Ifedigbo v. Buffalo Public Schools
DECISION AND ORDER GRANTING Defendants' 23 Motion for Summary Judgment; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 3/10/2018. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
BUFFALO PUBLIC SCHOOLS,
JOSEPH GIUSIANA, and
In this action, Plaintiff Obi Ifedigbo alleges that his employer, Defendant Buffalo
Public Schools (“BPS”), and two BPS employees discriminated against him based on his
race and violated his due process rights, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. §§ 1981, 1983, and 1985.
Pending before this Court is Defendants’ fully briefed Motion for Summary
Judgment. (Docket No. 23.) For the reasons stated below, Defendants’ motion is granted
in its entirety.
Ifedigbo is an African-American male of Nigerian descent. He began working for
BPS on March 19, 1990. (Defendants’ Statement of Undisputed Facts (“Defendants’
Statement”), Docket No. 23-1, ¶ 2; Plaintiff’s Local Rule 56 Statement (“Plaintiff’s
Statement”), Docket No. 26-1, p. 2, ¶ 2.1)
Court has confirmed and is satisfied that the evidence cited in the parties’ Local Rule 56 Statements
supports the assertions therein. Cf. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001)
(holding that factual allegations contained in a Rule 56 Statement that find no support in the record
evidence must be disregarded and the record reviewed independently).
The organizational structure of the Buffalo public school system includes a Division
of Plant Services. (Defendants’ Statement, ¶ 10.) The Chief Operating Officer of BPS,
who at all times relevant was Defendant Joseph Giusiana, oversees and manages the
Division of Plant Services, including budgeting. (Defendants’ Statement, ¶¶ 9, 10.)
Within the Division of Plant Services, there were two positions called Assistant
Superintendent of Plant. (Defendants’ Statement, ¶ 11; Plaintiff’s Statement, p. 9, ¶ 11.)
One of those positions was held by Edward Lindsay, who previously held the post of
Senior Architect before his appointment to the Assistant Superintendent of Plant position
on August 24, 1992. (Defendants’ Statement, ¶ 3; Plaintiff’s Statement, p. 8, ¶ 3.)
Ifedigbo held the other position for his entire tenure with BPS. (Defendants’ Statement,
¶ 2; Plaintiff’s Statement, p. 8, ¶ 2.)
Although Lindsay and Ifedigbo held the same positions and were subject to the
same job description, they performed different duties. Lindsay’s responsibilities included
the planning and design of new school buildings and the renovation of existing school
buildings. (Defendants’ Statement, ¶¶ 4, 12.) He negotiated construction and consulting
contracts and managed and supervised the design and project-management staff.
(Defendants’ Statement, ¶¶ 5, 6, 12.) Ifedigbo, on the other hand, principally managed
the maintenance of new and existing school buildings, including supervising clerical staff
and maintenance crews, assigning work to tradesmen, and overseeing third-party service
contractors. (Defendants’ Statement, ¶¶ 8, 12.)
The distinctions between Lindsay and Ifedigbo’s day-to-day duties are reflected in
the Division of Plant Services organizational chart. (Defendants’ Statement, ¶ 13.) There,
Lindsay is listed as “Asst. Supt. Plant” overseeing a number of architects, the supervisor
of building construction, a mechanical engineer, and two drafting technicians, among
others. (Defendants’ Statement, ¶ 14.) In contrast, Ifedigbo is listed as “Asst. Supt. Bldg.
Maint. & Repair” overseeing the Director of Building Repairs and more than 80
tradespeople. (Defendants’ Statement, ¶ 14.)
In 2010, the BPS commissioned an organizational study by the consulting firm
MGT of America, Inc. (“MGT”), to examine the use and management functions of the
Buffalo public school system. (Defendants’ Statement, ¶¶ 15, 17; Plaintiff’s Statement,
p. 9, ¶¶ 15, 17.) In its July 2, 2010 final report, MGT made the following observations and
that “BPS does not have a clear and effective organizational structure for
the Facilities Department;”
that “the structure and the job titles should be regularly reviewed and reflect
the current needs of the District and profession;”
that BPS should “reorganize the Facilities Department to reduce
administrative staff and provide clear lines of authority and connection
that “having three individuals in a department all with the word
‘superintendent’ in their title is confusing;”
that BPS should create a “Director of New Construction” position to replace
Lindsay’s existing Superintendent of Plant position, which would be
responsible for the “planning, implementing, and commissioning of all
capital projects;” and
that BPS create several new middle-management positions, such as
“Executive Director for Facilities” and “Director of Building Safety and
(Defendants’ Statement, ¶¶ 16-20; Plaintiff’s Statement, p. 10, ¶¶ 16-20.)
Giusiana considered the MGT Study and agreed with some of its conclusions and
(Defendants’ Statement, ¶ 21.)
Although he disagreed with
implementing a new level of middle-management, Giusiana agreed that the Division of
Plant Services would benefit from reorganization, particularly as it related to differentiating
the duties actually performed by Lindsay and Ifedigbo, notwithstanding their identical job
descriptions. (Defendants’ Statement, ¶¶ 22-24.) Giusiana therefore began working with
the BPS Department of Human Resources and the City of Buffalo Division of Civil Service
in August 2010 to create a new job title that would distinguish Lindsay’s planning, design,
and construction duties from Ifedigbo’s building-maintenance duties.
Statement, ¶ 25.) Defendant Olivia Licata, as Administrative Director of Civil Service for
the City of Buffalo Division of Civil Service, assisted Giusiana in this endeavor.
(Defendants’ Statement, ¶¶ 27, 28.)
Not long thereafter (in September 2010), Lindsay retired from his Assistant
Superintendent of Plant position, which then remained unfilled while Giusiana and Licata
explored the creation of a new job title and position. (Defendants’ Statement, ¶ 26,
Plaintiff’s Statement, p. 10, ¶ 26.) Giusiana’s department told Licata that it wanted to
replace Lindsay’s Assistant Superintendent of Plant position with a new title and position,
while leaving Ifedigbo’s position and title unchanged. (Defendants’ Statement, ¶¶ 32, 50.)
That is, Giusiana sought to replace only Lindsay’s Assistant of Superintendent of Plant
position. (Defendants’ Statement, ¶¶ 32, 50.) Licata advised Giusiana that Lindsay’s
position could be replaced with a new job title and position without changing Ifedigbo’s
existing title or position. (Defendants’ Statement, ¶ 34.) As a result, Giusiana created
the new position and title of “Director of Facilities, Planning, Design, and Construction” to
replace Lindsay’s position. (Defendants’ Statement, ¶ 35; Plaintiff’s Statement, ¶ 35.)
Upon Giusiana’s creation of the new position, Licata deemed the new title
substantially different from the Assistant Superintendent of Plant title such that creation
of the “Director of Facilities, Planning, Design, and Construction” was warranted under
the civil service law. (Defendants’ Statement, ¶ 36.) Accordingly, on November 10, 2010,
the Commissioner of Human Resources officially adopted a new civil service position
titled “Director of Facilities, Planning, Design, and Construction.” (Defendants’ Statement,
¶¶ 37, 45; Plaintiff’s Statement, ¶¶ 37, 45.) This new position incorporated into its job
specifications some of the duties and qualifications from the Assistant Superintendent of
Plant position, while also adding new distinguishing features to make the position more
closely align with Lindsay’s construction-oriented duties. (Defendants’ Statement, ¶¶ 3839.) The new position also required a NYS Professional Architect’s license or the ability
to obtain one within six months of appointment. (Defendants’ Statement, ¶ 43.)
Ifedigbo did not apply for this new position. (Defendants’ Statement, ¶ 48.) He
remained in his unchanged title and position of Assistant Superintendent of Plant. Paul
McDonnell, who, like Lindsay, previously worked as an architect for the City of Buffalo,
received the provisional appointment to the new Director of Facilities Planning, Design,
and Construction position on February 25, 2011. (Defendants’ Statement, ¶¶ 49, 51.)
McDonnell was fully appointed to the position on May 29, 2012, after completing the
newly-developed civil service exam.
(Defendants’ Statement, ¶ 51.)
McDonnell worked under this new restructuring without any challenge, grievance, or
lawsuit since its inception through June 2012. (Defendants’ Statement, ¶ 52.)
In early 2012, the Chief Financial Officer for BPS instructed all department heads
to submit a proposed 10% cut in expenditures to close a projected budgetary gap of
approximately $20 million. (Defendants’ Statement, ¶¶ 54-55, 57.) To comply with this
directive, Giusiana proposed several cuts in his department, including the elimination of
Ifedigbo’s Assistant Superintendent of Plant position. (Defendants’ Statement, ¶ 58.) In
conjunction with the results of the MGT Study, Giusiana determined that Ifedigbo’s
oversight duties were largely duplicative of those provided by the Director of Building
Repairs, because both positions supervised the work of tradespeople and other
employees involved in the maintenance and repair of district facilities. (Defendants’
Statement, ¶ 59.) Giusiana therefore recommended eliminating Ifedigbo’s position to the
Chief Financial Officer in April 2012. (Defendants’ Statement, ¶ 60.) The Chief Financial
Officer accepted Giusiana’s recommendation and included the elimination of Ifedigbo’s
position in the 2012-2013 budget proposal, which resulted in a projected savings of
$68,545. (Defendants’ Statement, ¶ 61.)
On May 31, 2012, Giusiana gave Ifedigbo a letter terminating his employment
effective June 29, 2012. (Defendants’ Statement, ¶ 65; Plaintiff’s Statement, p. 19, ¶ 65.)
Ifedigbo then reached out to Licata to inquire whether he had civil service rights or
entitlement to any other positions within BPS. (Defendants’ Statement, ¶ 66; Plaintiff’s
Statement, p. 19, ¶ 66.) Licata advised Ifedigbo that he had no rights under the civil
service law and no entitlement to any other position with BPS.2 (Defendants’ Statement,
Licata determined that Ifedigbo could not “bump” McDonnell out of the newly-created position because
that position was not in a direct line below his title, and she further concluded that he could not “bump” the
Director of Building Repairs because that position was not considered in direct line with his, and in any
event, the individual who held that position had greater seniority. (Defendants’ Statement, ¶¶ 68-70.)
¶ 67; Plaintiff’s Statement, p. 19, ¶ 67.) Ifedigbo did not grieve Giusiana’s decision to
eliminate his position nor did he pursue any further relief under the civil service laws.
(Defendants’ Statement, ¶¶ 72-74.)
Rather, on September 6, 2012, Ifedigbo filed an Article 78 proceeding in New York
State Supreme Court against BPS. (Notice of Petition, Docket No. 24-1.) Therein,
Ifedigbo alleged that BPS’s decision to terminate his employment was arbitrary,
capricious, and an abuse of discretion. (Id.) He sought annulment of his June 29, 2012
termination and reinstatement to his same or a substantially similar position. (Id.) On
April 1, 2013, the trial court granted BPS’s motion for summary judgment and dismissed
Ifedigbo’s petition. (April 1, 2013 Order, Docket No. 24-2.)
Ifedigbo then timely appealed to the New York State Supreme Court, Appellate
Division, Fourth Department. (Defendants’ Statement, ¶ 86.) After full proceedings, the
Fourth Department affirmed the trial court in a written opinion issued on February 6, 2015.
See Ifedigbo v. Buffalo Pub. Sch., 3 N.Y.S.3d 831 (App. Div. 2015).
The Fourth Department rested its opinion on the following factual findings:
At the time of [Lindsay’s] retirement, [Ifedigbo] and [Lindsay]
held the same job position, Assistant Superintendent of Plant
(ASP), but the two men had different responsibilities and
performed different work. [Ifedigbo] ‘concentrated primarily
on current plant maintenance and repair,’ and [Lindsay]
‘concentrated primarily on future plant planning and
Rather than replace [Lindsay], [BPS] opted to eliminate the
second ASP position and replace it with the new Director of
Facilities position ‘[t]o create a better definition of
responsibilities between the two positions.’ According to the
Licata further concluded that Ifedigbo held no “retreat” rights because he never held any other permanent
civil service position other than his present title. (Id. at ¶ 71.)
job specifications for the new position, the Director of Facilities
had the added responsibilities of preparing estimates for
construction projects as well as preparing contracts and
evaluating proposals for construction or consulting services.
The new position also had additional work activities, including:
directing the development of office standards for design,
specifications and contracts; working with outside consultants
to acquire professional design, architectural and engineering
services; defining the scope of work and establishing project
schedules and deadlines; developing both short- and longterm capital planning and budgeting for effective utilization of
school buildings and administrative facilities; and preparing
and submitting budgets for capital improvements and
maintenance for school facilities. The job specifications for
that position mirrored the work that was then being performed
In addition to the knowledge and skills required for the ASP,
the Director of Facilities also needed to have comprehensive
knowledge of budget planning and administration. The new
position required possession of a professional architecture or
engineering license in contrast to the ASP position, which
deemed possession of such a license to be the equivalent of
the required work experience. The promotional requirements
for the Director of Facilities included ‘[c]ontinuous and
permanent status in any city department for three years as an
Associate Architect or Associate Engineer.’
Id. at 833.
In considering the case, the Fourth Department made the following findings:
“[BPS] established as a matter of law that its actions in 2010 and in 2012 ‘had a
rational basis and [were] not arbitrary;’”
“[BPS] established that its decision to reorganize its Facilities Department in 2010
was made as a result of a third-party study that identified redundancy within the
Department and the decision of [Lindsay] to retire;”
“[BPS] established that the determination to eliminate [Lindsay’s] ASP position and
to create a new position that was more in line with the tasks and responsibilities
that had been assigned to [Lindsay] was part of a rational reorganization plan;”
“[T]hat the determination to add, as a promotional requirement, prior experience
as an Associate Architect or Associate Engineer in any city department was neither
arbitrary nor capricious;”
“With respect to the elimination of [Ifedigbo’s] position 20 months [after creation of
the Director of Facilities position], we conclude that [BPS] established that there
was an economic justification for its action;” and
“[BPS] established that, in March 2012, all of its departments were directed to cut
their budgets by ten percent.”
Id. at 833-34.
In sum, the Fourth Department rejected Ifedigbo’s contention that “[BPS’s] sole
reason for making the job specifications for the new position so narrow was ‘to make it so
that [Ifedigbo] wouldn’t be eligible’ for it while, at the same time, ‘hiding this plan’ to
eliminate [Ifedigbo’s] position in the future.” Id. at 834. It found that no evidence in the
record supported Ifedigbo’s “conclusory and unsupported” allegations in this regard. Id.
After issuance of the Fourth Department’s opinion, Ifedigbo sought reargument
and leave to appeal to the New York Court of Appeals, both of which were denied.
Ifedigbo v. Buffalo Pub. Sch., 6 N.Y.S.3d 525, 128 A.D.3d 1426 (App. Div. 2015); Ifedigbo
v. Buffalo Pub. Sch., 38 N.E.3d 827 (N.Y. 2015).
While his Article 78 proceeding was pending, Ifedigbo commenced the instant
action on June 17, 2013. (Docket No. 1.) He filed an amended complaint on September
5, 2013, which alleges five causes of action: (1) unlawful discrimination on the basis of
race, in violation of Title VII; (2) unlawful discrimination on the basis of race, in violation
of 42 U.S.C. § 1981; (3) violation of due process, in violation of 42 U.S.C. § 1983; (4)
violation of equal protection, in violation of 42 U.S.C. § 1983; and (5) conspiracy to violate
civil rights, in violation of 42 U.S.C. § 1985. (Amended Complaint, Docket No. 5, ¶¶ 3370).
Defendants moved for summary judgment on March 31, 2015. (Docket No. 23.)
After completion of briefing on May 18, 2015, this Court reserved decision without oral
Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
drawn from the evidence must be "viewed in the light most favorable to the party opposing
the motion." Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,
26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import
of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). The function of the court is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249. “Assessments of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary judgment.” Rule v. Brine,
Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); it must
“offer some hard evidence showing that its version of the events is not wholly fanciful,”
D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be evidence
from which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S.
In the context of employment discrimination cases, the United States Court of
Appeals for the Second Circuit has instructed district courts to use extra care when
deciding whether to grant summary judgment, because “the ultimate issue to be resolved
in such cases is the employer’s intent, an issue not particularly suited to summary
adjudication.” Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y.
1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)).
But that does not preclude summary judgment in employment discrimination actions:
“[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of
intent or state of mind would operate as a talisman to defeat an otherwise valid motion.”
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second Circuit has noted
that “the salutary purposes of summary judgment—avoiding protracted, expensive and
harassing trials—apply no less to discrimination cases than to commercial or other areas
of litigation.” Id.
Defendants’ Motion for Summary Judgment
Defendants argue that they are entitled to summary judgment principally because
(1) Ifedigbo’s claims are barred by the preclusion doctrines (collateral estoppel and res
judicata), and (2) Ifedigbo fails to raise material issues of fact and Defendants are entitled
to judgment as a matter of law on each of his claims.3 These arguments are discussed
The Preclusion Doctrines
“The Full Faith and Credit Act, 28 U.S.C. § 1738, . . . requires the federal court to
give the same preclusive effect to a state-court judgment as another court of that State
would give.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S.
Ct. 1517, 1527, 161 L. Ed. 2d 454 (2005) (internal quotation omitted); see West v. Ruff,
961 F.2d 1064, 1065 (2d Cir. 1992). Application of the preclusion doctrines—collateral
estoppel and res judicata—serves to “relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411,
415, 66 L. Ed. 2d 308 (1980).
“To determine the effect of a state court judgment, federal courts, including those
sitting in diversity, are required to apply the preclusion law of the rendering state.”
Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 87 (2d Cir. 2000); see Giannone v. York Tape &
Label, Inc., 548 F.3d 191, 192-93 (2d Cir. 2008) (“[W]hen determining the effect of a state
Defendants also argue that the individual defendants are entitled to qualified immunity on Ifedigbo’s
constitutional claims. Because this Court finds Defendants otherwise entitled to summary judgment, it need
not reach this argument.
court judgment, federal courts, including those sitting in diversity, are required to apply
the preclusion law of the rendering state.”)
Because Defendants argue that the New York Article 78 proceeding has preclusive
effect, this Court looks to New York law.
In New York, collateral estoppel, or issue preclusion, bars the relitigation “in a
subsequent action or proceeding [of] an issue clearly raised in a prior action or proceeding
and decided against that party or those in privity, whether or not the tribunals or causes
of action are the same.” Ryan v. New York Tel. Co., 467 N.E.2d 487, 490 (N.Y. 1984)
(quoted in Burgos v. Hopkins, 14 F.2d 787, 792 (2d Cir. 1994)); see Marvel Characters,
Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002) (noting that collateral estoppel “prevents
parties or their privies from relitigating in a subsequent action an issue of fact or law that
was fully and fairly litigated in a prior proceeding”); United States v. Alcan Aluminum
Corp., 990 F.2d 711, 718-19 (2d Cir. 1993) (the “fundamental notion [of collateral
estoppel] is that an issue of law or fact actually litigated and decided by a court of
competent jurisdiction in a prior action may not be relitigated in a subsequent suit between
the same parties or their privies”). That is, “once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party to the prior
litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d
The doctrine applies in New York if “(1) the issue in question was actually and
necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the first proceeding.” Colon
v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995); Schwartz v. Public Adm’r, 246 N.E.2d 725,
729 (N.Y. 1969). To satisfy the first requirement, the proponent must show that “[t]he
issue to be decided in the second action is material to the first action or proceeding and
essential to the decision rendered therein, and that it is the point actually to be determined
in the second action or proceeding such that ‘a different judgment in the second would
destroy or impair rights or interests established by the first.’” D’Andrea v. Hulton, 81 F.
Supp. 2d 440, 443 (W.D.N.Y. 1999) (quoting Schuykill Fuel Corp. v. B. & C. Nieberg
Realty Corp., 165 N.E. 456, 457 (N.Y. 1929)). The party seeking to apply collateral
estoppel carries the burden on the first requirement; the party seeking to avoid it carries
the burden on the second. See Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991);
Hames v. Morton Salt, Inc., No. 12-CV-394, 2015 WL 12552030, at *3 (W.D.N.Y. Apr. 10,
Defendants argue that collateral estoppel works to bar Ifedigbo’s claims altogether,
because the issues raised in this action are the same as those resolved in the Article 78
proceeding, and because Ifedigbo had a full and fair opportunity to litigate those issues.
Such is not the case. While Ifedigbo had a full and fair opportunity to litigate in the Article
78 proceeding, the only issues resolved there that are also raised here concern whether
Defendants had a legitimate reason for terminating Ifedigbo’s employment and whether
Defendants were required to place Ifedigbo in the newly-created position. On the first
issue, the state court found that “[w]ith respect to the elimination of [Ifedigbo’s] position
20 months [after creation of the Director of Facilities position], we conclude that [BPS]
established that there was an economic justification for its action.” Ifedigbo, 3 N.Y.S.3d
at 833-34. On the second issue, the state court found that BPS acted rationally in
determining that Ifedigbo was not entitled to fill the newly-created position. See id. at 833.
Contrary to Defendants’ argument, the first finding does not entirely foreclose
Ifedigbo’s discrimination claims, because it is a “faulty assumption that termination for
cause necessarily precludes the possibility of termination motivated by unlawful animus.”4
Leon v. New York City Dep’t of Educ., No. 14-1811, 612 Fed.Appx. 632, 635 (2d Cir. May
22, 2015) (emphasis in original). In other words, it is possible for a plaintiff to succeed on
a discrimination claim even if there is also a legitimate reason for an employer’s action.
See, e.g., Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 47 (2d Cir. 2014) (finding that
a hearing officer’s findings that a plaintiff had engaged in violations that justified
termination did not preclude a jury from later finding that the plaintiff’s termination was
based at least in part on discrimination). Here, for example, Ifedigbo proceeds under both
pretext and mixed-motive theories of discrimination.
But Ifedigbo did not raise his race-discrimination claims in the Article 78
proceeding, nor did the state court make any findings concerning what role, if any, race
played in Defendants’ decision to eliminate Ifedigbo’s position. Rather, Ifedigbo’s Article
78 petition alleged that Defendants acted “in an arbitrary and capricious manner” and with
no justifiable reason when it eliminated his position. See Notice of Petition, Docket No.
24-1. The state court therefore never made any findings concerning discrimination. 5
As discussed below, however, the second finding precludes Ifedigbo’s § 1983 due process claim.
For this reason, Defendants’ reliance on Rameau v. New York State Dep’t of Health and Smith v. New
York City Dep’t of Educ., is misplaced. 741 F. Supp. 68, 71 (S.D.N.Y. 1990); 808 F. Supp. 2d 569 (S.D.N.Y.
2011). Smith involved Article 75 teacher-tenure rules and procedures, and the court there found that “the
hearing officers actually decided that any adverse employment action was justified and not based on
impermissible discrimination.” 808 F. Supp. 2d at 580. And in Rameau, which involved an Article 78
Consequently, not all of the issues raised in this action are the same as those presented
in the Article 78 proceeding, thus barring the wholesale application of collateral estoppel
that Defendants advocate. See Goonewardena v. New York State Workers’ Comp. Bd.,
09 Civ. 8244 (RA)(HBP), 2016 WL 7439414, at *8 (S.D.N.Y. Feb. 9, 2016) (rejecting
application of collateral estoppel where Article 78 petition did not allege race
discrimination); Lawtone-Bowles v. City of New York, Dep’t of Sanitation, 22 F. Supp. 3d
341, 349 n.8 (S.D.N.Y. 2014) (same); Latino Officers Ass’n v. City of New York, 253 F.
Supp. 2d 771, 786-88 (S.D.N.Y. 2003) (same); Harp v. City of New York, 218 F. Supp.
2d 495, 500 (S.D.N.Y. 2002) (denying application of collateral estoppel to racediscrimination claims where the plaintiff’s Article 78 petition did not raise any claims of
Res judicata, or claim preclusion, is a similar preclusion doctrine. It holds that “a
final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Allen, 449 U.S. at
94. The doctrine “is based on the requirement that the plaintiff must bring all claims at
once against the same defendant relating to the same transaction or event.” N. Assur.
Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir. 2000) (citation omitted).
New York law employs a transactional analysis for res judicata. This analysis
“bar[s] a later claim arising out of the same factual grouping as an earlier litigated claim
proceeding, the plaintiff claimed that his dismissal was arbitrary and capricious because it was based on
racial discrimination. In contrast to both of these cases, Ifedigbo’s Article 78 proceedings did not concern
any possible discriminatory reasons for his termination.
even if the later claim is based on different legal theories or seeks dissimilar or additional
relief.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Employment of this approach
“’does not . . . permit a party to remain silent in the first action and then bring a second
one on the basis of a preexisting claim for relief that would impair the rights or interests
established in the first action.’” Beckford v. Citibank N.A., 00 Civ. 205, 2000 WL 1585684,
at *3-*4 (S.D.N.Y. Oct. 24, 2000) (quoting Henry Modell & Co. v. Minister, Elders &
Deacons of Reformed Protestant Dutch Church, 502 N.E.2d 978 n.2 (1986)).
Res judicata applies in New York to bar a subsequent claim when “(1) the previous
action involved an adjudication on the merits; (2) the previous action involved the parties
or those in privity with them; and (3) the claims asserted in the subsequent action were,
or could have been, raised in the prior action.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir.
2001); see Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 285 (2d Cir. 2000). To
determine whether claims were or could have been asserted in the first action, courts
consider whether the second suit concerns “the same claim—or nucleus of operative
facts—as the first suit” by assessing “(1) whether the underlying facts are related in time,
space, origin, or motivation; (2) whether the underlying facts form a convenient trial unit;
and (3) whether their treatment as a unit conforms to the parties’ expectations.” Channer
v. Dep’t of Homeland Sec., 527 F.3d 275, 280 (2d Cir. 2008) (internal quotation marks
omitted). Res judicata does not apply, however, where “the initial forum did not have the
power to award the full measure of relief sought in the later litigation.” Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994).
Defendants argue that res judicata bars Ifedigbo’s race-discrimination claims,
because the Article 78 proceeding was an adjudication on the merits, Ifedigbo was a party
to the proceeding, and Ifedigbo could have asserted his race-discrimination claims.
Notwithstanding whether each prong of res judicata is met, the doctrine does not apply,
because Ifedigbo could not obtain the full measure of relief in the Article 78 proceeding
that is available to him here. See Colon, 58 F.3d at 870 n.3.
In the Article 78 proceeding, Ifedigbo sought only reinstatement or promotion.
(Notice of Petition, Docket No. 24-1.) Here, however, Ifedigbo seeks compensatory and
punitive damages, which are not available in Article 78 proceedings. See Goonewardena,
2016 WL 7439414, at *9. Consequently, because the state court lacked the power to
award Ifedigbo the full measure of damages that he now seeks, res judicata does not bar
his claims. See id. (finding that Article 78 proceeding had no res judicata effect because
the state court did not have the power to award the full measure of damages sought in
the second action); see also Colon, 58 F.3d at 870 n.3 (similar); Davis v. Halpern, 813
F.2d 37, 39 (2d Cir. 1987) (“[A] New York plaintiff is not barred from seeking damages, in
federal court, on civil rights claims by reason of a prior judgment on the same underlying
facts in an Article 78 proceeding requesting injunctive or affirmative relief.”); Harp, 218 F.
Supp. 2d at 499 (“Res judicata does not apply to the plaintiff’s racial discrimination claim
because in this action, he seeks compensatory damages that were not available in the
Article 78 proceedings.”)
Title VII Race-Discrimination Claim
Under Title VII, it is unlawful for an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1);
Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-93, 123 S. Ct. 2148, 2150, 156 L. Ed. 2d
When, such as here, there is no direct evidence of discrimination, the
McDonnell Douglas burden-shifting analysis applies.
See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105
Under this framework, the plaintiff must first establish a prima facie case of race
discrimination by showing that (1) he was a member of a protected class; (2) he was
qualified for his position; (3) he suffered an adverse employment action; and (4) the
circumstances of that adverse employment action give rise to an inference of
discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
If the plaintiff meets this initial burden, a rebuttable presumption of discrimination
arises, and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. See Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed.2d 207 (1981)). If the
defendant succeeds in making this showing, “the presumption of discrimination arising
with the establishment of the prima facie case drops from the picture.” Weinstock, 224
F.3d at 42 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742,
2747, 125 L. Ed. 2d 407 (1993)).
If the defendant meets its burden at the second stage, the burden returns to the
plaintiff to prove that the defendant’s explanation is pretext for unlawful discrimination.
Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (per curiam). The plaintiff
must produce “evidence that the defendant’s proffered, non-discriminatory reason is a
mere pretext for actual discrimination.” Weinstock, 224 F.3d at 42. The plaintiff “must
adduce enough evidence of discrimination so that a rational fact finder can conclude that
the adverse job action was more probably than not caused by discrimination.” Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004); see Terry,
336 F.3d at 138. “In short, the question becomes whether the evidence, taken as a whole,
supports a sufficient rational inference of discrimination.” Id. But “[i]t is not enough . . .
to disbelieve the employer; the factfinder must [also] believe the plaintiff’s explanation of
intentional discrimination.” Weinstock, 224 F.3d at 42 (quoting St. Mary’s, 509 U.S. at
There is no serious dispute that Ifedigbo has met his minimal burden of setting
forth a prima facie case of race discrimination. “The burden of establishing a prima facie
case of disparate treatment is not onerous.” See Carlton v. Mystic Transp., Inc., 202 F.3d
129, 134 (2d Cir. 2000) (characterizing burden as “minimal”). Ifedigbo is an AfricanAmerican male; he was performing his job duties satisfactorily; his employment was
terminated; and the circumstances of his termination, particularly the timing, arguably give
rise to an inference of discrimination.
Alternatively, given the minimal burden at this stage and Defendants’ proffer of a
legitimate, non-discriminatory reason for terminating Ifedigbo’s employment (discussed
below), this Court finds it most expeditious to assume the existence of a prima facie case
and move to the next stage of the analysis. See Besht v. Gen. Motors, 327 F. Supp. 2d
208, 212-13 (W.D.N.Y. 2004) (citing United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403 (1983) (“Where the
defendant has done everything that would be required of him if the plaintiff had properly
made out a prima facie case, whether the plaintiff really did so is no longer relevant.”));
Wado v. Xerox Corp., 991 F. Supp. 174, 187 (W.D.N.Y. 1998).
The burden now rests with Defendants to produce a legitimate, non-discriminatory
reason for Ifedigbo’s termination.
See Reeves, 530 U.S. at 142 (noting that the
defendant’s burden at the second stage is not one of proof or persuasion, but is more
appropriately considered a burden of production.) “This explanation must be ‘clear and
specific.’” Gallo, 22 F.3d at 1226 (quoting Meiri, 759 F.2d at 997).
Here, this Court need not linger. The issue of whether Defendants established a
legitimate, non-discriminatory reason for Ifedigbo’s termination was settled in the Article
78 proceeding, and, as indicated above, those determinations are entitled to preclusive
effect. In particular, Defendants have established (1) that Ifedigbo’s termination had a
rational basis and was not arbitrary; (2) that Ifedigbo’s termination was based on the
results of the MGT Study and BPS’s decision to reorganize Ifedigbo’s department; (3)
that all BPS departments were directed to cut their budgets by 10%; and (4) that there
was economic justification for Ifedigbo’s termination. See Ifedigbo, 3 N.Y.S.3d at 833-34.
Thus, Defendants have met their burden under the McDonnell Douglas test.
Ifedigbo must now present sufficient evidence from which a factfinder could
conclude that Defendants’ legitimate, non-discriminatory reasons are false and mere
pretext for unlawful race discrimination. “Where a plaintiff has alleged that an employer’s
reasons for an adverse employment action are pretextural, all reasonable inferences must
be drawn in favor of the plaintiff’s showing of pretext.” Joseph v. Manhattan & Bronx
Surface Transit Operating Auth., No. 96 Civ. 9015, 2004 WL 1907750, at *14 (S.D.N.Y.
Aug. 25, 2004). At this stage, the court must “examin[e] the entire record to determine
whether the plaintiff could satisfy his ‘ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff.’” Schnabel v. Abramson,
232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143.) This requires the court
to determine whether “there is sufficient potential proof for a reasonable jury to find the
proffered legitimate reason merely a pretext for impermissible retaliation.” Richardson v.
New York State Dep’t of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999). A defendant’s
proffered non-discriminatory reason, however, “cannot be proved to be a ‘pretext for
discrimination’ unless it is shown both that the reason was false, and that discrimination
was the real reason.” Olle v. Columbia Univ., 332 F.Supp.2d 599, 617 (S.D.N.Y. 2004)
(quoting St Mary’s, 509 U.S. at 502); see also AB v. Rhinebeck Cent. Sch. Dist., 224
F.R.D. 144, 153 n.9 (S.D.N.Y. 2004).
Consequently, to avoid summary judgment, Ifedigbo must establish the existence
of a genuine issue of fact as to whether Defendants’ proffered explanations are false and
merely pretext for unlawful discrimination. Weinstock, 224 F.3d at 42. Unless Ifedigbo
can point to evidence that reasonably supports a finding of prohibited discrimination,
Defendants are entitled to summary judgment. See James v. New York Racing Ass’n,
233 F.3d 149, 154 (2d Cir. 2000); see also Reeves, 530 U.S. 133 at 148 (noting that a
defendant is entitled to summary judgment if “the plaintiff create[s] only a weak issue of
fact as to whether the employer's reason [is] untrue and there [is] abundant and
uncontroverted independent evidence that no discrimination ha[s] occurred”).
Ifedigbo fails to carry his burden at this stage.
First, the state court has already determined that Defendants had a legitimate and
justifiable economic reason for terminating Ifedigbo’s employment.
See Ifedigbo, 3
N.Y.S.3d at 833-34. Ifedigbo is therefore precluded from again attempting to prove that
those reasons were false and that no legitimate reasons for his termination existed. For
that reason, his assertions that Giusiana and Licata acted outside the civil service law
(e.g., failed to abolish his position in good faith, failed to honor bumping rights) and cited
department restructuring only as a ruse for racial discrimination are nonstarters. So too
are Ifedigbo’s overarching arguments—curiously termed “the false epiphany” and “new
coat of paint”—that there was no difference between his position and Lindsay’s, and no
difference between his position and the newly-created position filled by McDonnell.
(Plaintiff’s Statement, pp. 3-5.) The state court rejected both arguments. See Ifedigbo,
3 N.Y.S.3d at 833-34.
All that remains, then, are Ifedigbo’s wholly inadequate arguments that Defendants
are simply lying and that their actions are consistent with a “history of racial discrimination
against African Americans” by the BPS. Here again, the state court necessarily found
that Defendants are not lying, because it found that BPS established a justifiable basis
for Ifedigbo’s termination. And in any event, such unsubstantiated and non-evidentiary
arguments are wholly insufficient to avoid summary judgment, as they do not constitute
admissible evidence from which a factfinder could conclude that Defendants’ legitimate,
non-discriminatory reasons for Ifedigbo’s termination are false. See Matsushita, 475 U.S.
at 586 (noting that the nonmoving party must do more than cast a “metaphysical doubt”
as to the material facts; it must “offer some hard evidence showing that its version of the
events is not wholly fanciful”).
Second, and similarly, Ifedigbo presents no evidence from which a reasonable
finder of fact could conclude that his employment was terminated because of his race.
The only fact even hinting at possible discrimination involves the timing of Ifedigbo’s
termination, which occurred just two days after McDonnell was fully appointed to the new
position. (Defendants’ Statement, ¶ 51.) Evidence in the record, however, indicates that
this timing was the function of the mandated budget cuts, the creation of the new civil
service title and test, and the process of approving Giusiana’s recommendation to the
Chief Financial Officer, rather than any discriminatory motive. (Defendants’ Statement,
¶¶ 60, 61.) Indeed, Ifedigbo and McDonnell worked together for nearly 18 months before
Ifedigbo’s position was eliminated. (Defendants’ Statement, ¶ 52.) Thus, this single fact
alone does not reasonably support Title VII liability.
As for a mixed-motive theory of discrimination, which Ifedigbo suggests in his
papers, this too fails. In a mixed-motive case, the plaintiff’s initial burden is to “focus his
proof directly at the question of discrimination and prove that an illegitimate factor had a
‘motivating’ or ‘substantial’ role in the employment decision.” Tyler v. Bethlehem Steel
Corp., 958 F. 2d 1176, 1181 (2d Cir. 1992) (quoting Price Waterhouse, 490 U.S. at 258).
This is a heavier burden than the de minimis one a plaintiff bears under a pretext theory,
because the plaintiff must “show that the evidence is sufficient to allow a factfinder to infer
both permissible and discriminatory motives.” Raskin v. Wyatt Co., 125 F.3d 55, 61 (2d
Cir. 1997). The burden is then on the defendant to prove by a preponderance of the
evidence its affirmative defense “that it would have reached the same decision as to [the
employee’s employment] even in the absence of the” discrimination.
To succeed on a mixed-motive theory, indeed, to even shift the burden to the
defendant, the plaintiff must produce direct evidence of discrimination akin to “a ‘smoking
gun’ or at least a ‘thick cloud of smoke.’” Raskin v. Wyatt Co., 125 F.3d 55, 61 (2d Cir.
1997) (quoting Fields v. New York State Office of Mental Retardation & Developmental
Disabilities, 115 F.3d 116, 124 (2d Cir. 1997)). Such evidence might include “policy
documents and evidence of statements or actions by decisionmakers ‘that may be viewed
as directly reflecting the alleged discriminatory attitude.’” Raskin, 125 F.3d at 60-61
(emphasis in original) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d
Ifedigbo presents no such evidence here. There is no evidence directly reflecting
that Defendants eliminated Ifedigbo’s position, even in part, because of his race. There
is no smoking gun. Ifedigbo’s mixed-motive theory therefore also fails.
Accordingly, even viewing the evidence and drawing all inferences in Ifedigbo’s
favor, this Court finds insufficient evidence from which a trier of fact could reasonably
conclude that Defendants terminated Ifedigbo’s employment, in whole or in part, due to
his race. Defendants are therefore entitled to summary judgment on Ifedigbo’s Title VII
§ 1981 Race-Discrimination Claim
Forty-two U.S.C. § 1981(a) provides as follows:
Ifedigbo’s Title VII claims must also be independently dismissed against Giusiana and Licata, because it
is well-settled that individuals may not be held liable under Title VII. See Tomka v. Seiler Corp., 66 F.3d
1295, 1313-16 (2d Cir. 1995), abrogated on other grounds by, Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).
All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to
A § 1981 race-discrimination claim consists of the following elements: (1)
membership in a racial minority; (2) an intention to discriminate on the basis of race by
the defendants; and (3) discrimination concerning one or more of the activities
enumerated in the statute. See Brown v. City of Oneonta, N.Y., 221 F.3d 329, 339 (2d
Cir. 2000); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.
1995) (per curiam). And it is subject to the same McDonnell-Douglas burden-shifting
analysis applicable to a Title VII claim. See Vill. of Freeport v. Barrella, 814 F.3d 594,
607 (2d Cir. 2016) (“[W]e analyze claims of racial discrimination identically under Title VII
and § 1981 . . . .”); Tolbert v. Smith, 790 F. 3d 427, 434 (2d Cir. 2015) (“The Title VII, §
1981 . . . discrimination claims are governed at the summary judgment stage by the
burden-shifting analysis first established in [McDonnell Douglas]”). Consequently, for the
reasons just discussed in the context of Ifedigbo’s Title VII claims—lack of sufficient proof
of race-based discrimination—Defendants are entitled to summary judgment on
Ifedigbo’s § 1981 claim.
§ 1983 Due Process and Equal Protection Claims
Forty-two U.S.C. § 1983 provides as follows:
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, except that in any action
brought against a judicial officer for an act or omission taken
in such officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the
District of Columbia.
Civil liability is imposed under 42 U.S.C. § 1983 only upon persons who, acting
under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. § 1983. On its own, § 1983 does not provide
a source of substantive rights, but rather, a method for vindicating federal rights conferred
elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386,
393-94,109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 145 n.3, 99 S. Ct. 2689, 2695 n.3, 61 L. Ed. 2d 433 (1979)). Accordingly, as a
threshold matter in reviewing claims brought under § 1983, it is necessary to precisely
identify the constitutional violations alleged. See Baker, 443 U.S. at 140. Here, Ifedigbo’s
due process and equal protection claims fall under the Fourteenth Amendment.
Due Process Claim
The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law . . . .” U.S.
Const. amend. XIV, § 1. Property interests are created and defined by “existing rules or
understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,
2709, 33 L. Ed. 2d 548 (1972). “When a governmental employee is found to have a
‘property interest’ in continuation of his or her employment, the Due Process Clause of
the Fourteenth Amendment forbids discharge unless the employee is afforded a pretermination hearing.” O’Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994).
As applicable here, under New York law, “a person holding a position by
permanent appointment in the competitive class of the classified civil service may not be
removed . . . except for incompetency or misconduct.” Cifarelli v. Vill. of Babylon, 894 F.
Supp. 614, 619 (E.D.N.Y. 1995) (internal citations and quotations omitted) (quoting N.Y.
Civ. Serv. L. § 75). The Second Circuit has held that employment under the New York
civil service law is protected under the Fourteenth Amendment. See O’Neill, 23 F.3d at
688-89; Dwyer v. Regan, 777 F.2d 825, 831-32 (1985). Such employment therefore
cannot be terminated without the protections afforded by due process.
Here, Ifedigbo’s position was abolished; he was not removed. As the Fourth
It is well established that a public employer may abolish civil
service positions for the purposes of economy or efficiency . .
., but it may not act in bad faith in doing so . . ., nor may it
abolish positions as a subterfuge to avoid the statutory
protection afforded civil servants before they are discharged .
. . A petitioner challenging the abolition of his or her position
must establish that the employer in question acted in bad
Ifedigbo, 3 N.Y.S.3d at 834 (quotations and citations omitted).
In any event, Ifedigbo’s claim is simply a repackaged version of the claim that he
asserted in the Article 78 proceeding. He maintains that Defendants violated his due
process rights by not adhering to § 80 of the New York Civil Service Law,7 under which
Ifedigbo believes he should have been permitted to “bump” McDonnell and take the
Director of Facilities Planning, Design, and Construction position after Giusiana abolished
his position.8 (Plaintiff’s Statement, p. 6, ¶ 6.) Notwithstanding that § 80 appears not to
apply because Ifedigbo’s civil service title was different from the newly-created title, see,
e.g., Matter of McDermott v. New York State Off. of Mental Health, 613 N.Y.S.2d 57, 57,
(App. Div. 1994) (finding that “same or similar positions” in § 80 means positions in the
same title), the state court already resolved this issue.
In the Article 78 proceeding, Ifedigbo alleged “that [BPS] acted arbitrarily in
creating the new position of Director of Facilities Planning, Design, and Construction in
2010, in failing immediately to place [Ifedigbo] in that position, and in eliminating his
position in 2012.” Ifedigbo, 3 N.Y.S.3d at 832 (emphasis added). He specifically asserted
in his petition that he should have been “bumped” to the position of Director of Facilities,
Planning, Design, and Construction because he is the true incumbent for that position;
Section 80 governs “suspension or demotion upon the abolition or reduction of positions.” See N.Y. Civ.
Serv. L. § 80.
As noted, Ifedigbo did not grieve or otherwise pursue administrative relief related to the elimination of his
position or the denial of his “bumping” rights. (Defendants’ Statement, ¶¶ 72-74.)
that BPS should have moved him into the new position; and that “BPS misled [Ifedigbo]
and acted in contradiction to what Civil Service Law requires by not bouncing the
employee in what was [Ifedigbo’s] old position.” (Notice of Petition, ¶¶ 16, 22, 30.)
The state court rejected these claims, finding that BPS “established that the
determination to eliminate [Lindsay’s] ASP position and to create a new position that was
more in line with the tasks and responsibilities that had been assigned to [Lindsay] was
part of a rational reorganization plan.” Ifedigbo, 3 N.Y.S.3d at 833. The state court further
found no fault in BPS’s determination of the new job’s specifications or qualifications,
finding that “[Ifedigbo] submitted nothing in opposition to the motion to establish that either
the determination to create the new position or the determination concerning the job
specifications for that new position was “without foundation in fact . . . [or] without sound
basis in reason.” Id. (citing Matter of Pell v. Bd. of Educ. of Union Free Sch. Dist. No. 1
of Town of Scarsdale & Mamaroneck, Westchester Cty., 313 N.E.2d 321, 325 (N.Y.
1974)). Thus, the state court resolved the issue of whether Ifedigbo was entitled to be
placed in the new position. He was not. Ifedigbo is precluded from now re-litigating that
issue. See Montana, 440 U.S. at 153 (“[O]nce an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party to the prior
litigation.”). Consequently, Defendants are entitled to summary judgment on this claim.
Equal Protection Claim
“The Fourteenth Amendment provides public employees with the right to be ‘free
from discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir.
2015) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). Public employees
aggrieved by discrimination in the terms of their employment can therefore sue
responsible state actors under § 1983. See id. Once action under color of state law is
established, a plaintiff’s Fourteenth Amendment equal protection claim mirrors a Title VII
claim: “[t]he elements of one are generally the same as the elements of the other and the
two must stand or fall together.”9 Feingold, 366 F.3d at 159 (citing Annis v. Cty. of
Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (“In analyzing whether conduct was
unlawfully discriminatory for purposes of § 1983, we borrow the burden-shifting
framework of Title VII claims.”)). Consequently, for the same reasons Defendants are
entitled to summary judgment on Ifedigbo’s Title VII claim, they are entitled to summary
judgment on his § 1983 equal protection claim, as there is no dispute that Defendants are
Defendants Licata and BPS are additionally entitled to summary judgment on this
claim due to lack of personal involvement in the alleged constitutional deprivation.
Personal involvement in the deprivation of federal constitutional rights is the sine qua non
of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275, 280
(S.D.N.Y. 1999). Moreover, it is well settled in this circuit that personal involvement by
Unlike a Title VII claim, however, a § 1983 claim can be brought against an individual. See Vega, 801
F.3d at 88.
defendants in cases alleging constitutional deprivations is a prerequisite to an award of
damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);
Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,
No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000). The Second Circuit
construes personal involvement to mean “direct participation, or failure to remedy the
alleged wrong after learning of it, or creation of a policy or custom under which
unconstitutional practices occurred, or gross negligence in managing subordinates.”
Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994).
Here, Ifedigbo has failed to present sufficient evidence from which a factfinder
could conclude that Licata was personally involved in the decision to terminate his
employment. Rather, it is undisputed that it was Giusiana who decided that Ifedigbo’s
position should be eliminated. (Defendants’ Statement, ¶ 58.) Licata, in fact, was not
even a BPS employee. (Id. at ¶ 28.) She was the Administrative Director of Civil Service
in the Department of Human Resources, Division of Civil Service, for the City of Buffalo.
(Id.) Licata is therefore additionally entitled to summary judgment on this claim for lack
of personal involvement.
BPS is also entitled to summary judgment on this claim. Section 1983 imposes
liability on a municipality when its official custom or policy causes an employee to violate
an individual’s constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98
S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978). Like supervisory liability, municipal liability in
the context of § 1983 actions cannot be premised solely on a respondeat superior theory,
but must be based on constitutional deprivations caused by an officially promulgated, or
de facto, governmental “custom” or “policy[.]” Pembaur v. City of Cincinnati, 475 U.S.
469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986).
The existence of municipal policy or custom can be demonstrated in several ways,
including: (1) showing an officially promulgated and endorsed municipal policy, Monell,
436 U.S. at 658; (2) showing that actions taken by officials with final policymaking
authority caused a constitutional violation, Pembaur, 475 U.S. at 480–81; (3) showing
that municipal decisionmaking evidences “deliberate indifference” to the rights of those
with whom municipal employees come in contact, including failure to remedy an otherwise
constitutional policy so deficient that policymakers knew or should have known with a high
degree of certainty that constitutional violations could result, City of Oklahoma City v.
Tuttle, 471 U.S. 808, 819, 105 S. Ct. 2427, 2434, 85 L. Ed. 2d 791 (1985), or failure to
train employees when training is necessary to prevent the violation of federal rights, City
of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989).
Here, Ifedigbo neither alleges the existence of a municipal policy or custom nor
offers any proof of one in opposition to Defendants’ motion. In fact, Ifedigbo does not
address this aspect of Defendants’ motion, other than to state that his § 1983 equal
protection claim is “functionally the same” as his Title VII claim. Accordingly, this Court
finds that BPS is further entitled to summary judgment on this claim for insufficient proof
of a municipal policy or custom that caused the alleged constitutional deprivations.
§ 1985 (3) Conspiracy Claim
Forty-two U.S.C. § 1985 (3) provides as follows:
If two or more persons in any State or Territory conspire or go
in disguise on the highway or on the premises of another, for
the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws; or for the
purpose of preventing or hindering the constituted authorities
of any State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the laws;
or if two or more persons conspire to prevent by force,
intimidation, or threat, any citizen who is lawfully entitled to
vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified
person as an elector for President or Vice President, or as a
Member of Congress of the United States; or to injure any
citizen in person or property on account of such support or
advocacy; in any case of conspiracy set forth in this section,
if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived
may have an action for the recovery of damages occasioned
by such injury or deprivation, against any one or more of the
To succeed on a § 1985 claim, a plaintiff must prove “(1) a conspiracy, (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and (3)
an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person
or property or deprived of any right or privilege of a citizen of the United States.” United
Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352,
3356, 77 L. Ed. 2d 1049 (1983). The plaintiff must also establish “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971);
see also Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Importantly, in the absence
of a valid § 1983 claim, there can be no § 1985 claim. See O’Bradovich v. Vill. of
Tuckahoe, 325 F. Supp. 2d 413, 426 (S.D.N.Y. 2004) (“In the absence of any claim
establishing a violation of civil rights, the court must also dismiss claims of conspiracy
brought under § 1985.”).
Here, this Court has already determined that Defendants are entitled to summary
judgment on Ifedigbo’s § 1983 claims. In addition, Ifedigbo is independently unable to
meet his burden on his § 1985 (3) claim. In the absence of sufficient evidence from which
a reasonable factfinder could conclude that Defendants discriminated against Ifedigbo on
the basis of his race, which is the case here, Ifedigbo cannot prove the existence of a
conspiracy to deprive him of his civil rights on account of his race. Defendants are
therefore necessarily entitled to summary judgment on this claim.
Ifedigbo has failed to come forth with sufficient evidence from which a finder of fact
could conclude that he was the victim of racial discrimination in employment or that
Defendants violated his due process rights. As a result, having viewed all evidence and
drawn all inferences in Ifedigbo’s favor, this Court finds that Defendants are entitled to
summary judgment on each of Ifedigbo’s claims.
Defendants’ Motion for Summary
Judgment is therefore granted.
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment
(Docket No. 23) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
Dated: March 10, 2018
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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