The opinion of the court was delivered by: STEWART
Plaintiff brought suit seeking damages for discrimination that allegedly occurred during the period of plaintiff's employment as a psychiatrist by the New York State Department of Mental Hygiene. Claims are alleged under 42 U.S.C. §§ 1981, 1983 (1976), 42 U.S.C. § 2000e et seq. (1976) ("Title VII") and various New York statutes. Defendants in this suit are Drs. Waugh, Talbott, Koz and personnel administrator Frangos (collectively the "individual defendants"), Dunlap Manhattan Psychiatric Center ("Center"), the New York State Department of Mental Hygiene, the Commissioner of Mental Hygiene, and the New York State Department of Civil Service, as well as its Commissioner (collectively the "state defendants"). Currently at issue are plaintiff's motion for partial summary judgment and defendants' cross-motion for summary judgment.
The parties 9(g) statements, the pleadings and interrogatories reveal the following undisputed facts. Plaintiff was hired by the New York State Department of Mental Hygiene in 1968. By 1972, plaintiff achieved the civil service designation of a Psychiatrist II ("level II") at the Center. The Center is owned and funded by the State of New York, operated by the New York State Department of Mental Hygiene and staffed by civil service employees. In an effort to qualify for promotion to Psychiatrist III ("level III"), plaintiff obtained certification by the American Board of Psychiatry and Neurology ("Board") on October 13, 1973, received New York State endorsement of his District of Columbia license to practice medicine and took a competitive civil service exam. Plaintiff passed the exam and was placed on the eligibility list for promotion to level III on June 28, 1974. He remained on the eligibility list through June 28, 1975.
Between June 28, 1974 and June 28, 1975 several positions were available at the Center which could be occupied by a level III employee. Plaintiff actively sought promotion to these positions, but was not promoted to level III. Plaintiff filed a complaint with the New York State Division for Human Rights ("Division") on November 10, 1975 and filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on November 13, 1975. The Division dismissed plaintiff's complaint on the ground of administrative convenience in December, 1976. The EEOC found that there was reasonable cause to believe that the Center's dismissal of plaintiff violated Title VII; and issued a notice of right to sue. Plaintiff commenced this action within 90 days of receiving this notice. In June, 1977, plaintiff was appointed to level III and was removed from that position on March 8, 1979.
Plaintiff seeks relief on a number of grounds. We may grant summary judgment on a claim only if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c). We shall examine each of plaintiff's claims separately to determine whether material factual disputes remain.
1. 42 U.S.C. §§ 1981, 1983
Plaintiff claims that he was denied equal employment rights by all of the defendants in violation of 42 U.S.C. § 1981 (1976) and that he was denied equal rights or civil rights by the individual defendants in violation of 42 U.S.C. § 1983 (1976). The defendants assert the statute of limitations as a defense to much of this action. In a suit under section 1981 or section 1983, we apply the statute of limitations of the most analogous state action. Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978). This Circuit has consistently applied a three year statute of limitations in such suits. See, e.g., Meyer v. Frank, 550 F.2d at 728, cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); EEOC v. Enterprise Ass'n Steamfitters Local 638, 542 F.2d 579, 590 (2d Cir. 1976), cert. denied sub nom. Rios v. Enterprise Ass'n Steamfitters, Local 638, 430 U.S. 911, 97 S. Ct. 1186, 51 L. Ed. 2d 588 (1977); Keyse v. California Texas Oil Corp., 590 F.2d at 47. As the original complaint in this action was filed on February 8, 1978, the plaintiff is barred from asserting claims arising prior to February 8, 1975. Thus, the acts alleged in paragraphs 8, 9 and 11 of the amended complaint cannot serve as a basis for relief under §§ 1981, 1983. This includes defendants' alleged failure to appoint plaintiff unit chief of the Alcoholism Unit in November, 1973, or to appoint plaintiff to fill the position vacated by Dr. Grahl in April, 1974, or to appoint plaintiff to the position advertised in the newspaper in October, 1974.
Five of plaintiff's § 1981 and § 1983 claims remain live controversies: defendants' failure to replace three provisional appointees with plaintiff as a permanent level III,
defendants' alleged failure to appoint plaintiff unit chief of the Greenwich Village Unit and the hiring of Dr. Wiesenfreund for that position, the appointment of Dr. Biron to provisional level III, the appointment of Dr. Hornick as a permanent level III, and the alleged retaliatory removal of plaintiff from his unit chief position in March, 1979. The state defendants raise the Eleventh Amendment as a bar to these remaining claims. The Eleventh Amendment prevents federal courts from exercising jurisdiction over suits by private parties against state agencies without the consent of the state. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114 (1978); Edelman v. Jordan, 415 U.S. 651, 677, 94 S. Ct. 1347, 1362, 39 L. Ed. 2d 662 (1974). It has been held that § 1983 does not abrogate the state's immunity from suit. Edelman v. Jordan, 415 U.S. at 677, 94 S. Ct. at 1362. However, state officials may be sued in their official capacity for prospective relief. Id.; Hutto v. Finney, 437 U.S. 678, 680, 98 S. Ct. 2565, 2568, 57 L. Ed. 2d 522 (1978); see Ex Parte Young, 209 U.S. 123, 159, 28 S. Ct. 441, 453, 52 L. Ed. 714 (1908). Moreover, the state defendants may be liable for the acts of their subordinates under the doctrine of respondeat superior as long as injunctive and declaratory relief is sought, although respondeat superior is no basis for a damage award under § 1981 or § 1983. See Project Release v. Prevost, 463 F. Supp. 1033, 1036-37 (E.D.N.Y.1978); Gill v. Monroe Cty. Dept. of Soc. Serv., 79 F.R.D. 316, 335 (N.D.N.Y.1978); Hupart v. Bd. of Ed. of New York, 420 F. Supp. 1087, 1107-08 (S.D.N.Y.1976).
We must determine the permissible scope of plaintiff's claims in light of these strictures. Plaintiff's amended complaint seeks a declaratory judgment that plaintiff was entitled to employment at level III from the date of his inclusion on the civil service list and that defendants' actions in denying him such a position were and still are unlawful.
Additionally, plaintiff seeks back pay from the first date of discrimination, damages, costs and attorney's fees. Any award of back pay or damages against the state defendants must be paid, if at all, from public funds in the state treasury. That is precisely the type of compensatory relief barred by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. at 663, 668, 94 S. Ct. at 1355, 1358; Solin v. State Univ. of N.Y., 416 F. Supp. 536, 539 (S.D.N.Y.1976). But an award of attorneys' fees to the prevailing plaintiff in a § 1981 or § 1983 action, as authorized by 42 U.S.C. § 1988 (1976), is not necessarily prohibited by the Eleventh Amendment. Gagne v. Maher, 594 F.2d 336, 341-42 (2d Cir. 1979), aff'd, 448 U.S. 122, 129, 100 S. Ct. 2570, 2575, 65 L. Ed. 2d 653 (1980). When a plaintiff is awarded prospective relief, recovery of attorneys' fees is merely an ancillary effect on the state treasury of the prospective relief. Id. Only plaintiff's claims against the state defendants seeking prospective relief and accruing after February 8, 1975 and, in the event plaintiff prevails, a claim for attorneys' fees may be entertained in this action.
Various defenses to § 1981 and § 1983 liability are asserted on behalf of defendants Frangos, Waugh, Talbott and Koz.2a In order to assess the sufficiency of these defenses to plaintiff's allegations of employment discrimination, we must first establish the elements of the causes of action under 42 U.S.C. § 1981 (1976) and 42 U.S.C. § 1983 (1976). Liability under § 1983 for racial discrimination requires proof of discriminatory purpose or intent. See Village of Arlington Heights v. Metropolitan Hous. Development, 429 U.S. 252, 265, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977). It is an open question whether § 1981 also requires purposeful discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 637, 99 S. Ct. 1379, 1386, 59 L. Ed. 2d 642 (1979) (Powell, J., dissenting). The protection against discrimination in employment provided by § 1981 is essentially analogous to Title VII. See Carrion v. Yeshiva Univ., 535 F.2d 722, 729 (2d Cir. 1976); Ingram v. Madison Sq. Garden Center, Inc., 482 F. Supp. 414, 423 (S.D.N.Y.1979). Therefore, a violation of § 1981 can be proved by evidence of either "disparate impact" or "disparate treatment." Id.; Patterson v. United Federation of Teachers, 480 F. Supp. 550, 553 (S.D.N.Y.1979). See Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 1980); but see Bronze Shields, Inc. v. N.J. Dept. of Civ. Serv., 488 F. Supp. 723, 729 (D.N.J.1980). Disparate impact is shown if the criteria used to determine job eligibility operate to exclude minorities. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158 (1973). Disparate treatment, on the other hand, requires proof of a discriminatory intent. Ingram v. Madison Sq. Garden Center, Inc., 482 F. Supp. at 425.
Plaintiff may establish a prima facie case of discriminatory treatment by showing: "(1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applications; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). The burden thereafter shifts to the defendants to produce some evidence indicating a non-discriminatory reason for plaintiff's rejection. Id. at 801, 93 S. Ct. at 1823.
We need not decide the precise contours of § 1981 at this time as plaintiff has established a prima facie case of intentional discrimination. See Members of Bridgeport Housing Authority Police Force v. Bridgeport, 85 F.R.D. 624, 643 (D.Conn.1980). Plaintiff, an Asian Indian, is a member of a racial minority. As a Hindu, plaintiff is also a member of a religious minority. Plaintiff applied for promotion to level III in at least one available position and, at the time, he was among those minimally qualified for the job.
Plaintiff was not promoted and the Center subsequently sought applicants from persons of plaintiff's minimal qualifications. Therefore, plaintiff has established a prima facie case of discriminatory treatment.
Defendants raise serious factual issues concerning the actual reason for plaintiff's rejection. We cannot grant summary judgment for plaintiff or for all defendants. We shall, however, examine plaintiff's allegations and the defenses raised by each individual defendant Frangos, Waugh, Talbott and Koz.
Frangos was the assistant personnel administrator at the Center from May, 1973 until February, 1976 and is still employed at the Center. He seeks to avoid liability under § 1981 and § 1983 by disclaiming any personal participation in the selection of appointees for level III. However, plaintiff alleges that he was interviewed by Frangos and others on April 23, 1975 for a promotion to an alleged level III position. Frangos' answers to plaintiff's interrogatories state that the personnel administrator is involved in hiring and promotion of civil service employees. The acts alleged to involve Frangos are not time-barred. There are questions of fact whether Frangos participated in the hiring process, whether the promotion was a ...