Dixie et al v. Antonacci et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendant Onondaga County's # 12 motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is DENIED. The Court further ORDERS that Defendant Antonacci 9;s # 11 motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED insofar as he moves to dismiss Plaintiffs' claims against him in his official capacity but DENIED in all other respects. The Court further ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial matters. Signed by Senior Judge Frederick J. Scullin, Jr. on 5/24/2017. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DINO DIXIE, ELI SMITH, and CHEYENNE
ROBERT E. ANTONACCI, III, and
THE COUNTY OF ONONDAGA,
WOLF, HALDENSTEIN, ADLER,
FREEMAN & HERZ LLP
270 Madison Avenue
New York, New York 10016
Attorneys for Plaintiffs
GREGORY M. NESPOLE, ESQ.
KEVIN COOPER, ESQ
MALCOLM T. BROWN, ESQ.
119 Washington Avenue
Albany, New York 12210
Attorneys for Plaintiffs
S. DAVID DEVAPRASAD, ESQ
SUGARMAN LAW FIRM LLP
211 West Jefferson Street
Syracuse, New York 13202
Attorneys for Defendant Antonacci
PAUL V. MULLIN, ESQ.
DEPARTMENT OF LAW
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, New York 13202
Attorneys for Defendant County
JOHN E. HEISLER, JR., ESQ.
KATHLEEN M. DOUGHERTY, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Pending before the Court are Defendant Antonacci's and Defendant County of
Onondaga's motions to dismiss Plaintiffs' complaint for failure to state a claim pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. Nos. 11, 12.
Plaintiff Dixie owns and operates 1st Point LLC ("1st Point"), a full service construction
management company. See Dkt. No. 1 at ¶ 7. Plaintiff Smith owns and operates So Gone Trash
Removal LLC ("SGTR") and E. Smith Contractors LLC ("E. Smith") (collectively the "Smith
Companies"). See id. at ¶ 8. Plaintiff Talbert owns and operates Cheyenne Realty Corp.
("CRC"). See id. at ¶ 9. Defendant Antonacci has been the elected Comptroller for Defendant
Onondaga County ("Defendant County") since January 2008. See id. at ¶¶ 10, 12.
When Defendant County "requires the provision of goods and/or services, it can turn to
the County's external workforce, i.e., those in the Onondaga County community outside of
County Government services." See id. at ¶ 25. "Through its procurement process the County
can award contracts in two ways: 1) it can award a contract to a vendor if the contract is below a
certain threshold or 2) develop a request for proposal ("RFP") that lists the scope of work the
County is seeking and the bidding requirements." See id.
According to Plaintiffs, the current County Executive of Defendant County "has put in
place a program to encourage minority-owned businesses to bid for County work both to
increase such participation and to encourage minority-owned businesses in Onondaga County."
See id. at ¶ 13. However, Plaintiffs contend that Defendant Antonacci, as Comptroller, has
contradicted the County Executive's program and, instead, has instituted his own policy aimed at
"continu[ing] the historic discrimination in government contracting." See id. at ¶ 14.
Plaintiffs allege that Defendant Antonacci's policy discourages minority-owned business
enterprises ("MBEs") from serving as vendors to Defendant County and protects and favors nonMBE vendors. See id at ¶ 15. Thus, Plaintiffs assert that Defendant Antonacci's illicit policy has
caused Defendant County to discriminate against MBEs in violation of the law. See id.
Specifically, Plaintiffs allege that Defendant Antonacci has "targeted minority businesses by
creating a custom and practice of intimidation and harassment through oppressive tactics." See
id. at ¶ 16. Plaintiffs contend that Defendant Antonacci has treated similarly situated non-MBEs
differently and has participated in
public and private degradation, humiliation, and personal intimidation of the
minority-owned contractor's principals and their employees, as well as the
purposeful delay of payments through either unnecessarily dissecting aspects of
minority-owned contractor deliverables even after the work has been approved by
the County and segregating out payments to minority-owned contractors, which
have resulted in financial damage.
Specific allegations with respect to each Plaintiff
1. Plaintiff Dixie
Plaintiff Dixie's business, 1st Point, received contracts for various projects through the
Construction Management RFP program, 1 including working on the Onondaga County Library,
Everson Parking Garage, Van Dyne Hospital, Upstate Hospital, and the Village of Solvay. See
Dkt. No. 1 at ¶ 28. As a contractor in the Construction Management RFP, Plaintiff Dixie was
instructed to report directly to the County Facilities Department. See id. However, in early
2015, Plaintiff Dixie learned that the Onondaga County Comptroller, Defendant Antonacci, had
a file on his desktop labeled "Dino Dixie." See id. at ¶ 29. Plaintiff Dixie discovered, through an
unrelated Freedom of Information Law ("FOIL") request, that Defendant Antonacci was
monitoring his payments. See id. According to Plaintiffs, shortly after receiving the FOIL
request, Defendant Antonacci "announced via press release that he would respond to FOIL
requests within forty-eight hours and that he would post the FOIL requests and his responses to
them for public viewing on his website." See id. at ¶ 31. The timing of the announcement and
the sudden change in his policy gave Plaintiff Dixie "the alarming impression that the FOIL
request was . . . prompted . . . by Defendant Antonacci in order to develop a County custom of
intimidating minority businesses through his powers as a County policymaker" by making
Plaintiff Dixie's financial information publicly available. See id. at ¶ 32.
The Onondaga County Department of Facilities ("Facilities") issued the Construction
Management RFP in an effort to select a panel of contractors with varying skill sets to be
available to provide services on future projects. In 2013, seven responsible bidders, including
1st Point, were selected to be on the panel of contractors. 1st Point was the only minority-owned
business on the panel. After the panel was selected and when projects became available,
Facilities either assigned projects to a panelist or issued a mini-bid to the panelists to compete
against each other, and the lowest bidder would most often prevail and be selected to work on the
designated mini-bid project. See Dkt. No. 1 at ¶ 28.
Moreover, before February 12, 2016, every payment from Defendant County to Plaintiff
Dixie was sent in a so-called "All-In-One" check where the check was mailed without an
additional envelope and with metered postage. However, beginning February 12, 2016, and until
the filing of this lawsuit, every payment that Plaintiff Dixie has received for work related to
County contracts has come in an official envelope from Defendant Antonacci's office with a
computer printed label and a United States Flag stamp. See id. at ¶ 38. According to Plaintiffs,
"the absence from the All-In-One Checks of the Metered Postage Mark meant that the Defendant
Antonacci never forwarded it to the County operated mailroom [but, i]nstead, purposely held
back each of [Plaintiff] Dixie's payments, so that he or his employees could personally mail out
the checks in line with his intimidating New Custom." See id. at ¶ 39.
2. Plaintiff Smith
Defendant County awarded Plaintiff Smith's companies three contracts to be completed
between late 2015 and early 2016. See id. at ¶ 42. Defendant Antonacci refused to make
payments to Plaintiff Smith ostensibly for procedural errors with respect to two of those projects.
First, Defendant Antonacci refused to pay invoices related to the Hutchings project because
Plaintiff Smith had not yet installed a door, although the contract allegedly allowed for payment
prior to the door's installation. See id. at ¶¶ 44, 47. Second, Plaintiff Smith was informed that
Defendant Antonacci refused to pay invoices related to the Civic Center project because those
invoices were not on company letterhead. See id. at ¶ 47. After Plaintiff Smith corrected these
issues, he alleges that Defendant Antonacci purposely delayed processing the payment even
further, causing financial and emotional distress. See id. at ¶ 50. In short, Plaintiff Smith
contends that Defendant Antonacci exceeded his authority in controlling how Plaintiff Smith was
Furthermore, Plaintiff Smith allegedly received payments for his contractual work on the
War Memorial Arena in a similar fashion as Plaintiff Dixie, i.e., All-In-One checks that were
placed in an envelope with a stamp. 2 See id. at ¶ 54. Moreover, Plaintiffs assert that Defendant
Antonacci personally showed up at the War Memorial job wearing a "County Comptroller
jacket" and asked a junior painter questions about who each of the workers were at the site. See
id. at ¶ 55. According to Plaintiffs, Defendant Antonacci's conduct exceeded his authority as
Comptroller and was harassment. See id.
In March 2016, Plaintiff Smith emailed Defendant Antonacci to inquire about late
payments and how to improve their relationship. See id. at ¶ 56. The two met in person and
Defendant Antonacci allegedly explained that he had received complaints of fraud for the work
Plaintiff Smith was completing at the War Memorial. See id. at ¶ 57. Thereafter, in April 2016,
Plaintiff Smith decided that he would no longer bid for County projects. See id. at ¶ 58.
3. Plaintiff Talbert
Defendant County selected Plaintiff Talbert to manage three County parking lots. See id.
at ¶ 61. A few months after Defendant County awarded Plaintiff Talbert the contracts,
Defendant Antonacci conducted an audit of his company. See id. at ¶ 62. According to
Plaintiffs, "[o]f the over fifty audits published on the Comptroller's website from January 1, 2014
to present the audit of CRC appears to be the only one against a vendor of the County." See id.
There was one exception -- one check was mailed in the normal fashion, although with a US
Stamp, rather than a metered postage marker. See Dkt. No. 1 at ¶ 54.
Furthermore, Plaintiffs assert that Defendant Antonacci attempted to lobby the Onondaga County
Legislature to revoke CRC's contract because there was a competing bid that would have paid
Defendant County $8,500 more. See id. at ¶¶ 63. However, Plaintiffs contend that the
competing bid was from a vendor who had previously defaulted on its responsibility to
Defendant County; and, further, the competing bid was unrealistic when considering the actual
revenue to be expected from managing the parking lots. See id. at ¶¶ 61-64. Defendant
Antonacci's tactics, according to Plaintiffs, were meant to humiliate Plaintiff Talbert by
publishing press releases degrading his company without acknowledging that the competing
offer was impracticable. See id. at ¶ 65.
Moreover, Plaintiffs allege that Defendant Antonacci sent an individual from the County
Comptroller's office to count the cars in all three of the parking lots that Plaintiff Talbert
managed. See id. at ¶ 66. However, this inspection was unannounced, and the contract with
Defendant County unambiguously requires "reasonable notice" to audit CRC's "books, records
and accounts in connection with said operations." See id. at ¶ 67. According to Plaintiffs, "[t]his
unannounced visit exceeded Defendant Antonacci's authority and was engineered to harass and
intimidate another African-American male business owner doing business with the County." See
id. at ¶ 68. Finally, Plaintiffs allege that Defendant Antonacci's actions led Plaintiff Talbert to
refuse to bid on another parking lot project. See id. at ¶ 70.
Based on the above-cited allegations, Plaintiffs bring two causes of action. First,
pursuant to 42 U.S.C. § 1983, Plaintiffs allege that "Defendant Antonacci through his actions and
instructions directly caused and continues to cause the violation of the Plaintiffs' Constitutional
rights granted under the 14th Amendment of the United States Constitution and its guarantee of
equal protection under the laws for all citizens." See Dkt. No. 1 at ¶ 74. "These actions include,
but are not limited to, creating a hostile environment for minority owned businesses in Onondaga
County through the targeted and improper use of audits; the withholding, delay, and differential
treatment of County payments to minority owned businesses; and other disparate treatment
towards minority owned businesses." See id. at ¶ 75. "These actions were deliberately designed
to disadvantage, harass, and intimidate minority-owned businesses and deter them from pursuing
contracts with Onondaga County and deny them equal protection of the law." See id. at ¶ 76.
Plaintiffs seek damages as well as an injunction. See id. at ¶¶ 77, 78.
Second, pursuant to 42 U.S.C. § 1983, Plaintiffs allege that Defendant County "through
the actions of Defendant Antonacci caused and continues to cause the violation of the Plaintiffs'
Constitutional rights guaranteed under the 14th Amendment of the United States Constitution
and its guarantee of equal protection under the laws for all citizens." See id. at ¶ 80.
Specifically, "Defendant County of Onondaga through the actions of Defendant Antonacci
maintained a policy and practice of discrimination against minority owned business[es] by and
pursuant to the acts of Defendant Antonacci, a policymaker of the County." See id. at ¶ 81.
"These actions include, but are not limited to, creating a hostile environment for minority owned
businesses in Onondaga County through the targeted and improper use of audits; the
withholding, delay, and differential treatment of County payments to minority owned businesses;
and other disparate treatment towards minority owned businesses." See id. at ¶ 82.
Standard of review
Courts use a two-step inquiry when addressing a Rule 12(b)(6) motion. First, "they
isolate the moving party's legal conclusions from its factual allegations." Hyman v. Cornell
Univ., 834 F. Supp. 2d 77, 81 (N.D.N.Y. 2011). Second, courts must accept factual allegations
as true and "determine whether they plausibly give rise to an entitlement to relief." Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). A pleading must contain more than a "blanket assertion[ ] of
entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). Thus, to
withstand a motion to dismiss, a pleading must be "plausible on its face" such that it contains
"factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted).
Furthermore, when addressing a Rule 12(b)(6) motion, a court may "consider documents
attached to or incorporated by reference in [a] complaint[.]" Cooper v. Parsky, 140 F.3d 433,
440 (2d Cir.1998) (citation omitted). Even where "'a plaintiff chooses not to attach to the
complaint or incorporate by reference a [document] upon which it solely relies and which is
integral to the complaint,' the court may . . . take the document into consideration in deciding the
defendant's motion to dismiss, without converting the proceeding to one for summary judgment."
Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quotation
In this case, the Court has considered Plaintiff's complaint as well as the two exhibits
annexed to the complaint, which include scanned copies of the envelopes that Defendant
Antonacci sent to Plaintiff Dixie. See Dkt. Nos. 1-1, 1-2.
Defendant Onondaga County's motion to dismiss
Defendant County argues that "Plaintiffs fail to allege that the Defendant County
somehow acted in a way to deprive Plaintiffs of their rights. To the contrary, as Plaintiffs state,
the County's official policy was to enhance Plaintiffs' and other minority-businesses' ability to
bid on and perform government contracts. See Dkt. No. 12-2 at 7. Although Plaintiffs allege
that Defendant Antonacci "engaged in intimidation, harassment, establishment of separate
payment arrangements, delayed payments, and improper use of audits against the Plaintiffs based
on their status as minority-owned businesses[,]" Defendant County asserts that "Plaintiffs fail to
allege facts plausibly suggesting that [Defendant Antonacci] was acting in accordance with
County policy." See id. Thus, Defendant County avers that, "[t]he injuries and damages alleged
by Plaintiffs . . . were not the result of the County's official policy but as a result of the
contravention of the policy by [Defendant Antonacci]." See id. at 8.
In a suit under 42 U.S.C. § 1983, a county may be held liable
if the conduct that caused the unconstitutional deprivation was undertaken
"a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body's officers[,] . . . [or] pursuant to
governmental 'custom' even though such a custom has not received formal
approval through the body's official decisionmaking channels."
Jeffes v. Barnes, 208 F.3d 49, 56–57 (2d Cir. 2000) (quoting [Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658,] 690-91, 98 S. Ct. 2018 [(1978)]). In other words, a county may be
liable where the '"injury was inflicted by [its] "lawmakers or by those whose edicts or acts may
fairly be said to represent official policy."'" Id. (quoting St. Louis v. Praprotnik, 485 U.S. 112,
121-22, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (plurality opinion) (quoting Monell, 436 U.S. at
694, 98 S. Ct. 2018)).
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In this case, Plaintiffs have alleged that constitutional violations occurred as a result of
policies that Defendant Antonacci, as County Comptroller, created. Thus, "the court must
determine whether [Defendant Antonacci] had final policymaking authority in the particular area
involved." Id. (citations omitted). "Whether the official in question possessed final
policymaking authority is a legal question, . . ., which is to be answered on the basis of state law,
…" Id. (internal citations omitted). In making this determination, the court should consult "'state
and local positive law, as well as custom or usage having the force of law.'" Id. (quotation
omitted). Furthermore, the county official "need not be a municipal policymaker for all
purposes" but must only be responsible for making policy in the particular area that is involved
in this action. Id.
Here, Plaintiffs contend that Defendant Antonacci violated their constitutional right to
equal protection under the law by implementing intimidating billing and auditing practices that
singled out MBEs on account of the race of their owners. Thus, the question in this case, is
whether Defendant Antonacci had final policymaking authority with respect to billing and
auditing duties. A fair review of the applicable laws clearly answers this question in the
Plaintiffs point first to the County Charter, which states, in pertinent part, '"The
comptroller shall . . . [be] the chief accounting and auditing officer of the county [and] [a]udit
and certify for payment all lawful claims or charges against the county or against funds for which
the county is responsible.'" See Dkt. No. 11-4, Ex "C," Onondaga County Charter, Article V,
Section 502. Similarly, the Administrative Code states, "The Comptroller shall be the chief
accounting and auditing officer of the County." Among the duties for the Comptroller, the
Administrative Code lists:
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(b) certify the availability of funds for all requisitions, contracts, purchases orders
and other documents by which the County shall incur financial obligations or for
the expenditure of funds for which the County shall be responsible;
(c) prescribe the form of receipts, vouchers, bills and claims, unless otherwise
required by the State Comptroller;
(d) audit and certify for payment all lawful claims or charges against the County,
whether for payroll or otherwise, or against funds for which the County shall be
responsible in whole or in part; . . .
See Dkt. No. 11-5, Ex. "D," Administrative Code, Section 5.02(b)-(d).
Further, New York County Law affirms that a county comptroller has "general superintendence
over the fiscal affairs of the county . . . ." N.Y. County Law § 577(1)(a). 3 In sum, New York
law confirms that Defendant Antonacci, as the Onondaga County Comptroller, had final policy
making authority over the very activities that Plaintiffs allege deprived them of their
Nonetheless, Defendant County argues that it cannot be held liable for Defendant
Antonacci's actions because its official policy was to encourage MBEs. See Dkt. No. 12-2 at 4.
Therefore, Defendant County contends that the Court should dismiss Plaintiffs' claim against it
because the alleged constitutional violations relate to actions which ran contrary to county
policy. Defendant Onondaga County's argument, however, ignores the legal principle that, when
"'an official has final authority over significant matters involving the exercise of discretion, the
choices he makes represent government policy.'" Clue v. Johnson, 179 F.3d 57, 62 (2d Cir.
1999) (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). In that vein,
"'municipal liability may be imposed for a single decision by municipal policymakers.'" Nagle v.
The Court takes judicial notice of local laws that are part of the public record. See Missere v.
Gross, 826 F. Supp. 2d 542, 553 (S.D.N.Y. 2011).
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Marron, 663 F.3d 100, 116 (2d Cir. 2011) (quotation omitted). Thus, although Defendant
Antonacci allegedly contradicted County policy, Defendant County could still be liable because
his actions, made in the scope of his authority as County Comptroller, are imposed on the
County. See id.
In sum, the Court finds that Plaintiffs have stated a plausible claim against Defendant
County for municipal liability related to the actions of Defendant Antonacci. Therefore, the
Court denies Defendant County's motion to dismiss.
Defendant Antonacci's motion to dismiss
In support of his motion, Defendant Antonacci makes the following five arguments: (1)
Plaintiffs lack standing to bring this action; (2) Plaintiffs' claims should be dismissed insofar as
they name Defendant Antonacci in his official capacity; (3) Plaintiffs fail plausibly to allege a
Fourteenth Amendment violation; (4) qualified immunity protects Defendant Antonacci; and (5)
Plaintiffs are not entitled to punitive damages.
1. Plaintiffs' standing
To establish standing under Article III of the Constitution, a plaintiff must demonstrate
the following: (1) an "injury in fact," (2) "'a causal connection between the injury and the
conduct complained of,'" and (3) a "'"substantial likelihood" that the requested relief will remedy
the alleged injury in fact.' . . ." McConnell v. FEC, 540 U.S. 93, 225 (2003), overruled on other
grounds by Citizens United v. Fed. Elec. Comm'n, 558 U.S. 310 (2010) (internal quotation and
citations omitted). In the context of the Equal Protection Clause, an injury occurs
[w]hen the government erects a barrier that makes it more difficult for members
of one group to obtain a benefit than it is for members of another group, a
member of the former group seeking to challenge the barrier need not allege that
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he [or she] would have obtained the benefit but for the barrier in order to establish
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S.
656, 666 (1993).
In that regard, "[t]he 'injury in fact' in an equal protection case of this variety is the denial of
equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain
the benefit." Id. (citation omitted). Thus, as the Second Circuit explained in Comer v. Cisneros,
37 F.3d 775 (2d Cir. 1994), "to show Article III standing for constitutionally-protected equal
protection claims, a plaintiff must allege that (1) there exists a reasonable likelihood that the
plaintiff is in the disadvantaged group, (2) there exists a government-erected barrier, and (3) the
barrier causes members of one group to be treated differently from members of the other group."
Id. at 793 (citations omitted).
Defendant Antonacci substantively argues that Plaintiffs have failed to allege a sufficient
injury because the only resulting impact of his allegedly unconstitutional acts is that Plaintiff
Smith stopped bidding on projects with the County and Plaintiff Talbert chose not to re-bid on a
parking project. The Court disagrees.
In Comer, the Second Circuit held that a plaintiff had standing to bring an equal
protection claim where she alleged that the defendant's Section 8 housing subsidy program "rules
and regulations, in their administration, violate the Constitution because they erect a barrier that
makes it more difficult for economically disadvantaged blacks to obtain a housing benefit than it
is for non-minorities." Id. at 791 (citation omitted). The unconstitutional barrier, therefore, was
how the administration executed its program. See id. Comer also addressed the plaintiffs'
challenge to a local preference program for housing subsidies and held that "[t]he injury is not
the failure to obtain housing assistance in the suburbs, but is the missed opportunity to compete
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for suburban housing on an equal footing with the local residents." Id. at 794; see also Thomas
v. City of N.Y., 143 F.3d 31, 36 (2d Cir. 1998) (finding standing where the plaintiffs' "equal
protection claim challenge[d] the imposition of allegedly discriminatory and burdensome
requirements (such as off-street parking") (footnote omitted)).
In this case, Plaintiffs, as individuals, have plausibly alleged sufficient barriers that have
caused them to be treated differently because of their race. Plaintiffs Dixie and Smith allege,
among other things, that Defendant Antonacci subjected them to a different payment procedure
meant to intimidate minorities. Furthermore, Plaintiff Talbert alleges that Defendant Antonacci
used his authority as Comptroller to try and persuade the County Legislature to revoke his
contract and further instituted audits of his company in a discriminatory manner. As stated
above, "[t]he 'injury in fact' . . . is the denial of equal treatment resulting from the imposition of
the barrier, not the ultimate inability" to continue contracting with the County. Jacksonville, 508
U.S. at 666.
Furthermore, the barriers that Plaintiffs allege are causally related to Defendant
Antonacci's actions; and, an injunction, one of the remedies that Plaintiffs seek, would likely
eliminate these barriers. Therefore, the Court finds that Plaintiffs have adequately shown that
they have standing to pursue their Equal Protection claims.
2. Plaintiffs' claims against Defendant Antonacci in his official capacity
Defendant Antonacci contends that Plaintiffs have only named him in his official
capacity. See Dkt. No. 11-6 at 13. Further, Defendant Antonacci argues that "[a]n action
brought pursuant to 42 U.S.C. § 1983 'against an official in his official capacity is not a suit
against the official personally, for the real party in interest is the entity.'" See id. (quoting Lore v.
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City of Syracuse, 670 F.3d 127, 168 (2d Cir. 2012)). Moreover, Defendant Antonacci asserts
that "'a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look
to the government entity itself.'" See id. (quoting Lore, 670 F.3d at 168). Therefore, according
to Defendant Antonacci, "[w]hen a plaintiff names both a municipality and an official in his or
her official capacity as defendants, the official capacity claim should be dismissed as duplicative
of the claim against the municipality." See id. (citing Gazzola v. Cty. of Nassau, No. 16-CV0909, 2016 WL 6068138, *4 (E.D.N.Y. Oct. 13, 2016)). Thus, Defendant Antonacci argues that
the claims against him are duplicative and that, therefore, the Court should dismiss him from this
suit. See id. at 14.
Plaintiffs do not dispute that their claims against Defendant Antonacci in his official
capacity are duplicative of their claims against Defendant County. However, a fair reading of
their complaint makes clear that Plaintiffs are also asserting their claims against Defendant
Antonacci in his individual capacity. Furthermore, Defendant Antonacci appears to recognize
that this is so because, otherwise, there would be no basis for him to assert that he is entitled to
"'Within the Second Circuit, where a plaintiff names both the municipal entity and an
official in his or her official capacity, district courts have consistently dismissed the official
capacity claims as redundant.'" Gazzola v. City of Nassau, No. 16-cv-0909, 2016 WL 6068138,
*4 (E.D.N.Y. Oct. 13, 2016) (quoting Phillips v. Cty. of Orange, 894 F. Supp. 2d 345, 384 n.35
(S.D.N.Y. 2012)) (other citations omitted). In light of the relevant case law, the Court grants
Defendant Antonacci's motion to dismiss Plaintiffs' claims against him insofar as Plaintiffs assert
those claims against him in his official capacity as duplicative of their claims against Defendant
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3. Plaintiffs' Fourteenth Amendment equal protection claims
a. The parties' positions
Defendant Antonacci states that "[t]he exact nature of plaintiffs' Fourteenth Amendment
claim against him is unclear." See Dkt. No. 11-6 at 17. In his initial memorandum, Defendant
Antonacci argues that whether Plaintiffs allege intentional discrimination, disparate treatment,
selective enforcement, or hostile work environment claims -- they all fail. See id. In their
response, Plaintiffs only address intentional discrimination. See Dkt. No. 17 at 15. In that sense,
the crux of the parties' disagreement is whether the facts in Plaintiffs' complaint plausibly allege
that Defendant Antonacci acted with discriminatory intent.
Defendant Antonacci argues that Plaintiffs have not "pled a single factual allegation that
connects any of his alleged actions to race or to their companies' alleged status as minorityowned businesses." See Dkt. No. 11-6 at 17. Instead, according to Defendant Antonacci,
simply allege that [he] engaged in conduct that was within his powers and duties
as Comptroller, describe their subjective dissatisfaction with his alleged execution
of those powers and duties (along with their apparent dissatisfaction with the
public nature of County contracting and the accountability a County contractor
has to taxpayers), and then speculate that [his] alleged actions were based upon
some unsubstantiated discriminatory animus.
Thus, Defendant Antonacci argues that, because there are no plausible allegations of intentional
discrimination, the Court should dismiss Plaintiffs' equal protection claims. See id.
Plaintiffs agree that "'[d]iscriminatory purpose . . . implies that the decisionmaker …
selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in
spite of,' its adverse effects upon an identifiable group."' See Dkt. No. 17 at 16 (quoting Hayden
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v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (internal quotation omitted)). "'However, while a
plaintiff must prove that there was a discriminatory purpose behind the course of action, a
plaintiff need not prove that the 'challenged action rested solely on racially discriminatory
purposes.'" See id. (quoting Hayden, 594 F.3d at 163).
Plaintiffs assert that Defendant Antonacci's
invidious and abusive application of his authority against Plaintiffs, when taken as
a whole, illustrates a course of conduct that was selected to injure and harass
minority contractors. [Defendant] Antonacci wielded his authority to disburse
checks and delay payment in a manner to harass and hamper the activities of
[Plaintiffs] Dixie and  Smith, contractors paid by the County for services. Since
[Plaintiff] Talbert pays the County pursuant to his contract and does not receive a
check from the County, the only method of harassment within [Defendant]
Antonacci's authority was to audit [Plaintiff] Talbert, which he did without
justification while lobbying against CRC's holding of the parking lot contract.
Furthermore, Plaintiffs contend that Defendant Antonacci "explicitly lobbied the County
Legislature against [Plaintiff] Talbert in favor of a non-minority contractor, who was
directly affiliated with the prior vendor that failed to pay the County almost $200,000 and
was subject to a judgment." See id.
The Court must first consider what allegations in Plaintiffs' complaint it must accept as
true for the purpose of this motion. See Hayden v. Paterson, 594 F.3d 150, 162 (2d Cir. 2010)
(setting aside conclusory allegations made in an intentional discrimination claim (footnote
omitted)). After isolating these facts, the Court will next consider whether Plaintiffs have
plausibly alleged a viable claim.
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(i). Plaintiffs' factual allegations
With respect to Plaintiff Dixie, Plaintiffs allege that Defendant Antonacci had a file on
his desktop labeled "Dino Dixie." See Dkt. No. 1 at ¶ 29. Thus, Plaintiffs assert that Defendant
Antonacci was personally monitoring his payments; although his contracts with Defendant
County provided that payments would come directly from the Facilities Department. See id.
Furthermore, Plaintiffs allege that Defendant Antonacci abruptly began to publish the results of
FOIL requests on Defendant County's website after a request was directed at information
regarding Plaintiff Dixie. In that regard, Plaintiff Dixie formed "the alarming impression that the
FOIL request was . . . prompted . . . by Defendant Antonacci in order to develop a County
custom of intimidating minority businesses through his powers as a County policymaker" by
making Plaintiff Dixie's financial information publicly available. See id. at ¶ 32.
Moreover, before February 12, 2016, every payment from the County to Plaintiff Dixie
was sent in a so-called "All-In-One" check where the check was mailed without an additional
envelope and with metered postage. However, between February 12, 2016, and the filing of this
lawsuit, every payment that Plaintiff Dixie has received came in an official envelope from
Defendant Antonacci's office with a computer printed label and a United States Flag stamp. See
id. at ¶ 38. According to Plaintiffs, "the absence from the All-In-One Checks of the Metered
Postage Mark meant that the Defendant Antonacci never forwarded it to the County operated
mailroom [but, i]nstead, purposely held back each of [Plaintiff] Dixie's payments, so that he or
his employees could personally mail out the checks in line with his intimidating New Custom."
See id. at ¶ 39.
With respect to Plaintiff Smith, Plaintiffs allege that Defendant Antonacci purposely
refused to make payments to Plaintiff Smith ostensibly for procedural errors regarding two of his
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projects. See id. at ¶¶ 44, 47, 50. Furthermore, Plaintiff Smith allegedly received payments for
his contractual work on the War Memorial stadium in a similar fashion as Plaintiff Dixie, i.e.,
All-In-One checks that were placed in an envelope with a stamp. 4 See id. at ¶ 54. Moreover,
Plaintiffs assert that Defendant Antonacci personally showed up at the War Memorial job
wearing a "County Comptroller jacket" and asked a junior painter questions about who each of
the workers were at the site. See id. at ¶ 55. Plaintiffs describe this behavior as "a pattern of
harassment." See id.
With respect to Plaintiff Talbert, Plaintiffs allege that, a few months after he was awarded
a contract to manage County parking lots, Defendant Antonacci conducted an audit of his
company. See id. at ¶ 62. According to Plaintiffs, "[o]f the over fifty audits published on the
Comptroller's website from January 1, 2014 to present the audit of CRC appears to be the only
one against a vendor of the County." See id. Furthermore, Plaintiffs assert that Defendant
Antonacci attempted to lobby the Onondaga County Legislature to revoke CRC's contract
because there was a competing bid that would have paid the County $8,500 more. See id. at
¶ 63. However, Plaintiffs assert that the competing bid was from a vendor who had previously
defaulted on its responsibility to Defendant County; and, further, that the competing bid was
unrealistic when considering the actual revenue to be expected from managing the parking lots.
See id. at ¶¶ 61-64. Defendant Antonacci's tactics, according to Plaintiffs, were meant to
humiliate Plaintiff Talbert by publishing press releases degrading his company without
acknowledging that the competing offer was impracticable. See id. at ¶ 65. Moreover, Plaintiffs
allege that Defendant Antonacci performed an unannounced inspection of Plaintiff Talbert's
With one exception -- one check that was mailed in the normal fashion, although with a
US Stamp, rather than a metered postage marker. See Dkt. No. 1 at ¶ 54.
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operations. See id. at ¶ 67. According to Plaintiffs, "[t]his unannounced visit exceeded
Defendant Antonacci's authority and was engineered to harass and intimidate another AfricanAmerican male business owner doing business with the County." See id. at ¶ 68.
(ii). Legal rules and application to the facts
A plaintiff has alleged plausible Equal Protection claims if it can demonstrate that the
defendant's actions, although race neutral on their face, were "'motivated by discriminatory
animus and [their] application results in a discriminatory effect.'" Jana–Rock Constr., Inc. v.
New York State Dep't of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006) (quoting [Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886)]). The requirement of discriminatory animus "'"implies
more than intent as volition or intent as awareness of consequences"'" of an action upon the
plaintiff. Hayden, 594 F.3d at 163 (quotation omitted). Rather, it requires that a defendant's
action was "'at least in part "because of," not merely "in spite of," its adverse effects'" upon the
plaintiff by reason of that person's race. Id.; see also Grenier v. Stratton, 44 F. Supp. 3d 197,
204 (D. Conn. 2014) (quotation omitted). "The plaintiff need not show, however, that a
government decisionmaker was motivated solely, primarily, or even predominantly by concerns
that were racial[.]" United States v. City of Yonkers, 96 F.3d 600, 611 (2d Cir. 1996) (citing
[Vill. of] Arlington Heights [v. Metro. Hous. Dev. Corp.], 429 U.S. [252,] 265, 97 S. Ct. at 563
The Second Circuit also instructs that, "[b]ecause discriminatory intent is rarely
susceptible to direct proof, litigants may make 'a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available.'" Hayden, 594 F.3d at 163 (quotation omitted). In
that regard, "'[t]he impact of the official action -- whether it bears more heavily on one race than
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another -- may provide an important starting point.'" Id. (quotation omitted). However, "unless
a 'clear pattern, unexplainable on grounds other than race, emerges,' . . . 'impact alone is not
determinative, and the Court must look to other evidence . . . .'" Id. (quoting [Arlington Heights,
429 U.S. at 266]). In Arlington Heights, the Supreme Court identified a non-exhaustive list of
some factors courts should consider when determining whether a racially discriminatory intent
existed, including (1) the historical background of the decision, (2) departures from the normal
procedural sequence, (3) substantive departures, and (4) the legislative or administrative history.
See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977).
As is apparent from the face of the complaint, there is no direct evidence that
conclusively links Defendant Antonacci's actions with a racially illicit motive. Viewed in one
light, all the actions could reasonably be seen as nothing more than the County Comptroller
taking his job seriously. However, at the motion to dismiss stage, the Court's role is ask whether
there is sufficient "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). The
Second Circuit has further instructed that "[t]his standard is 'applied with particular strictness
when the plaintiff complains of a civil rights violation.'" Sheppard v. Beerman, 18 F.3d 147, 150
(2d Cir. 1994) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). Bearing this in
mind, the Court denies Defendant Antonacci's motion to dismiss because Plaintiffs have
plausibly pled viable equal protection claims against him. 5
The Court notes that, without further evidence of discriminatory intent, Plaintiffs' claims would
likely fail to survive a motion for summary judgment. However, at this stage of the litigation,
accepting Plaintiffs' allegations as true, Plaintiffs have, albeit barely, stated a plausible equal
protection claim against Defendant Antonacci.
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First, the payment procedure regarding the All-In-One checks could reasonably be seen
as a ploy that Defendant Antonacci designed as a subtle way to inform Plaintiffs Dixie and Smith
that he was monitoring their accounts personally. Although at this point there is no indication
that Defendant Antonacci did not universally employ this policy, if Plaintiffs were able to prove
that Defendant Antonacci departed from normal procedures and singled out African-American
contractors for this treatment, they would likely be entitled to relief.
Furthermore, Plaintiff Smith alleges that Defendant Antonacci purposefully withheld
payments without regard to the terms of his agreed-upon contract. Again, there is no direct
evidence that Defendant Antonacci's decision was racially charged, but viewing the facts in the
light most favorable to Plaintiffs, this substantive departure from his role as Comptroller
provides at least an inference of discrimination substantial enough to defeat a motion to dismiss.
Perhaps most dramatically, Plaintiff Talbert has alleged that Defendant Antonacci
publicly advocated for revoking his contract with Defendant County, arguing instead that
Defendant County should have accepted a bid from a company with close ties to a previously
defaulted contractor. In their complaint, Plaintiffs quote Onondaga County Legislator Linda
Ervin as stating that
[Defendant] Antonacci came to us a year ago [about CRC] and the legislature
didn’t agree with him . . . . I don't know but it has been an unprecedented handson questioning and approach, to discredit and revoke the contract the county has
with Cheyenne Realty. I feel badly, because I worked with legislator Monica
Williams to push to have more minority contractors bid on county contracts. I
feel these types of actions by the comptroller will deter them.
See Dkt. No. 1 at ¶ 64.
A reasonable inference that a factfinder could draw from Ms. Ervin's statement is that race
played a role in Defendant Antonacci's crusade to revoke Plaintiff Talbert's contract. Indeed,
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because of Defendant Antonacci's tactics, Plaintiff Talbert filed a complaint with the local
NAACP, the County Executive, the County Legislature, and his local legislator. See id. at ¶ 71.
In addition, the complaint alleges, in multiple places, that Defendant Antonacci exceeded
the scope of his authority in the manner in which he treated Plaintiffs. See id. at ¶¶ 51, 55, 64,
68. For example, Plaintiffs allege that Defendant Antonacci harassed Plaintiff Talbert by
sending an unannounced inspector to his parking lots and requesting information that was
beyond the scope of his authority.
In sum, Plaintiffs have adequately alleged a factual basis that supports a reasonable
inference that Defendant Antonacci intentionally discriminated against them because of their
race. Therefore, the Court denies Defendant Antonacci's motion to dismiss.
4. Qualified immunity
As discussed above, Plaintiffs have alleged plausible equal protection claims against
Defendant Antonacci; therefore, his defense of qualified immunity must fail at this stage because
it is clearly established that Defendant Antonacci cannot intentionally erect discriminatory
barriers that impact Plaintiffs because of their race.
5. Punitive damages
As Defendant Antonacci suggests, "[p]unitive damages may be available in section 1983
actions when conduct is motivated by evil motive or intent or when it demonstrates reckless or
callous indifference to federally protected rights." Meriwether v. Coughlin, 879 F.2d 1037, 1048
(2d Cir. 1989) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632
(1983)). At this stage of the litigation, the Court denies Defendant Antonacci's motion to dismiss
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any claim for punitive damages because this issue should be decided on a full record, i.e., on
summary judgment, because Defendant Antonacci's actions are not outside all plausible
inferences of reckless indifference to Plaintiffs' rights. See, e.g., Parrott v. Krasicky, No.
3:12CV820, 2013 WL 3338570, *5 (D. Conn. July 2, 2013) (denying motion to dismiss a
punitive damages claim at the motion to dismiss stage).
Having reviewed the entire file in this matter, the parties' submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant Onondaga County's motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, see Dkt. No. 12, is DENIED; and the Court
ORDERS that Defendant Antonacci's motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, see Dkt. No. 11, is GRANTED insofar as he moves to dismiss
Plaintiffs' claims against him in his official capacity but DENIED in all other respects; and the
ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial
IT IS SO ORDERED.
Dated: May 24, 2017
Syracuse, New York
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