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RIBANDO v. SILHOUETTE OPTICAL

December 21, 1994

JOSEPH RIBANDO, Plaintiff, against SILHOUETTE OPTICAL, LTD. and PIERRE FAY, Individually and as President of SILHOUETTE OPTICAL, LTD., Defendants.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This diversity of citizenship suit was originally brought by plaintiff, an executive of the defendant Silhouette Optical Ltd., on the ground that his employer improperly fired him for accepting an elective position as mayor of a locality in New York.

 Defendants have moved to dismiss the now-pending second amended complaint, which adds allegations of violations of New York's Human Rights Law (Executive Law 298-a), its whistleblower law (Labor Law 740), New York Election Law article 17, and the New York and federal Constitutions.

 Defendants' motion to dismiss is granted with respect to the New York Labor Law 740, which is limited to matters involving health or safety hazards, New York Election Law article 17 which provides no private right of action, the New York and Federal Constitutions, which contain no pertinent self-executing provisions, and abusive discharge based upon his election to and acceptance of public office, discussed in part III below.

 No violations of the first three sources of law are adequately alleged; plaintiff has abandoned these claims in his memorandum of law, which focuses exclusively on whether the facts of the case are adequately connected with New York, plaintiff's Human Rights Law claim and a claim for abusive discharge on account of his election to and acceptance of public office.

 The abusive discharge claim cannot survive for the reasons set forth below; I convert defendants' motion with respect to the Human Rights Law claim into a motion for summary judgment under Fed.R.Civ.P. 56 and reserve decision on the motion as to that claim.

 II

 With respect to plaintiff's surviving claims, defendants' motion is converted into a motion for summary judgment under Fed.R.Civ.P. 12(b)(6) and 56. Pursuant to Celotex v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), each party is requested to submit within thirty (30) days of the date of this memorandum order sufficient information to establish the existence of a genuine issue of material fact with respect to the plaintiff's surviving claims and defenses to them. See Jacobson v. Cohen, 151 F.R.D. 526 (SDNY 1993).

 III

 Our Federal and State Constitutions do not in general operate directly on individuals except when improperly exercising public sector authority, although federal as well as state laws enacted under applicable constitutional provisions do operate directly upon individuals. Instead, our constitutional structures establish machinery for the respective governments, authorize their functions, and impose limitations upon the scope of those functions and means for their implementation.

 The right to participate in government is critical to our Republic and is protected by the First and Fourteenth Amendment. See Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964); United States v. Carolene Products Co, 304 U.S. 144, 152-53 n 4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938). This protection applies to governmental entities directly by virtue of the Constitution; statutory provisions provide further protection against either governmental or individual misconduct contrary to such protection. At least explicitly, these statutory protections apply to voting rather than seeking or accepting public office. See Voting Rights Act of 1965, 42 USC 1973; Civil Rights Act of 1957, 42 USC 1971; Civil Rights Enforcement Act of 1871, 42 USC 1985; Federal Criminal Code (Title 18 USC) 241; see Note, "Private Economic Coercion and the Civil Rights Act of 1957," 71 Yale LJ 537 (1962).


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