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DAISERNIA v. NEW YORK

March 22, 1984

NICHOLAS J. DAISERNIA, Plaintiff,
v.
THE STATE OF NEW YORK, NY STATE DEPT. OF CORRECTION, GREENE HAVEN CORRECTIONAL FACILITY, THOMAS A. COUGHLIN III, INDIVIDUALLY AND AS COMMISSIONER OF THE NY STATE DEPT OF CORRECTION, EARL MOORE, INDIVIDUALLY AND AS ASSISTANT COMMISSIONER OF THE NY STATE DEPT. OF CORRECTION, JAMES F. HOWSER, INDIVIDUALLY AND AS AN EMPLOYEE OF THE NY STATE DEPT. OF CORRECTION, BERTHLYNN DAVIS-MACINTOSH, INDIVIDUALLY AND AS AN ASSISTANT COMMISSIONER OF THE NY STATE DEPT. OF CORRECTION, AND GAIL MCGUANE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE NY STATE DEPT. OF CORRECTION, Defendants.



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

 Plaintiff Nicholas J. Daisernia, a white male commenced this action against the State of New York, the New York State Department of Correctional Services ("NYSDCS"), Greene Haven Correctional Facility and five individual state officers or employee, alleging that "defendants' employment practices violated Title VII of the Civil Rights Act of 1964 and deprived him of his constitutional right to equal treatment under the 13th and 14th Amendments to the Constitution, as secured by 42 U.S.C. § 1981 and § 1983." Complaint P2. He seeks reinstatement to the position of Family Reunion Coordinator for Greene Haven Correctional Facility, compensatory damages, punitive damages, back pay from June 1981 to the date of judgment, and attorneys fees.

 The Attorney General, on behalf of all the defendants, has moved to dismiss the action pursuant to Rule 12(b)(1), (6), Fed. R. Civ. P. As explained herein, the motion is granted in part and denied in part.

 For the purpose of this motion, the material allegations in plaintiff's complaint are accepted as true. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In January of 1981, plaintiff applied for the position of Coordinator of the Family Reunion Program at Greene Haven Correctonal Facility, a state prison for men; his education and past work experience in the field satisfied the publically posted job requirements.After interviewing first with defendant Earl Moore, Assistant Commissioner for the New York State Department of Correctional Services (NYSDCS), then with defendant James F. Howser, Director of Ministerial and Family Services for NYSDCS, and finally with Charles Scully (not named a defendant), Superintendant of Greene Haven Correctional Facility, plaintiff was told by Howser that he was Howser's and the Department of Ministerial and Family Services' choice for the position. He was informed, however, that the position would first have to be advertised in local papers in accordance with departmental affirmative action rules. About two months later, Howser indicated to the plaintiff that he had been selected and would be appointed prior to June 10, 1981, at which time the job would begin.

 At that time, plaintiff was employed by the Postal Department in Tallahasee, Florida. Based on Howser's statements, he resigned his job, losing accumulated benefits, and moved to Greene County, New York.

 On June 10, however, plaintiff was informed by Howser that he did not meet the Department's affirmative action eligibility requirements. Subsequently, upon receipt of proof that plaintiff was a disabled veteran, Howser told plaintiff that although he was eligible for affirmative action, the NYSDCS Office of Affirmative Action had determined that the job had been "over advertised" and would have to be re-advertised with lower requirements. A new advertisement, setting forth lower qualifications for the position, was published in July 1981. In early August 1981, plaintiff was informed that a black woman, who had fewer credentials and less qualifications than he, had been appointed to the position.

 Although plaintiff denominates five causes of action in his complaint, it is apparent that the first four are variations of the claims pursuant to § 1981 and § 1983 arising out of the above incident. The fifth cause of action, however, contains allegations of four other instances in which plaintiff was denied a position at state correctional facilities (three times at Coxsackie Correctional Facility and once at McGregor Correctional Institution); in each instance a less qualified woman was hired. Plaintiff therefore claims that the defendants "have engaged in a court of conduct which discriminates against white males, and prefers minorities and women over disabled veterans." Complaint P75.

 DISCUSSION

 I

 The defendants understandably read the complaint as asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in addition to asserting claims pursuant to § 1981 and § 1983. Their motion therefore seeks dismissal of the complaint for failure to exhaust the administrative prerequisites to seeking judicial relief under Title VII.42 U.S.C. § 2000e-5.

 However, as plaintiff has now made clear, he "does not assert a Title VII action. Rather, plaintiff has elected to bring an action under 42 U.S.C. § 1981 and § 983 providing a parallel federal remedy." Plaintiff's Supplemental Memorandum of Law at 4. It is well established that the failure of a claimant to satisfy the administrative prerequisites under Title VII does not preclude him from instituting an action under other civil rights statutes.See Johnson v. Railway Express Agency, 421 U.S. 454, 459-460, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Goss v. Revlon, 548 F.2d 405, 407 (2d Cir. 1976); Gresham v. Chambers, 501 F.2d 687, 690-91 (2d Cir. 1974). See also, Patsy v. Bd. of Regents of the State of Florida, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982) (exhaustion of state administrative remedies is not a prerequisite to an action under 42 U.S.C. § 1983).

 II

 The defendants next contend that, insofar as the action is brought pursuant to § 1981 and § 1983, it is barred in whole or part by the sovereign immunity of the state under the eleventh amendment. *fn1" This contention requires separate discussion of each of the invoked civil rights statutes.

 A. 42 U.S.C. § 1983

 42 U.S.C. § 1983 creates a cause of action for legal and equitable relief against "every person" who, under color of state law, deprives a citizen of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. *fn2" The Supreme Court has consistently held, albeit over strong dissent, that § 1983 does not abrogate the eleventh amendment immunity of states.Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979); Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). *fn3" See also LeGrand v. Evan, 702 F.2d 415, 417 (2d Cir. 1983). Such immunity also bars suit against state agencies. *fn4" Pennhurst State School & Hospital v. Halderman, 465 U.S. 104, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67, 52 U.S.L.W. 4155, 4158 (1984); Florida Dept. of Health v. Florida Nursing Home Ass'n., 450 U.S. 147, 67 L. Ed. 2d 132, 101 S. Ct. 1032 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1981) (per curiam). See also, Evans v. Headley, 566 F. Supp. 1133, 1140 (S.D.N.Y. 1983) (New York State Department of Correctional Services is immune from § 1983 suit).

 Plaintiff forcefully urges this court to recognize an exception to the holding of Quern v. Jordan where, as here, the § 1983 claim alleges race and sex discrimination. He begins by noting that Congress, pursuant to it authority under the fourteenth amendment, authorized actions under Title VII against the states as employers, thereby abrogating the state's eleventh amendment immunity from suit. Equal Employment Act of 1972. See Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). He then characterizes his § 1983 action as a suit to enforce his substantive rights under Title VII (as well as his substantive rights under the thirteenth and fourteenth amendments). Thus, it is plaintiff's position that:

 Congress having specifically abrogated the Eleventh Amendment immunity under Title VII, this court may hold that actions brought under 42 U.S.C. § 1981 and § 1983 to enforce Title VII rights are entitled to the benefit of that abrogation.

 Plaintiff's Supplemental Memorandum of Law at 14.

 The court is compelled to decline plaintiff's invitation for a number of reasons. First, although § 1983 is undoubtedly available to assert constitutional protections against discrimination, Supreme Court decisions indicate that § 1983 does not secure Title VII rights per se. In Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979), the Court addressed the scope of 42 U.S.C. § 1985(3) which, like § 1983, provides no substantive rights itself, but merely provides a remedy for certain rights conferred elsewhere. Respondent Novotny sought to ...


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