that date. In addition, the Court finds that Justice Toker's denial of the contempt motion does not bar plaintiff from asserting discrimination claims against the Transit Authority and NYCERS.
II. DISCRIMINATION CLAIMS
Plaintiff alleges that defendants discriminated against her on the basis of her race, sex, age, marital status and disability, in violation of 42 U.S.C. § 1983 ["Section 1983"], Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ["Title VII"], and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ["ADEA"].
A. 42 U.S.C. § 1983
Section 1983 provides a civil claim for damages and injunctive relief against any person who deprives another of a federal constitutional or statutory right under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Cullen v. Margiotta, 811 F.2d 698, 712 (2d Cir. 1987), cert. denied, 483 U.S. 1021 (1987). In support of these allegations, the plaintiff must set forth highly specific facts and not merely conclusory allegations. See, e.g., Spear v. Town of West Hartford, 771 F. Supp. 521, 527 (D.Conn. 1991), aff'd, 954 F.2d 63 (2d Cir.), cert. denied, 121 L. Ed. 2d 33, 113 S. Ct. 66 (1992).
Section 1983 does not, in itself, create substantive rights; in order to prevail, a plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979); Conlon v. City of Long Beach, 676 F. Supp. 1289, 1297 (E.D.N.Y. 1987). The federal statutory rights asserted by plaintiff as a basis for her § 1983 claim are Title VII and ADEA. However, plaintiff is barred from raising these claims in federal court because she has failed to exhaust administrative remedies. As a condition precedent to bringing a Title VII action, a plaintiff must file a complaint with the Equal Employment Opportunity Commission ["EEOC"] within 300 days of the discriminatory act and obtain a right-to-sue letter. 42 U.S.C. § 2000e-5(e), (f)(1). See, e.g., Sandler v. Marconi Circuit Technology Corp., 814 F. Supp. 263, 269 (E.D.N.Y. 1993); Kawatra v. Medgar Evers College of the City University of New York, 700 F. Supp. 648, 654 (E.D.N.Y. 1988). ADEA contains a similar exhaustion requirement. 29 U.S.C. § 626(d). See, e.g., Dennis v. Pan American World Airways, Inc., 746 F. Supp. 288, 290 (E.D.N.Y. 1990). Since plaintiff has not filed a complaint with the EEOC and the time to do so has passed, this court may not consider plaintiff's discrimination claims.
B. Title VII
Moreover, even if plaintiff had exhausted properly administrative remedies, her conclusory allegations of discrimination are not sufficient to withstand a motion to dismiss. Title VII prohibits the discrimination against any individual with respect to "the terms and conditions of employment because of such individual's race, color, religion, sex, or national origin. . . ." See also Wards Cove Packing Company, Inc. v. Atonio, 490 U.S. 642, 645, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989); Fernandez v. United States Postal Service, 804 F. Supp. 448, 450 (E.D.N.Y. 1992). A plaintiff alleging discriminatory treatment under Title VII bears the initial burden to show that he or she: (1) was a member of a protected class; (2) was qualified for a particular position; (3) was not hired for, or fired from, the position; and (4) the rejection or discharge occurred in circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991); Fernandez v. United States Postal Service, 804 F. Supp. 448, 451 (E.D.N.Y. 1992).
Construing the facts in the light most favorable to plaintiff, the complaint fails to make out a prima facie Title VII case. Although plaintiff has set out the facts of this case in meticulous detail, they do not support an inference that her termination from employment at the Transit Authority and NYCERS' denial of her applications for disability retirement were based on race, sex or national origin.
Plaintiff makes conclusory statements regarding defendants' "history of not only denial of opportunity, but, that of a general policy and practice of - once hired - managing to sabotage women and black men . . . as to force them to resign"; however, she does not describe with particularity any such policy or custom, or demonstrate that these allegations are related to the events which gave rise to this action. Accordingly, plaintiff's allegations are insufficient to withstand a motion to dismiss.
C. Age Discrimination
With respect to discrimination on the basis of age, ADEA provides that is unlawful "to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. . . ." 29 U.S.C. § 623(a). To establish a claim of age discrimination, a plaintiff must show that he or she (1) was between 40 and 70 years of age; (2) was qualified for a particular position; (3) was not hired for, or fired from, the position; and (4) the position was ultimately filled by a younger person. See, e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 1994 U.S.App. LEXIS 6645 at *12 (2d Cir. April 6, 1994); Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991); Conroy v. Anchor Savings Bank, FSB, 810 F. Supp. 42, 47 (E.D.N.Y. 1993). In this case, although plaintiff was within the protected age group at the time of her termination, she does not allege that she was qualified to continue her employment; rather, the facts show that plaintiff was fired pursuant to the Civil Service law because of her injury and resulting inability to work at her job. See, e.g., Robinson v. Transworld Airlines, Inc., 947 F.2d 40, 42 (2d Cir. 1991).
D. Disability Discrimination
Plaintiff also alleges that defendants discriminated against her on the basis of a disability or handicap. However, Title VII does not prohibit discrimination against individuals with disabilities. See, e.g., Prince v. Westchester County Department of Health, 1992 U.S. Dist. LEXIS 7717 at *10 (S.D.N.Y. May 27, 1992). Effective July 26, 1992, The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ["ADA"], prohibits discrimination against individuals with disabilities. However, the discriminatory actions alleged by plaintiff occurred prior to the effective date and are therefore not covered by ADA. Id. Finally, plaintiff cannot state a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination by federal employees on the basis of a handicap because none of the defendants qualify as programs receiving federal financial assistance. See, e.g., Bates v. Long Island Railroad, 997 F.2d 1028, 1035 (2d Cir.), cert. denied, 126 L. Ed. 2d 452, 114 S. Ct. 550 (1993); Hogarth v. Thornburgh, 833 F. Supp. 1077, 1084 (S.D.N.Y. 1993); Conlon v. City of Long Beach, 676 F. Supp. at (E.D.N.Y. 1987). Therefore, plaintiff's assertion that the Transit Authority should have accommodated her disability by transferring her to a suitable position fails to state a cause of action under federal law.
III. DUE PROCESS CLAIMS
Plaintiff's § 1983 claims also allege denial of procedural due process under the Fourteenth Amendment in connection with her termination and the denial of her retirement disability benefits. A municipal employee's entitlement to disability retirement is a constitutionally protected property interest for purposes of § 1983. Russell v. Dunston, 896 F.2d 664, 668-69 (2d Cir.), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990). Cf. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). However, the Supreme Court has held that due process will be satisfied if state law provides adequate post-deprivation procedures. Parratt v. Taylor, 451 U.S. 527, 538, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In this case, plaintiff challenged her termination in a proceeding under Article 78, the appropriate mechanism under New York law for challenging a decision by a state or local agency. See, e.g., Campo v. New York City Employees' Retirement System, 843 F.2d 96, 101 (2d Cir.), cert. denied, 488 U.S. 889, 102 L. Ed. 2d 211, 109 S. Ct. 220 (1988). Moreover, the Second Circuit has held that a state Article 78 proceeding is sufficient to provide constitutional due process for a municipal employee challenging a random procedural error in denial of retirement benefits. Id. at 102-03. Accordingly, plaintiff fails to state a due process claim under § 1983.
IV. RETALIATION CLAIMS
Plaintiff alleges that her termination and the denial of her disability retirement applications constitute impermissible retaliation for exercise of her First Amendment rights and for refusing to accept willingly defendants' discriminatory treatment. Plaintiff also claims that defendants retaliated against her for participating in proceedings relating to her Workers' Compensation, Social Security, and disability retirement benefits.
A. First Amendment
The First Amendment prohibits the discharge of a state employee for the exercise of constitutionally protected speech. Rankin v. McPherson, 483 U.S. 378, 383, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). The threshold question in determining whether an employee was wrongly discharged is whether she engaged in speech which may be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 140, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir.), cert. denied, 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993). When an employee speaks on matters of personal interest, however, a federal court need not review the propriety of subsequent employment action. Connick v. Myers, 461 U.S. at 147; White Plains Towing Corp. v. Patterson, 991 F.2d at 1058.
In Santiago v. Temple University, 739 F. Supp. 974 (E.D.Pa. 1990), aff'd, 928 F.2d 396 (3d Cir. 1991), the court held that a workers' compensation claim was not speech which addressed matters of public concern because filing such a claim "is a matter between an individual and his employer." 739 F. Supp. at 981. Similarly, plaintiff's efforts to obtain various disability and retirement benefits were private issues with the Transit Authority and NYCERS regarding personal matters, and therefore do not constitute issues of public concern for First Amendment purposes.
Moreover, plaintiff's charges of discriminatory employment practices were not raised until June 11, 1992, when she filed a complaint with the New York State Human Rights Commission. This filing took place after her termination and the denial of her disability retirement applications; therefore plaintiff cannot demonstrate a causal connection between the protected behavior and the allegedly retaliatory denial of her benefits. In addition, plaintiff's claim that defendants discriminated against her in retaliation for her "whistle-blowing" by exposing defendants' discriminatory practices is lacking factual support. Plaintiff does not describe with particularity any practice or custom of the defendants that discriminates against any protected class. Her conclusory allegations of discriminatory policies are therefore insufficient to state a claim for retaliatory discharge.
B. Title VII
In addition, Title VII prohibits retaliation against individuals who have opposed allegedly unlawful employment practices. 42 U.S.C. § 2000e-3(a). However, as noted above, plaintiff's Title VII claims are barred by her failure to exhaust administrative remedies by the timely filing of a discrimination complaint with the EEOC. Moreover, plaintiff has not established a prima facie retaliation claim, which consists of: (1) protected participation or opposition under Title VII known by the retaliator; (2) adverse employment action; and (3) a causal connection between the protected activity and the adverse action. See, e.g., DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied, 434 U.S. 965 (1987); Long v. AT&T Information Systems, Inc., 733 F. Supp. 188, 204 (S.D.N.Y. 1990). In this case, plaintiff does not allege that she engaged in protected activity under Title VII prior to the filing of this lawsuit. Plaintiff did not file charges with the EEOC or raise Title VII claims in her state court action. As noted above, plaintiff first raised discrimination claims before the Human Rights Commission in June 1992, after her termination and the denial of her disability retirement applications. Accordingly, she cannot make out a causal connection between any protected activity and adverse employment action.
IV. CONSPIRACY TO VIOLATE CIVIL RIGHTS
Plaintiff alleges that all of the defendants conspired to deprive her constitutional rights. 42 U.S.C. § 1985 prohibits such a conspiracy where the plaintiff demonstrates: (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; (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 Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Laverpool v. New York City Transit Authority, 760 F. Supp. 1046, 1055 (E.D.N.Y. 1991).
A complaint alleging a conspiracy to violate civil rights is held to heightened pleading standards. See, e.g., Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.) (per curiam), cert. denied, 464 U.S. 857, 78 L. Ed. 2d 158, 104 S. Ct. 177 (1983); Katz v. Morgenthau, 709 F. Supp. 1219, 1230-31 (S.D.N.Y.) (citing cases), aff'd in relevant part, 892 F.2d 20 (2d Cir. 1989) (per curiam). "To plead conspiracy, a complaint must allege specific facts suggesting that there was a mutual understanding among the conspirators to take actions directed toward an unconstitutional end." Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir. 1990) (per curiam).
Plaintiff's conclusory allegations in this case are insufficient to meet the heightened standards required to maintain a civil rights conspiracy claim. Although plaintiff has demonstrated inextricable bureaucratic confusion and delay in the handling of her case, the complaint allegations do not show a mutual understanding among the defendants to deprive her constitutional or statutory rights.
V. PENDENT STATE CLAIMS
In addition to her federal causes of action, plaintiff asserts a variety of state claims, including: employment discrimination under New York Human Rights and Executive Laws; breach of contract; breach of fiduciary duty; violation of the October 16, 1991 Stipulation and Order; defamation by Dr. Swearington in his medical reports of plaintiff's examination; and malpractice by attorney Carroll by entering into a settlement of plaintiff's Article 78 action without her consent. Since plaintiff's federal claims have been dismissed, this is not an appropriate case for the exercise of the court's pendent jurisdiction over state claims. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 1994 U.S. App. LEXIS 7240 at *20-21 (2d Cir. April 7, 1994); Fleischman v. Grinker, 769 F. Supp. 147, 152 (S.D.N.Y. 1991). Accordingly, plaintiff's state claims must be dismissed as well.
The facts of this case suggest that plaintiff has been damaged by the actions of some of the defendants. She was injured on the job in the course of her employment, and the Transit Authority subsequently terminated her on the ground that she was disabled from performing her job. Subsequently, a bureaucratic error led to plaintiff's premature termination, and NYCERS then denied her application for disability retirement on the ground that she was no longer a city employee. plaintiff was forced to hire an attorney and file an Article 78 proceeding in an effort to obtain retirement benefits. Three years after plaintiff's accident, the Transit Authority rescinded plaintiff's mistaken termination and NYCERS agreed to consider the merits of her disability applications. By that time, it appears that plaintiff's back injury had substantially improved, and NYCERS found that she was not permanently disabled. Plaintiff's applications for ordinary and accidental disability retirement were then denied.
Plaintiff is now 58 years old. She has been terminated from the job she performed satisfactorily for 16 years following an on-the-job injury, and yet she has been denied disability retirement benefits. However, despite the apparent inequity of her situation, plaintiff cannot turn her case into a discrimination action. Federal law simply does not provide redress for her injuries under these circumstances. Plaintiff's sole remedy lies in state court where she should examine the following possibilities (1) a second Article 78 proceeding challenging the May 27, 1992 denial of her benefit applications as arbitrary and capricious; (2) an action for breach of contract against NYCERS, see N.Y. Constitution article V, § 7 ("membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship n*")(Footnote omitted) . See also Campo v. New York City Employees' Retirement System, 843 F.2d at 103 n. 7; and (3) an equitable estoppel claim that the City of New York is estopped from finding plaintiff not to be disabled and refusing to pay benefits after terminating her employment on the basis that she was disabled.
For all of the foregoing reasons, defendants' motions to dismiss are GRANTED, and plaintiff's complaint is DISMISSED in its entirety.
Dated: Brooklyn, New York
May 6, 1994
John R. Bartels
United States District Judge