Transp. Servs. Inc., 600 F. Supp. 81 (E.D.N.Y. 1984).
The Supreme Court, however, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 18, 105 L. Ed. 2d 1, 109 S. Ct. 2273 (1989), held subsequent to Farkas that Congress may abdicate a state's Eleventh Amendment immunity even when enacting legislation pursuant to the commerce clause, provided that Congressional intent is clear and unequivocal. Although the Second Circuit has not ruled whether a state's Eleventh Amendment immunity has been abdicated pursuant to the ADEA, it has recently held that Congress did abdicate state's immunity under the Fair Labor Standards Act, based on the finding that public agencies were included within the FLSA's definition of employer. Reich v. State of New York, 3 F.3d 581, 590 (2d Cir. 1993). Similarly, the ADEA includes within its definition of employers a state or political subdivision of the state. By explicitly including states in the definition of an employer, Congress clearly intended that states be liable in federal court for monetary damages, including back pay, pursuant to the ADEA.
B. Due Process Claim.
Finally, defendants have moved to dismiss plaintiff's claim for compensatory damages. Plaintiff's claim for compensatory damages will only survive if he has stated a claim pursuant to 42 U.S.C. § 1983. Plaintiff's § 1983 claim alleges that his position as Assistant Director MIA was abolished and he was removed without a hearing in violation of the due process clause of the Fourteenth Amendment. Defendants provide no legal reason why plaintiff's claim is meritless, only to assert that plaintiff has offered no proof that the actual reason his position was abolished was to remove him from his position without affording him a hearing.
On July 3, 1991, plaintiff was informed by Pezzolla that the position of Assistant Director MIA was being abolished, and that he would be laid off effective July 31, 1991. In a letter dated July 26, 1991, to Webb, plaintiff protested the abolition of the position, and requested a hearing prior to his termination. He was never granted a hearing.
Plaintiff was a permanent competitive employee and had a property interest in his continued employment at DSAS. As a permanent competitive employee, he had a property interest in his job pursuant to the New York Civil Service Law, and was protected by due process. Berns v. Civil Service Comm'n, 537 F.2d 714 (2d Cir. 1976), cert. denied, 430 U.S. 930, 51 L. Ed. 2d 774, 97 S. Ct. 1549 (1977).
In Dwyer v. Regan, 777 F.2d 825, 833 (2d Cir. 1985), modified, 793 F.2d 457, 457 (2d Cir. 1986), the Second Circuit held that a state need not afford employees a pretermination hearing when it has conducted layoffs pursuant to a substantial reduction in its work force. Only when a single employee is targeted for termination, and that employee protests his termination and contends that it was just a sham and a pretext for the deprivation of his property rights, must the state afford him a hearing. Id. The plaintiff has not offered any proof that the work force reduction was a pretext initiated by the state for the purposes of targeting plaintiff for termination, Bapat v. Connecticut Dept. of Health Servs, 815 F. Supp. 525, 537 (D.Conn. 1992).
However, the plaintiff has raised an issue whether his position was abolished under circumstances which the trier of fact might determine to be a sham or pretext for firing him. Even with a valid work force reduction in place, "the State may not avoid its obligation to provide a pretermination hearing by engaging in sham or pretextual conduct." Dwyer, 777 F.2d at 831. In other words, the pretext or sham alleged in this case is not the work force reduction edict, but rather the abolition of plaintiff's position as Assistant Director MIA. Again, the job description for Quick's position, the duties assigned to Quick, the fact that Quick identified himself as the "Assistant Director MIA", and relieving plaintiff of his duties as Assistant Director MIA,
all raise a question of fact as to whether the plaintiff's position was really abolished, or if this was a mere pretext or sham to enable DSAS to fire the plaintiff without a hearing.
Notwithstanding the fact that a work force reduction occurred at DSAS, it is the considered opinion of this court that plaintiff has offered direct proof of age discrimination as well as meeting his burden of proving a prima facie case of age discrimination by indirect evidence. The circumstances surrounding plaintiff's job elimination, especially in the context of the work force reduction, present the plaintiff with a series of difficult hurdles. However, plaintiff has produced sufficient evidence from which a trier of fact could conclude that he was discriminated on the basis of age. There is no doubt that DSAS was forced to reduce its work force under the pressure of a budgetary crises. Yet plaintiff has introduced evidence that, if believed, suggests Webb may have hidden behind the work force reductions in an effort to discharge plaintiff because of his age.
Plaintiff has also raised an issue of whether the abolishment of his position and using it as a reason to fire him without granting him a requested hearing, violated his due process rights under the Fourteenth Amendment.
Accordingly, it is ORDERED that
1. Defendants' motion for summary judgment with regard to plaintiff's ADEA claim is denied;
2. Defendants' motion to strike plaintiff's claim for back pay is denied; and
3. Defendants' motion for summary judgment with regard to plaintiff's due process claim is denied.
David N. Hurd
U.S. Magistrate Judge
Dated: February 25, 1994
Utica, New York.