the City Counsel. See id. § 7384. 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.
Having concluded that the Veterans' Preference Act does not create a right that is enforceable through Section 1983, the Court can quickly dispose of the issue of whether the Act creates an implied cause of action. Under the analysis set forth in Cort v. Ash, the Court must determine whether Congress implicitly or explicitly intended to create such a private cause of action. See 422 U.S. at 78. As discussed above, the statute does no more than require that the Secretary of Veterans Affairs coordinate existing programs. Nowhere in the provisions of the Act does Congress create any rights or impose any specific obligations on the States. Where the statute by its terms grants no private rights and proscribes no conduct, the analysis into whether to imply a private cause of action ends. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). Thus, plaintiff can neither state a cause of action directly under the Veterans' Preference Act nor indirectly through Section 1983.
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).
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 congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. at 20; see also Brace v. Ohio State University, C2-94-291, 1994 WL 577709, at *4 (S.D. Ohio Oct. 21, 1994) (no private right of action under Section 4212 or indirectly through Section 1983).
Because plaintiff has no direct cause of action either under 38 U.S.C. § 523 or under 38 U.S.C. § 4212, and because neither of these provisions can be enforced through 42 U.S.C. § 1983, this Court dismisses with prejudice plaintiff's federal law cause of action based on defendants' failure to give preference to plaintiff's veteran status.
STATE VETERAN STATUS CLAIM
Plaintiff's pendent state law claim for failure to give him preference as a military veteran must also fail because the New York State statute only provides for preferential treatment to veterans who take competitive examinations for civil service positions. New York State Civil Service Law Section 85 provides that:
On all eligible lists resulting from competitive examinations, the names of eligibles shall be entered in the order of their respective final earned ratings on examination, with the name of the eligible with the highest final earned rating at the head of such list, provided, however, that for the purpose of determining final earned ratings, . . .