Subsequently, the City Defendants allegedly attempted to marginalize the Plaintiff within
the Queens College Department of Public Safety by undertaking the following actions: Massiah
required CUNY’s security staff to obtain his permission prior to transporting the Plaintiff to the
scene of a security incident; the City Defendants routinely asked the Plaintiff to serve off-campus
subpoenas, which took time away from the Plaintiff’s other job responsibilities; in 2008, Pineiro
denied the Plaintiff’s request to work on a security detail at a concert performed by the band
Good Charlotte on the Queens College campus; and on October 9 and 21, 2014, the City
Defendants failed to immediately notify the Plaintiff that a potential predator was present on the
Queens College campus.
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In June 2012, the City Defendants promoted Massiah for a second time from Assistant
Director/Lieutenant Operations Coordinator to Deputy Director of Public Safety. Allegedly, the
City Defendants did not post an opening for the position, and therefore, the Plaintiff was not able
to apply for the position.
On September 9, 2012, the Plaintiff filed a second charge with the EEOC and DHR to
add a claim of retaliation.
With regard to the first EEOC charge, on January 31, 2012, the EEOC made a
determination that there was reasonable cause to believe that the City Defendants discriminated
against the Plaintiff on the basis of her gender and her age, and as a result, sought to engage the
parties in conciliation talks to settle the matter.
On December 4, 2014, the Plaintiff submitted an internal charge of discrimination form
to the City Defendants’ Office of Affirmative Action alleging that the City Defendants had
discriminated against her on the basis of her gender and her age, and had also retaliated against
her for filing a charge of discrimination with the EEOC and DHR.
Also in early December 2014, the City Defendants allegedly removed the Plaintiff from
her office and transferred the majority of her responsibilities to an unidentified male co-worker.
However, the Plaintiff apparently kept her title as Assistant Director for Investigations.
B. As to the Procedural History
On March 17, 2015, the U.S. Department of Justice notified the Plaintiff that conciliation
efforts had failed and issued to the Plaintiff a right to institute a civil action based on her first
charge for gender and age discrimination.
On June 8, 2015, the EEOC issued a second notice of a right to sue based on the
Plaintiff’s second charge for gender discrimination, age discrimination, and retaliation.
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On June 12, 2015, the Plaintiff commenced this action against the City Defendants. She
alleged the following claims against the City Defendants: claims under Title VII for hostile work
environment, gender discrimination, and retaliation; claims under the ADEA for age
discrimination, hostile work environment, and retaliation; and a claim for age and gender
discrimination under Section 1983 for the violation of the Plaintiff’s rights under the Equal
Protection Clause of the Fourteenth Amendment. She further demanded “compensatory,
emotional, psychological, and punitive damages, lost compensation, front pay, back pay,
liquidated damage [sic], injunctive relief, and any other damages permitted by law pursuant to
the above reference causes of action.”
On November 13, 2015, pursuant to Rule 12(b)(1), the City Defendants filed a partial
motion to dismiss the Plaintiff’s claims under the ADEA and Section 1983 on sovereign
immunity grounds. (See the Defs.’ Mem. of Law, Dkt. No. 12–1, at 1–6.) In addition, the City
Defendants moved under Rule 12(b)(6) to dismiss all of the Plaintiff’s claims against Queens
College because they contended that Queens College is not a legally cognizable entity distinct
from CUNY. (Id. at 6–7.) Of importance, the City Defendants did not move to dismiss the
Plaintiff’s Title VII claims against CUNY.
On December 4, 2015, in response to the City Defendants’ motion, the Plaintiff filed the
FAC as a matter of course under Rule 15(a)(1)(B). The allegations in the FAC are identical to
the allegations in the original complaint. The only difference between the two pleadings is that
unlike the original complaint, the FAC attaches an additional exhibit — namely, the June 8, 2015
letter from the EEOC to the Plaintiff notifying her of her right to sue based on her second EEOC
charge of discrimination and retaliation.
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On December 21, 2015, the Plaintiff filed a cross-motion for leave to amend the
complaint for a second time under Rule 15(a)(1)(C). The proposed second amended complaint
(“SAC”) purports to add as named Defendants Rodriguez, Pineiro, and Massiah (collectively, the
“Individual Defendants”). (See Proposed SAC, Dkt. No. 20.) Other than adding the names and
titles of the Individual Defendants, the proposed SAC is almost identical to the FAC and the
original complaint.
On February 16, 2016, the City Defendants filed a memorandum in further support of
their motion to dismiss and in opposition to the Plaintiff’s motion for leave to file the SAC. The
City Defendants argued that the proposed claims against the Individual Defendants were futile.
In addition, they argued for the first-time that the Court should dismiss the entire action because
the Plaintiff failed to state causes of action for discrimination, retaliation, and hostile work
environment under the ADEA, Title VII, and Section 1983. (See the Defs.’ Opp’n Mem. of
Law, Dkt. No. 25, at 9–14; 16–20.)
The Plaintiff did not file a reply memorandum in support of her motion for leave amend
the FAC.
II. DISCUSSION
A. As to the City Defendants’ Partial Motion to Dismiss
As noted, on November 13, 2015, the City Defendants filed a partial motion to dismiss
the Plaintiff’s claims in the original complaint against Queens College because they contended
that Queens College is not a cognizable legal entity. They also asserted that the Plaintiff’s
ADEA and Section 1983 claims failed on sovereign immunity grounds. (See the Defs.’ Mem. of
Law, Dkt. No. 12–1, at 1–6.)
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Well-worn legal authority supports the City Defendants’ contention that sovereign
immunity guaranteed by the Eleventh Amendment bars ADEA and Section 1983 claims against
CUNY. See Clissuras v. City Univ. of New York, 359 F.3d 79, 83 (2d Cir. 2004) (Per Curiam)
(“Plaintiffs’ suits against CUNY are equivalent to suits against the State of New York and are
therefore barred by the Eleventh Amendment.”); see also Kimel v. Florida Bd. of Regents, 528
U.S. 62, 91, 120 S. Ct. 631, 650, 145 L. Ed. 2d 522 (2000) (holding that Congress did not validly
abrogate sovereign immunity for purposes of the ADEA); Dube v. State Univ. of New York, 900
F.2d 587, 594 (2d Cir. 1990) (noting that it is “well-settled” that Congress did not validly
abrogate state sovereign immunity under Section 1983).
There is also a wealth of authority supporting the City Defendants’ proposition that
Queens College, as a senior college within the CUNY network, is not a legal entity distinct from
CUNY and is therefore, not a proper Defendant in this Action. See Clissuras, 359 F.3d at 81 n.2
(“Under New York Law, CUNY is a separate corporate body. See N.Y. Educ. Law § 6203
(McKinney 2001). CUNY is composed of ‘each senior college and each community college.’ Id.
§ 6202(2) (McKinney Supp.2004). New York City Technical College does not appear to be a
legally cognizable entity apart from CUNY. See id. §§ 6202(2) & 6202(5). Consequently,
CUNY is the properly named defendant in this action.”).
Perhaps recognizing this, in support of her cross-motion to amend her complaint for a
second time, the Plaintiff stated that she “concedes that the Eleventh Amendment bars claims
against the state and state entities and that CUNY, and not Queens College, is the proper
defendant.” (The Pl.’s Mem. of Law, Dkt. No. 20, at 6.)
Accordingly, the Court grants as unopposed the Defendants’ partial motion to dismiss the
Plaintiff’s claims against Queens College; the Plaintiff’s Section 1983 claim; and the Plaintiff’s
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ADEA claims. Thus, the only remaining claims in this action are the Plaintiff’s Title VII claims
against CUNY.
The Court notes that the Plaintiff appears to concede that sovereign immunity under the
Eleventh Amendment bars all of her claims against the City Defendants. However, the City
Defendants did not move to dismiss all of her claims on the basis of sovereign immunity; rather,
they only moved to dismiss her Section 1983 and ADEA claims — not her Title VII claims —
on the basis of sovereign immunity.
Indeed, the City Defendants could not have moved to dismiss the Plaintiff’s Title VII
claims on the basis of sovereign immunity because it is well-established that Congress has
abrogated sovereign immunity for Title VII claims. See Fitzpatrick v. Bitzer, 427 U.S. 445, 457,
96 S. Ct. 2666, 2672, 49 L. Ed. 2d 614 (1976); Gengo v. City Univ. of New York, 479 F. App’x
382, 383 n.2 (2d Cir. 2012) (Summary Order) (“Title VII specifically abrogates state sovereign
immunity.”); Soloviev v. Goldstein, 104 F. Supp. 3d 232, 245-46 (E.D.N.Y. 2015) (“Plaintiffs’
Title VII claims against the CUNY Defendants are not barred by the Eleventh Amendment.”);
Shao v. City Univ. of New York, No. 12-CV-1566 (RJS), 2014 WL 5038389, at *9 (S.D.N.Y.
Sept. 30, 2014) (“[T]his sovereign immunity does not extend to Plaintiff’s Title VII claims
against CUNY.”); McCray v. City Univ. of New York, No. 10 CIV. 3152 (PAC)(DF), 2011 WL
1143045, at *3 (S.D.N.Y. Jan. 3, 2011) (“Congress has, however, by its authority under Section
Five of the 14th Amendment, abrogated the states’ immunity with respect to Title VII claims.”),
report and recommendation adopted, No. 10 CIV. 3152 (PAC)(DF), 2011 WL 1197467
(S.D.N.Y. Mar. 25, 2011).
In any event, for the reasons discussed above, the Court declines to construe the
Plaintiff’s statement in her memorandum of law to mean that sovereign immunity bars all of her
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claims against CUNY, including her Title VII claims. Thus, the Plaintiff’s Title VII claims
against CUNY remain in this action, and all of her other claims against CUNY and Queens
College are hereby dismissed.
B. As to the Plaintiff’s Cross-Motion to Amend
The Plaintiff moves for leave to file a proposed SAC so that she can add the following
claims against the Individual Defendants: (i) Title VII claims for gender discrimination, hostile
work environment, and retaliation; (ii) ADEA claims for age discrimination, hostile work
environment, and retaliation; and (iii) a Section 1983 claim for the violation of the Plaintiff’s
rights under the Equal Protection Clause.
The City Defendants oppose the Plaintiff’s motion because they argue that all of the
Plaintiff’s proposed claims against the Individual Defendants fail as a matter of law.
As set forth below, the Court agrees.
1. The Legal Standard
Where, as here, a plaintiff has already amended her complaint once as a matter of course,
any subsequent amendment requires “the opposing party’s consent or the court’s leave.” Fed. R.
Civ. P. 15(a)(2). Rule 15(a)(2) states that a court “should freely give leave when justice so
requires.” ‘“Reasons for a proper denial of leave to amend include undue delay, bad faith,
futility of amendment, and perhaps most important, the resulting prejudice to the opposing
party.”’ AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir.
2010) (parenthetically quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.
1981)). “Leave to amend may be denied on grounds of futility if the proposed amendment fails
to state a legally cognizable claim.” City of New York v. Grp. Health Inc., 649 F.3d 151, 158
(2d Cir. 2011) (parenthetically quoting AEP Energy Servs. Gas Holding Co., 626 F.3d at 726).
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“The standard for denying leave to amend based on futility is the same as the standard for
granting a motion to dismiss.” IBEW Local Union No. 58 Pension Trust Fund & Annuity Fund
v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015). Here, the City
Defendants argue that the Plaintiff’s proposed claims against the Individual Defendants would
not withstand a Rule 12(b)(1) motion dismiss for lack of subject matter jurisdiction and a Rule
12(b)(6) motion to dismiss for failure to state claim upon which relief can be granted.
“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). In resolving the question of subject matter
jurisdiction, the court “may consider affidavits and other materials beyond the pleadings to
resolve the jurisdictional issue, but [] may not rely on conclusory or hearsay statements
contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.
2004) (alteration added) (citing Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi, 215
F.3d 247, 253 (2d Cir. 2000)). “The plaintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc.,
426 F.3d 635, 638 (2d Cir. 2005).
To survive a 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949,
173 L. Ed. 2d 868 (2009) (citation omitted). Thus, “[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation
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to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at
570 (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009) (“[T]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”) (citation omitted). Accordingly, unless plaintiffs’
well-pleaded allegations have “nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.” Twombly, 550 U.S. at 569.
In considering a motion to dismiss, a court is generally “limited to the facts as asserted
within the four corners of the complaint, the documents attached to the complaint as exhibits,
and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776
(2d Cir. 2002)). “[W]here matter outside the pleadings is offered and not excluded by the trial
court, the motion to dismiss should be converted to a motion for summary judgment.” Nakahata
v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013) (citing Fed. R.
Civ. P. 12(d)).
2. As to the Proposed Title VII and ADEA Claims
The City Defendants argue that the Plaintiff’s proposed Title VII and ADEA claims
against the Individual Defendants fail as a matter of law because neither of those statutes
provides for individual liability. (See the Defs.’ Opp’n Mem. of Law, Dkt. No. 25, at 4.)
The Plaintiff does not offer a response to this argument, effectively abandoning her
proposed claims against the Individual Defendants under Title VII and the ADEA. See, e.g.,
M.M. ex rel. J.M. v. New York City Dep’t of Educ., No. 09 CIV. 5236 (PAC), 2010 WL
2985477, at *6 (S.D.N.Y. July 27, 2010) (“Plaintiffs’ failure to respond to the SED’s arguments
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constitutes an abandonment of their claims against the SED.”); Brandon v. City of New York,
705 F. Supp. 2d 261, 268 (S.D.N.Y. 2010) (“Brandon did not raise any arguments opposing
Defendants’ motion regarding these two claims. Accordingly, the Court deems Brandon’s first
and third claims abandoned.”).
Even if not abandoned, the City Defendants are correct that Title VII does not provide for
individual liability of supervisors in their individual capacities. Spiegel v. Schulmann, 604 F.3d
72, 79 (2d Cir. 2010) (“We have, however, determined that the remedial provisions of Title VII,
including § 2000e–5, do not provide for individual liability.”); Cayemittes v. City of New York
Dep’t of Hous. Pres. & Dev., No. 13-4071-CV, 2016 WL 860063, at *1 (2d Cir. Mar. 7, 2016)
(Summary Order) (“At the outset, we affirm the dismissal of all Title VII claims against
defendants sued in their individual capacities because Title VII does not provide for individual
liability.”).
In addition, while the Second Circuit does not appear to have explicitly decided the issue,
many recent decisions in this Circuit have also rejected Title VII claims against individuals in
their official capacities because those claims are duplicative of claims against a corporate
defendant. See, e.g., Garcia v. Yonkers Bd. of Educ., No. 15 CIV. 0767 (NSR), 2016 WL
3064116, at *4 (S.D.N.Y. May 27, 2016) (“Plaintiff cannot assert any Title VII retaliation claims
against the Individual Defendants, even in their official capacities, and all such claims are
dismissed.”); Jeune v. City of New York, No. 11 CIV. 7424 (JMF), 2014 WL 83851, at *3
(S.D.N.Y. Jan. 9, 2014) (“The Court also dismisses Plaintiff’s Title VII claims against the two
individual Defendants in their official capacities, as the claims are duplicative of Plaintiff's
claims against the City.”); Yu v. N.Y. State Unified Court Sys. Office of Court Admin., No. 11
Civ. 3226 (JMF), 2013 WL 3490780, at *4 (S.D.N.Y. July 12, 2013) (“[A] plaintiff may not
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bring a Title VII claim against an individual in his or her official capacity if the claim is
duplicative of the claim against the public employer.”); Emmons v. City Univ. of New York, 715
F. Supp. 2d 394, 410 (E.D.N.Y. 2010) (“Although the Second Circuit has not yet explicitly
decided the issue, ‘many recent decisions in this Circuit have rejected Title VII official capacity
claims.’”) (quotin, 704 F. Supp. 2d 202, 235 (E.D.N.Y. 2010)).
For similar reasons, courts have often dismissed ADEA claims against individual
defendants in both their individual and official capacities where, as here, the complaint also
names the corporate defendant. See, e.g., Boyd v. Broome Cmty. Coll., No. 3:14-CV-0397
(GTS) (DEP), 2015 WL 6962498, at *6 (N.D.N.Y. Nov. 10, 2015) (dismissing Title VII and
ADEA claims against individuals in their individual and official capacities because “while
certain district court cases from within the Second Circuit have held that a supervisory employee
may be named in his official capacity as an agent of an employer in certain circumstances, more
recent and more numerous district court decisions from within the Circuit have rejected such
official capacity claims.”); Doner-Hendrick v. New York Inst. of Tech., No. 11 CIV. 121 (SAS),
2011 WL 2652460, at *8 (S.D.N.Y. July 6, 2011) (“Neither Title VII nor the ADEA permit
individual liability, and where a plaintiff has named a corporate defendant, it is redundant to also
name individual agents of that corporate defendant, even in their ‘official capacity.’”); Saunders
v. NYC Dep’t of Educ., No. 07CV2725 (SJF)(LB), 2010 WL 331679, at *8 (E.D.N.Y. Jan. 19,
2010) (“Plaintiff’s Title VII and ADEA claims (second and first claims for relief, respectively)
against the individual DOE defendants and the UFT defendants are sua sponte dismissed as
frivolous, since, inter alia, individuals are not subject to liability under those statutes and any
‘official capacity’ claim would be redundant to plaintiff’s claims against the DOE.”).
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Here, the Plaintiff seeks to assert ADEA and Title VII claims against the Individual
Defendants in their individual and official capacities. As the cases above establish, the ADEA
and Title VII do not provide for personal liability of individual defendants. Therefore, the
ADEA and Title VII claims against the Individual Defendants in their individual capacities
clearly fail as a matter of law. In addition, CUNY is a named Defendant in this action. Under
these circumstances, most courts would also dismiss Title VII and ADEA claims against the
Individual Defendants in their official capacities because those claims are duplicative of the
Plaintiff’s claims against CUNY.
For these reasons, the Court finds that the Plaintiff’s proposed ADEA and Title VII
claims against the Individual Defendants are futile because the Plaintiff has failed to oppose the
the City Defendants’ argument and the claims also fail as a matter of law.
3. As to the Proposed Section 1983 Claim
The Plaintiff also seeks to add a Section 1983 claim against the Individual Defendants in
their official and individual capacities for the violation of her Equal Protection rights based on
their alleged discriminatory actions.
The Defendants argue that the proposed Section 1983 claim is futile because, among
other things, (i) the claims is barred by sovereign immunity and therefore, fails to invoke the
Court’s subject matter jurisdiction; and (ii) the allegations in the proposed SAC against the
Individual Defendants fail to state a plausible Section 1983 claim.
As described infra, for purposes of sovereign immunity, there is a significant legal
difference between a Section 1983 claim against an individual in his or her official capacity
versus a claim against an individual in his or her individual or personal capacity. Accordingly,
15
the Court analyzes, in turn, the Plaintiff’s proposed Section 1983 claim against the Individual
Defendants in their official and individual capacities.
a. As to the Section 1983 Claim Against the Individual Defendants in their
Official Capacities
“The Eleventh Amendment bars a damages action in federal court against a state and its
officials when acting in their official capacity unless the state has waived its sovereign immunity
or Congress has abrogated it.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804
F.3d 178, 193 (2d Cir. 2015) (citing Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009)). As
discussed earlier, Congress has not waived sovereign immunity for Section 1983 claims, and
CUNY is considered an “arm of the state” to which the Eleventh Amendment applies. See
Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (“[W]e find that his Section 1983 claim
is clearly barred by the Eleventh Amendment because the DMV is a state agency.”); Clissuras,
359 F.3d at 83 (“Plaintiffs’ suits against CUNY are equivalent to suits against the State of New
York and are therefore barred by the Eleventh Amendment.”). Thus, the Plaintiff’s proposed
Section 1983 damages claim against the Individual Defendants in their official capacities is
barred by the doctrine of sovereign immunity.
However, “[u]nder the well-known exception to this rule first set forth in Ex parte Young,
209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714 (1908), . . . ‘a plaintiff may sue a state official acting
in his official capacity — notwithstanding the Eleventh Amendment — for prospective,
injunctive relief from violations of federal law.’” State Employees Bargaining Agent Coal. v.
Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (alteration added) (quoting In re Deposit Ins. Agency,
482 F.3d 612, 617 (2d Cir. 2007)). “In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
16
characterized as prospective.’” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535
U.S. 635, 645, 122 S. Ct. 1753, 1760, 152 L. Ed. 2d 871 (2002) (quoting Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 138 L.Ed.2d 438 (1997)).
Here, the Plaintiff contends that her proposed Section 1983 claim against the Individual
Defendants alleges an “ongoing violation of the law” because she is still employed by CUNY,
and the Individual Defendants are allegedly continuing to discriminate and retaliate against her
by failing to promote her within the Public Safety Department. (See the Pl.’s Mem. of Law, Dkt.
No. 20, at 10–11.) She also asserts that her proposed claim can be categorized as prospective
injunctive relief because she requests injunctive relief in the SAC, which may include
reinstatement to her former position as Assistant Director of Public Safety/Security. (See id. at
7.) Thus, in this narrow fashion, the Plaintiff claims that her Section 1983 claim against the
Individual Defendants for injunctive relief falls within the Ex parte Young exception. (See id.)
In opposition, the City Defendants assert that the Ex parte Young exception is
inapplicable because the Plaintiff’s Section 1983 claim is not based on an ongoing violation of
federal law, but rather, based on discrete allegedly discriminatory acts that occurred in the past.
(See the Defs.’ Mem. of Law, Dkt. No. 25, at 21–22.) They also assert that the Plaintiff’s
Section 1983 claim fails to allege that the Individual Defendants have authority to grant her
reinstatement to her former position and therefore, her claim for “injunctive relief” is too vague
to be categorized as “prospective” within the meaning of Ex parte Young. (Id. at 24–25.) The
Court agrees.
The Second Circuit has held that employment claims seeking equitable reinstatement are
properly categorized as “prospective” and therefore, fall within the Ex parte Young exception.
See State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007)
17
(“Every Circuit to have considered the issue, including our own, has held that claims for
reinstatement to previous employment satisfy the Ex parte Young exception to the Eleventh
Amendment's sovereign immunity bar.”); Dotson v. Griesa, 398 F.3d 156, 179 (2d Cir. 2005)
(“[W]e conclude that Dotson's claim for equitable reinstatement is not barred by sovereign
immunity.”).
However, courts have held that conclusory requests for “injunctive relief” are not
sufficient to state a reinstatement claim under Ex parte Young. For example, in Emmons v. City
Univ. of New York, 715 F. Supp. 2d 394 (E.D.N.Y. 2010), the plaintiffs brought separate
discrimination claims against individual CUNY officials for injunctive relief. Id. at 407. In
opposition to a motion to dismiss those claims as barred by the Eleventh Amendment, the
plaintiffs argued that their claims fell within the Ex parte Young exception for prospective
injunctive relief. Id. at 407. The court found that “[o]n the face of the complaint, the Young
exception is not supportable” because the complaint was, according to the court, “far less clear in
its request for equitable relief, and ‘reinstatement’ is never mentioned.” Id. Accordingly, the
court granted the individual defendants’ motion to dismiss the discrimination claims for
injunctive relief against the CUNY officials based on the doctrine of sovereign immunity. Id.;
see also Pierre v. New York State Dep’t of Corr. Servs., No. 05 CIV. 0275 (RJS), 2009 WL
1583475, at *18 (S.D.N.Y. June 1, 2009) (finding that an “isolated incident of alleged disability
discrimination, in conjunction with conclusory language requesting unspecified injunctive relief,
is insufficient for purposes of Ex parte Young,” and dismissing a plaintiff’s discrimination
claims against state officials as barred under the Eleventh Amendment).
In addition, district courts in this Circuit have repeatedly held that the Ex parte Young
exception to sovereign immunity does not authorize claims against officials for reinstatement
18
where there are no allegations that the officials had authority to grant the plaintiffs with
reinstatement to their former positions. See Soloviev v. Goldstein, 104 F. Supp. 3d 232, 245
(E.D.N.Y. 2015) (dismissing reinstatement claims against state college officials because the
plaintiff failed to allege that the individuals were in a position to grant the plaintiffs
reinstatement); Siani v. State Univ. of New York at Farmingdale, 7 F. Supp. 3d 304, 317
(E.D.N.Y. 2014) (dismissing reinstatement claims against state officials who did not have
authority to provide the injunctive relief sought by the plaintiff); Schallop v. New York State
Dep't of Law, 20 F. Supp. 2d 384, 391 (N.D.N.Y. 1998) (“There is no evidence that either
Berens or Alden possessed the authority to reinstate Schallop even were she to prevail at trial.
Therefore, the reinstatement claims must be dismissed as to those defendants.”).
Here, the Plaintiff’s Section 1983 claim appears primarily related to the past acts of
discrimination allegedly committed by the Individual Defendants, such as their decision to
promote a male employee over the Plaintiff to the position of Director of Public Safety, and their
decision to allegedly demote the Plaintiff from her position as Assistant Director of Public
Safety/Security and later remove her from her office. These discrete acts of discrimination are
not the kind of ongoing violations of federal law that the Ex parte Young was intended to
remedy. See CSX Transp., Inc. v. New York State Office of Real Prop. Servs., 306 F.3d 87, 98
(2d Cir. 2002) (“[T]he Supreme Court has instructed that the purpose of Ex Parte Young is to
‘ensure that the doctrine of sovereign immunity remains meaningful, while also giving
recognition to the need to prevent violations of federal law.”’) (quoting Idaho v. Coeur d'Alene
Tribe, 521 U.S. 261, 269, 117 S. Ct. 2028, 138 L.Ed.2d 438 (1997)).
In her brief, the Plaintiff seeks to cast her vague request for “injunctive” relief as a claim
for reinstatement. However, there are no allegations in the proposed SAC which support her
19
contention. Indeed, the proposed SAC does not assert an explicit claim for reinstatement or any
other kind of prospective injunctive remedies. The only reference to any kind of injunctive relief
is a single mention of the phrase alongside every other form of damages remotely available to the
Plaintiff, including, “compensatory, emotional, psychological and punitive damages, lost
compensation, front pay, back pay, liquidate damage [sic].” Again, this is not the kind of
prospective injunctive relief authorized by Ex parte Young. See Emmons, 715 F. Supp. 2d at
407 (“ In her opposition, plaintiff attempts to shunt her claims into the ambit of Young by
arguing that she seeks prospective injunctive relief against Jackson and Guada, “including but
not limited to reinstatement.” . . . . However, as noted above, the complaint itself is far less clear
in its request for equitable relief, and ‘reinstatement’ is never mentioned. On the face of the
complaint, the Young exception is not supportable, and, therefore, all claims purportedly brought
pursuant to that doctrine are dismissed.”).
Finally, the proposed SAC contains no allegations suggesting that the Individual
Defendants have authority to reinstate the Plaintiff in her former role as Assistant Director of
Public Safety/Security. There is no suggestion that the Individual Defendants were involved in
the hiring process or the personnel decisions that are the primary bases for her Section 1983
claim.
Thus, based on these allegations alone, the Court finds that it is not plausible to conclude
that the Plaintiff is in fact seeking prospective injunctive relief, as opposed to compensation for
the Defendants’ allegedly discriminatory past acts. See Perciballi v. New York, No. 09CIV6933,
2010 WL 3958731, at *4 (S.D.N.Y. Sept. 28, 2010) (“However, Perciballi fails to allege that any
Individual Defendant has the authority to reinstate him. Accordingly, Perciballi’s claim for
injunctive relief against the Individual Defendants cannot proceed.”).
20
Accordingly, the Court finds that the doctrine of Ex parte Young does not authorize her
proposed Section 1983 claim against the Individual Defendant in their official capacities and
therefore, leave to amend the FAC to add that claim is denied as futile.
b. As to the Section 1983 Claim Against the Individual Defendants in their
Individual Capacities
Unlike Section 1983 claims against individuals in their official capacities, the Supreme
Court has held that “[t]he Eleventh Amendment does not bar § 1983 personal-capacity suits
against state officials in federal court.” Hafer v. Melo, 502 U.S. 21, 22, 112 S. Ct. 358, 360, 116
L. Ed. 2d 301 (1991). The reason for this distinction is that when state officials are sued in their
official capacities they are not considered “persons” within the meaning of Section 1983 because
“they assume the identity of the government that employs them.” Id. at 27, 112 S. Ct. at 362
(citation omitted). “By contrast, officers sued in their personal capacity come to court as
individuals” and “thus fit[] comfortably within the statutory term ‘person.”’ Id.; see also See
Tanvir v. Lynch, 128 F. Supp. 3d 756, 766 (S.D.N.Y. 2015) (recognizing that 42 U.S.C. § 1983
is one “mechanism[] that may provide for personal capacity damages actions in the constitutional
context against federal and state officers[.]”).
Accordingly, although, as described above, the Court finds that it lacks subject matter
jurisdiction over the Plaintiff’s proposed Section 1983 claim against the Individual Defendants in
their official capacities on sovereign immunity grounds, it finds that sovereign immunity does
not bar the Plaintiff’s proposed Section 1983 claim against the Individual Defendants in their
personal capacities.
Nevertheless, the City Defendants argue that the Plaintiff’s proposed Section 1983 claim
is futile for other reasons, including that the claim is time-barred; the claim fails to allege a
plausible claim for relief under Section 1983 because there are no allegations of personal
21
involvement on the part of the Individual Defendants in CUNY’s alleged discriminatory actions;
and the portion of the Section 1983 claim arising from age discrimination is pre-empted by the
AEDA. (See the Defs.’ Opp’n Mem. of Law, Dkt. No. 25, at 1–8, 12–16.)
The Court notes that the Plaintiff failed to file a reply brief or any memoranda responding
to these arguments. As discussed earlier, for this reason alone, the Plaintiff’s Section 1983 claim
against the Individual Defendants in their personal capacities is subject to dismissal. See Rivera
v. Balter Sales Co. Inc., No. 14-CV-1205 (LTS), 2014 WL 6784384, at *3 (S.D.N.Y. Dec. 1,
2014) (“A plaintiff’s failure to respond to contentions raised in a motion to dismiss claims
constitutes an abandonment of those claims.”); McLeod v. Verizon New York, Inc., 995 F. Supp.
2d 134, 143 (E.D.N.Y. 2014) (Spatt, J) (“[C]ourts in this circuit have held that ‘[a] plaintiff's
failure to respond to contentions raised in a motion to dismiss claims constitute an abandonment
of those claims.’”) (quoting Youmans v. Schriro, No. 12 Civ. 3690 (PAE) (JCF), 2013 WL
6284422, at *5 (S.D.N.Y. Dec. 3, 2013)).
Further, even under an independent review, the Court finds the proposed SAC fails to
state a plausible Section 1983 claim against the Individual Defendants. Therefore, the Court
does not reach the Defendants’ remaining arguments regarding timeliness and pre-emption.
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
“In order to establish individual liability under § 1983, a plaintiff must show (a) that the
defendant is a ‘person’ acting ‘under the color of state law,’ and (b) that the defendant caused the
22
plaintiff to be deprived of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist.,
365 F.3d 107, 122 (2d Cir. 2004). “Additionally, ‘[i]n this Circuit personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §
1983.’” Id. (alteration in original) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.
1977)).
“Personal involvement” for purposes of Section 1983 may be shown, among other ways,
by evidence that the “the defendant participated directly in the alleged constitutional violation”;
“the defendant, after being informed of the violation through a report or appeal, failed to remedy
the wrong”; “the defendant created a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom”; or “the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts.” Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (internal quotation marks omitted)). For example, “[w]hen an allegedly discriminatory
action is taken by an entity, such as the Board of Education, a participant in the decision making
process may be held liable for that action if the plaintiff can demonstrate that the individual
defendant acted with a[n] improper motive and played a ‘meaningful role’ in the decision
making process[.]” Span v. Enlarged City Sch. Dist. of Troy, No. 12-CV-0975, 2012 WL
3886177, at *2 (N.D.N.Y. Sept. 6, 2012) (collective cases).
In the present case, the Plaintiff’s Section 1983 claim is premised on the following
allegations. First, in in 2000, 2002, 2004, 2005, and 2007, the Plaintiff was passed over for a
promotion in favor of the Individual Defendant Pineiro, a male who is allegedly younger than the
Plaintiff. Second, in 2007, CUNY allegedly demoted the Plaintiff and replaced her with Rufus
Massiah, a male employee. Third, in retaliation for the Plaintiff filing a charge of discrimination
23
in 2008 and subsequent charges in 2012 and in 2014, the Defendants allegedly attempted to
marginalize the Plaintiff within the Queens College Department of Public Safety. Finally, in
2014, the Defendants removed the Plaintiff from her office and shifted her responsibilities to an
unidentified male colleague.
Even assuming arguendo that these allegations did constitute discriminatory acts in
violation of the Plaintiff’s rights under the Equal Protection clause, there are no allegations
which plausibly link the Individual Defendants to these acts. Instead, the Plaintiff primarily
resorts to group pleading against all of the Defendants, including CUNY and the Individual
Defendants, when alleging the above-allegations, a tactic which is expressly disfavored with
regard to Section 1983 claims. See Spring v. Allegany-Limestone Cent. Sch. Dist., 138 F. Supp.
3d 282, 293 (W.D.N.Y. 2015) (“Because the personal involvement of a defendant is a
prerequisite to an award of damages under § 1983, a plaintiff cannot rely on a group pleading
against all defendants without making specific individual factual allegations.”); Thomas v.
Venditto, 925 F. Supp. 2d 352, 363 (E.D.N.Y. 2013) (dismissing Section 1983 claims against
individual defendants because “[i]t is insufficient for the plaintiffs to rely on group pleading
against [these defendants] without making specific factual allegations [against them]”) (alteration
added) (quoting Bertuglia v. City of N.Y., 839 F. Supp. 2d 703, 723 n. 4 (S.D.N.Y. 2012)).
As stated earlier, there are no allegations in the proposed SAC that any of the Individual
Defendants took part in the decision not to promote the Plaintiff and to subsequently demote her,
or that they had authority over personnel decisions in CUNY’s Public Safety department. Nor
are there any allegations suggesting that the Plaintiff complained to the particular Individual
Defendants about their failure to promote her. Finally, there are no allegations suggesting that
the Individual Defendants were even aware that she filed EEOC charges against CUNY.
24
Indeed, the only allegation against the Defendant Rodriguez is that he is President of
CUNY. That allegation alone is clearly not sufficient to state a Section 1983 claim. See Back v.
Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (“An individual
cannot be held liable for damages under § 1983 ‘merely because he held a high position of
authority[.]”’) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)); Volpe v. Nassau Cty.,
915 F. Supp. 2d 284, 299 (E.D.N.Y. 2013) (“It is well-settled that where the complaint names a
defendant in the caption but contains no allegations indicating how the defendant violated the
law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should
be granted.”) (quoting Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999)).
Similarly, the only allegations against Massiah are that he was the Plaintiff’s supervisor;
on one occasion at an unspecified time he called the Plaintiff incompetent; and on another
occasion at an unspecified time he required other CUNY employees to obtain his permission
before transporting the Plaintiff to the scene of a security incident. The only allegation against
Pineiro other than his job title is that in 2008, he declined the Plaintiff’s request to work on a
security detail at a concert because he had already asked Massiah to work at the event.
Even if true, the Court finds that these facially neutral actions which are not connected in
any way to the allegations of discrimination and retaliation by CUNY do not plausibly give rise
to an inference that Massiah or Pineiro participated in CUNY’s alleged violations of the
Plaintiff’s Equal Protection rights. See Lesane v. City of New York, No. 11 CIV. 2104 (HB),
2011 WL 5242721, at *3 (S.D.N.Y. Nov. 3, 2011) (granting motion to dismiss a plaintiff’s
Section 1983 claims because “Plaintiff fails to allege any facts to indicate that Commissioner
Schriro, Warden Czermiawski, Deputy Hall, Deputy Miller, and Deputy Moore had any personal
involvement in, knowledge of, or responsibility for any constitutional deprivation relating to his
25
claims”); Gordon v. City of New York, No. 09CV3908 (CBA)(LB), 2009 WL 3878241, at *3
(E.D.N.Y. Nov. 18, 2009) (“Here, plaintiff fails to allege facts demonstrating that defendant
Horn or Hourihane had any direct involvement with, knowledge of, or responsibility for the
alleged deprivation of plaintiff s civil rights. Since the claim against these defendants, as
presently stated, can be supported only on the basis of the respondeat superior or vicarious
liability doctrines, which are not applicable to § 1983 actions, the claim must be dismissed
against defendants Horn and Hourihane.”).
For these reasons, the Court finds that the proposed SAC fails to allege the requisite
personal involvement of the Individual Defendants in the alleged acts of discrimination and
retaliation against the Plaintiff and therefore, fails to state a plausible Section 1983 claim against
them.
In sum, the Court finds that the SAC fails to allege a plausible claim under Title VII, the
ADEA, or Section 1983 against the Individual Defendants. Accordingly, the Court denies the
Plaintiff’s motion for leave to amend her complaint for a second time to add these claims against
the Individual Defendants.
C. As to the Additional Grounds for Dismissal Asserted in the City Defendants’ Reply
Papers
As discussed earlier, in its original partial motion to dismiss, the City Defendants moved
to dismiss the Plaintiff’s claims against the City Defendant under the ADEA and Section 1983
on sovereign immunity grounds; and they moved to dismiss the claims against Queens College
as duplicative of the claims against CUNY. (See the Defs.’ Mem. of Law, Dkt. No. 12–1.)
However, and importantly, the City Defendants did not move to dismiss the Plaintiff’s claims
against CUNY under Title VII for gender discrimination, hostile work environment, and
retaliation.
26
In their opposition to the Plaintiff’s motion to amend her complaint to add claims against
the Individual Defendants, the City Defendants seek for the first time to dismiss all of the
Plaintiff’s claims, including her Title VII claims for gender discrimination, hostile work
environment, and retaliation. (See the Defs,’ Opp’n Mem. of Law, Dkt. No. 25, at 9–12; 16–19.)
This is improper. Under Rule 12(h)(2), if a party fails to raise the defense of failure to
state a claim upon which relief can be granted in his or her pre-answer motion to dismiss, then
the party may raise the defense again in “(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or (C) at trial.” The Rule does not list opposition to a Rule 15
motion to amend as a proper procedural vehicle to raise a Rule 12(b)(6) argument that could
have been raised but was not in a party’s original motion to dismiss. See Simmons v. Justice, 196
F.R.D. 296, 297-98 (W.D.N.C. 2000) (“The defense of failure to state a claim under Rule
12(b)(6) . . . may be limited in the form of its presentation where it is not initially raised. Where a
party fails to raise a Rule 12(b)(6) defense in its answer, . . . Rule 12(h)(2) provides that such
defense may be raised either under Rule 12(c) as a motion for judgment on the pleadings or at
trial under Rule 50.”).
Further, courts have held that the filing of an amended complaint “does not automatically
revive the defenses and objections a defendant waived in its first motion to dismiss, nor does it
allow a defendant to advance arguments that could have been made in the first motion to
dismiss.” Jones v. U.S. Bank Nat. Ass’n, No. 10 C 0008, 2012 WL 899247, at *8 (N.D. Ill. Mar.
15, 2012); see also Sears Petroleum & Transp. Corp. v. Ice Ban Am., Inc., 217 F.R.D. 305, 307
(N.D.N.Y. 2003) (“Nevertheless, the amended complaint does not automatically revive all the
defenses and objections the defendant may have waived in a first motion to dismiss or to
challenge the sufficiency of the amended complaint with arguments that were previously
27
considered and decided by the court in the first motion to dismiss. Nor may defendant advance
arguments that could have been made in the first motion to dismiss but neglected to do so.”).
For this reason, courts have refused to consider arguments that could have been made in
an original motion to dismiss that were re-asserted in a motion to dismiss an amended complaint
or in opposition to the filing of an amended complaint. See Naples v. Stefanelli, No. 12-CV4460 (JS) (ARL), 2015 WL 541489, at *5 (E.D.N.Y. Feb. 7, 2015) (“The false arrest allegations
in the Second Amended Complaint are identical to false arrest allegations in the Amended
Complaint. The ESI Defendants therefore could have argued that probable cause existed in their
first motion to dismiss, but they did not. Accordingly, the ESI Defendants have waived the
ability to assert this defense in a second motion to dismiss. Their motion to dismiss the false
arrest claims is therefore DENIED.”); Jones v. U.S. Bank Nat. Ass;n, No. 10 C 0008, 2012 WL
899247, at *8 (N.D. Ill. Mar. 15, 2012) (finding that it was improper for the defendants to raise
an argument that a claim was not sufficient in a second motion to dismiss because it could have
been made in the first motion to dismiss); Limbright v. Hofmeister, No. CIVA5:09-CV-107
(KSF), 2010 WL 1740905, at *3 (E.D. Ky. Apr. 27, 2010) (“Any defense regarding the scope of
damages to which the Plaintiffs may be entitled was unquestionably available at the time of the
original motion while the children were still parties, but it was not included in that motion.
Accordingly, it ‘may not be the basis of a second pre-answer motion.”).
In the present case, the proposed SAC contains nearly identical allegations to the original
complaint with the exception of a few allegations regarding the titles of the Individual
Defendants. Thus, the City Defendants could have argued in their first motion to dismiss that the
Plaintiff’s Title VII claims against CUNY failed to state a plausible claim for relief. However,
they did not make that argument and instead sought to assert it for the first time in their reply
28
brief in support of their motion to dismiss and in opposition to the Plaintiff’s motion to amend
the original complaint. The text of Rule 12(g)(2) and the cases cited above establish that their
attempt to raise an argument in this procedural posture was improper. Therefore, the Court
declines to consider the Defendants’ new arguments regarding the sufficiency of the Title VII
claims against CUNY. To the extent the City Defendants would like to make such arguments,
Rule 12(g)(2) makes clear that they may do so in their answer, a Rule 12(c) motion for a
judgment on the pleadings, or at trial.
III. CONCLUSION
For the foregoing reasons, the City Defendants’ partial motion to dismiss is granted as
unopposed; Queens College is hereby dismissed from this action; the Plaintiff’s ADEA and
Section 1983 claims are dismissed in their entirety; and the Plaintiff’s cross motion for leave to
file a second amended complaint is denied.
For the purpose of clarity, the Court notes that the only remaining viable claims in this
action are the Plaintiff’s Title VII claims against CUNY for gender discrimination, hostile work
environment, and retaliation.
SO ORDERED.
Dated: Central Islip, New York
July 15, 2016
_/s/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
29
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