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PHILIPPEAUX v. NORTH CENT. BRONX HOSP.

December 19, 1994

EDDY JEAN PHILIPPEAUX, Plaintiff, against NORTH CENTRAL BRONX HOSPITAL, NEW YORK CITY HEALTH & HOSPITAL CORPORATION, and THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:

 Plaintiff Eddy Jean Philippeaux brings this action in response to North Central Bronx Hospital's ("Bronx Hospital") failure to hire him as a Senior Storekeeper. In his complaint and amended complaint, plaintiff alleges that, in failing to hire him, Bronx Hospital discriminated against him based on his race, national origin and age, and failed to give him preference as a veteran of the armed forces in violation of state and federal law. As a result of this alleged discrimination, plaintiff seeks recovery in the form of "back pay, hiring, promotion, compensatory and punitive damages." Plaintiff also sues the New York City Health and Hospital Corporation ("HHC"), and The City of New York ("The City"). The specific causes of action asserted include claims under Title VII, 42 U. S.C. § 2000e-5; the Age Discrimination in Employment Act (ADEA), 42 U.S.C. § 631 (a); the Veterans' Preference Act of 1944, 38 U.S.C. § 523; 42 U.S.C. §§ 1981, 1983, and 1985; and New York Civil Service Law § 85. In response, defendants have filed a motion to dismiss the complaint in its entirety, or in the alternative to grant summary judgment in defendants' favor. Plaintiff has filed a cross-motion for summary judgment. *fn1" For the reasons set out below, this Court denies plaintiff's motion for summary judgment and grants in part defendants' motion to dismiss.

 STANDARDS FOR DISMISSAL AND SUMMARY JUDGMENT

 The Court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only when plaintiff "can prove no set of facts in support of [his] claim that would entitle [him] to relief." Christ Gatzonis Electrical Contractor, Inc. v. New York City School Construction Authority, 23 F.3d 636, 639 (2d Cir. 1994). In reviewing a motion to dismiss, the Court must accept as true all allegations in the complaint. Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). The Court need not, however, accept as true "naked assertions" without supporting facts. Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (quoting Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) (per curiam)). Only if, assuming all facts as true, plaintiff still fails to plead the basic elements of a cause of action can the Court dismiss the claim.

 Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mafler of law." Rule 56(c), Fed.R.Civ.P. In making this judgment, the burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In addition, when determining whether to grant summary judgment in discrimination cases in which intent is an issue, the court must exercise extra caution. Gallo v. Prudential Residential Services L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). This extra caution is further warranted in cases such as this one in which there has been only limited document discovery. Finally, this Court must construe a pro se complaint more liberally and apply a more flexible standard in determining whether the plaintiff has stated a cause of action. See Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991). Thus, in determining whether to grant summary judgment, this Court must (i) determine whether a factual dispute exists, and (ii) determine, based on the substantive law at issue, whether the fact in dispute is material.

 The statement of facts set forth below is derived primarily from plaintiff's pleadings, the exhibits attached to his complaint, and his affidavit in opposition to the motion to dismiss. Facts asserted by the defendants are so noted. Although it appears that plaintiff may have dropped some of his original causes of action upon filing an amended complaint, the motion to dismiss is addressed to all of plaintiff's causes of action. Therefore, the Court will review all claims asserted in both the complaint and in the amended complaint.

 BACKGROUND

 HHC is a "public benefit corporation" created by the State of New York to take control of hospitals formerly under the control of The City. See New York Unconsolidated Laws §§ 7381-406. HHC is controlled by a Board of Directors who are for the most part appointed by the Mayor and the City Counsel. See id. § 7384[1]. Bronx Hospital is one of several hospitals under the control of HHC. Bronx Hospital is not, however, a legal entity independent of HHC.

 In December 1991, Bronx Hospital placed an advertisement in "The Chief," a newspaper that advertises government jobs, giving notice that it had an opening for a Senior Storekeeper. A Senior Storekeeper supervises the receipt of all Bronx Hospital commodities and supplies. Plaintiff responded to the advertisement by sending to Bronx Hospital a resume and supporting documents including plaintiff's military record. Bronx Hospital called plaintiff in for an interview, and in early January 1992, Mr. Paul Brodsky, the Material Supervisor at Bronx Hospital, interviewed plaintiff. Ms. Rosalie Galan, the Materials Manager at Bronx Hospital, interviewed plaintiff on January 23, 1992, at which time plaintiff submitted an employment application.

 Bronx Hospital did not offer the position to plaintiff, but re-opened the hiring process, which was originally limited to those who applied by December 16, 1991. On February 13, 1992, Pablo Arroyo, a Food Service Supervisor at Bronx Hospital applied for the position. Mr. Arroyo was interviewed on about February 26, 1992, and was hired on March 4, 1992. Mr. Arroyo is Hispanic and was 34 years old in 1992. On June 1, 1992, plaintiff was informed by Bronx Hospital that they had hired Mr. Arroyo. Plaintiff was 39 years old at that time. Plaintiff filed a claim with the EEOC on August 18, 1992 alleging that Bronx Hospital discriminated against him on the basis of his national origin and race, which he identified as Haitian and Black, respectively. On March 4, 1994, plaintiff received a right to sue letter from the EEOC, and brought this action on April 4, 1994.

 To support his allegations of discrimination, plaintiff points to three areas: the difference in qualifications of plaintiff and Mr. Arroyo, the respective races of the persons involved, and the alleged irregularities in the hiring process.

 Plaintiff's application to Bronx Hospital lays out, in depth, his qualifications for the Senior Storekeeper position. Plaintiff held a New York State high school equivalency diploma and had credits from two college level programs. From 1972 to 1980, plaintiff worked as a Senior Storekeeper at various Navy bases and aboard various Navy vessels. From 1980 to at least 1983 plaintiff worked as a medical material specialist both at Andrews Air Force Base on a part-time basis and at D.C. General Hospital on a full time basis. From 1983 to 1990, plaintiff worked for the Air Force primarily in aircraft maintenance. Plaintiff does not indicate any further employment after 1990 other than some part-time work for the Metropolitan Museum of Art during the holiday season in 1991. In addition, plaintiff provided certificates of completion from Navy "Storekeeper Class 'A'" training and Air Force "Medical Material Specialist" training, and stated that he attended Electronics and Computer School in Mississippi. In contrast, plaintiff points to Mr. Arroyo's experience as a Food Service Supervisor at Bronx Hospital starting in 1986, and at St. Joseph's Hospital for five years prior to that. Mr. Arroyo's employment application, which plaintiff attached as an exhibit to the complaint, also reflects that he graduated from the Bronx High School of Science and has a B.B.A. degree in computer information systems from Baruch College.

 To further support his claim of discrimination, plaintiff points to the race and national origin of the various individuals involved in the hiring process. Plaintiff, who is Black and Haitian, notes that Ms. Galan is Hispanic, Mr. Brodsky is Caucasian, and Mr. Arroyo, the successful candidate, is Hispanic. Plaintiff asserts that Ms. Galan felt she "[could not] select an individual who was not of Hispanic origin."

 As the third basis for supporting his claim of discrimination, plaintiff points to irregularities in the hiring process. Plaintiff complains that in both interviews he was given little attention. Mr. Brodsky, according to plaintiff, spent most of the first interview on the telephone and would only ask "intermittent questions between the time he would make another call." Plaintiff's second interview allegedly "lasted no more than five minutes." In addition to the brief interviews, plaintiff points to Bronx Hospital's re-opening the hiring process after the December 16, 1991 cutoff for accepting applications. According to plaintiff, this was done "in violation of the Civil Rights Act of 1964."

 AGE DISCRIMINATION CLAIM

 In plaintiff's original complaint, he alleges that Bronx Hospital discriminated against him based on his age. Section 631(a) of the ADEA provides that "the prohibitions in this chapter shall be limited to individuals who are at least 40 years of age." 42 U.S.C. § 631(a); see also Petrelli v. City of Mount Vernon, 9 F.3d 250, 253 (2d Cir. 1993). Plaintiff, who was 39 years old at the time of the alleged discriminatory actions by Bronx Hospital, is therefore unable to invoke the protections of the ADEA, and his claim of age discrimination is dismissed with prejudice.

 FEDERAL VETERAN STATES CLAIM

 Plaintiff places significant emphasis on his status as a Vietnam era veteran, and asserts that in choosing not to hire him Bronx Hospital disregarded his veteran's status in violation of Section 523 of the Veterans' Preference Act of 1944. This provision provides that

 
the Secretary [of Veterans Affairs] shall seek to achieve the effective coordination of the provision . . . of benefits and services . . . with appropriate programs . . . conducted by State and local government agencies and private entities at the State and local level.

 38 U.S.C. § 523. When seeking to recover for an alleged violation of a federal statute, there are three possible bases for the cause of action: the statute may provide for an express cause of action such as in Title VII, the statute may create a right that can be enforced through an action under 42 U.S.C. § 1983, see Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), or the statute may allow for an implied cause of action, see Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975). There is no dispute that the Veterans' Preference Act does not provide any express cause of action. Therefore, in order for plaintiff to recover for any violation of this statute, the Court must find that the Act creates a right that is enforceable through Section 1983 or creates an implied cause of action. See Suter v. Artist M., 503 U.S. 347, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992).

 A violation of federal law does not per se lead to a cause of action under Section 1983. Instead, the statute must meet two conditions. First, the statute must "create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987); see also Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 19, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981). Second, the statute must not evidence a congressional "intent to foreclose resort to § 1983 . . . [by providing] a scheme that itself provided for private actions and left no room for additional private remedies under § 1983." Wright v. Roanoke, 479 U.S. at 423; see also Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981).

 For the Court to find that a statute creates a right, privilege or immunity enforceable under Section 1983, the statute must create specific rights or regulations that provide notice to the States of the duties Congress is imposing on them. See Suter v. Artist M., 112 S. Ct. at 1369 (statute requiring that States make "reasonable efforts" to prevent a child from being removed from his home is not sufficiently specific to create a right enforceable under Section 1983). The provision in the Veterans' Preference Act cited by plaintiff, 38 U.S.C. § 523, is directed at the Secretary of Veterans Affairs, and requires coordination of existing programs. The Act requires that the Secretary assist states in rehabilitation efforts, conduct studies, coordinate and promote programs, publish existing laws, evaluate and collect data, and report to Congress. See 38 U.S.C. §§ 521-29. Because the Act fails to impose any duty on the States, much less a duty set forth in specific regulations, a violation of the Act cannot form the basis of a Section 1983 claim.

 There is one federal law that requires certain employers to give special consideration to Vietnam era veterans in making employment decisions. Section 4212 of Title 38, United States Code, provides that companies entering into contracts to supply the government with $ 10,000 or more in personal property or services "shall take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era." 38 U.S.C. § 4212(a) (formerly 38 U.S.C. § 2012(a)). It is not clear, however, that this provision would apply to Bronx Hospital.

 Even if the provision does apply to Bronx Hospital, the claim cannot be asserted in this forum. Section 4212(b) sets forth an administrative review scheme through the Secretary of Labor. Because Congress has provided for an administrative review procedure, even if plaintiff could ultimately bring a claim under Section 4212, he must first seek administrative relief. See Harris v. Adams, 873 F.2d 929, 932 (6th Cir. 1989) (no private right of action under the Act based on provision for administrative complaint review by the Secretary of Labor); Barron v. Nightingale Roofing, Inc., 842 F.2d 20, 22 (1st Cir. 1988) (only the Secretary of Labor may enforce the Act, thereby precluding veterans from bringing private actions); Aleszczyk v. Xerox Corp., No. CIV. 89-679 L, 1990 WL 251849, at *7 (W.D.N.Y. Feb. 14, 1990) (even if there is a private right of action, it must occur after administrative review), rev'd on other grounds sub nom. Tolliver v. Xerox, 918 F.2d 1052 (2d Cir. 1990), cert. denied, 499 U.S. 983, 113 L. Ed. 2d 736, 111 S. Ct. 1641 (1991). *fn2" This administrative review also precludes plaintiff from bringing a claim under Section 1983. Where "remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate ...


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