The opinion of the court was delivered by: CURTIN
Plaintiff Peter X. McCarthy was discharged from his position as Vice President for Administration at Erie Community College ("ECC") in the summer of 1994. On August 26, 1994, he brought this action under 42 U.S.C. § 1983, naming ECC and Louis J. Ricci, ECC's President, as defendants. Item 1. On October 5, 1994 he filed an amended complaint, adding as defendants five members of ECC's Board of Trustees, in their individual and official capacities. Item 3. According to its terms, the amended complaint alleged violations of the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983; Art. 1, § 6 of the New York State Constitution; and New York State common law. Item 3, P 10.
The defendants moved to dismiss. Item 6. In support of their motion they argued, inter alia, that the suit was "jurisdictionally defective" by reason of the plaintiff's failure to name either (1) ECC's Board of Trustees, or (2) Erie County, ECC's local sponsor, as defendants. They argued further that the plaintiff had not filed a Notice of Claim under New York General Municipal Law § 50-e, and so was precluded from proceeding against the County on one or more of the claims asserted.
Oral argument on the issue of the naming of proper institutional defendants was held on August 21, 1995. The court subsequently issued an order permitting the plaintiff to amend his complaint to name both the Board of Trustees and the County as defendants. Item 27. At the same time, the plaintiff's eleventh cause of action was dismissed. Id.
The plaintiff filed a second amended complaint. Item 29. Subsequently, the parties agreed that the defense of failure to file a Notice of Claim does not apply to the plaintiff's claims under federal law. Item 30, p. 1; Item 31, p. 1. In addition, the plaintiff requested leave to withdraw all of his state law claims. Item 31, pp. 1-2. The state law claims were dismissed, with prejudice, on November 20, 1995. Item 32. The Notice of Claim issue is therefore moot. Remaining are the plaintiff's federal constitutional claims that the defendants deprived him without due process of both a property and a liberty interest in his continued employment at ECC.
In support of their motion to dismiss, the defendants argued that the amended complaint failed to state a due process claim.
Items 6, 7, 24. The plaintiff submitted a brief in response. Item 17. Oral argument was held on December 15, 1995.
In his second amended complaint, the plaintiff alleges that he was hired by ECC in or about December 1990, to fill the position of Vice President for Administration. Item 29, P 15. At, or prior to the time he accepted the position, he received a copy of the 1988 edition of the Erie County Employee Handbook. Id., PP 16-17; Item 17, Ex. A. He asserts that as an ECC employee, he was "protected by and/or subject to the progressive discipline policy set forth in the [handbook]," and that "the 'normal steps' in this ... policy are 'oral warning, written warning, suspension from duty, and finally discharge.'" Item 29, P 16. He claims that he relied upon the terms of the handbook as a condition to accepting employment at ECC. Id., P 17. Both the defendants and the plaintiff have placed copies of the handbook in the record. Item 6, Ex. D; Item 17, Ex. A.
On or about June 27, 1994, the plaintiff was notified in writing by ECC's President, Louis J. Ricci, that Mr. Ricci had lost confidence in his "ability, judgment and professionalism to lead [his] department," and intended to recommend to the ECC Board of Trustees that he be terminated as of September 1, 1994. Item 29, PP 19, 23; Item 3, Ex. A, p. 3. The plaintiff claims that subsequently, in July 1994, his secretary was transferred, leaving him with no secretarial assistance; that on or about July 17, 1994, the defendants advertised the position of Vice President for Administration in the Buffalo News, seeking to replace him; and that in August 1994, they caused locks to be placed on the doors to his office, denying him access thereto. Item 29, PP 20-22.
President Ricci's June 27, 1994, memorandum to the plaintiff referred to several incidents and episodes of alleged incompetence, lack of effectiveness, and lack of professionalism as the basis for his decision. Item 29, P 23; see also, Item 3, Ex. A. The plaintiff maintains that the alleged occurrences "are untrue, misleading and/or taken out of context." Item 29, P 24. He claims further that, even if true, they "are encompassed within the progressive discipline policy of the Erie County Employee Handbook." Id., P 25.
The plaintiff states that while employed at ECC, he never received an oral or written warning, or a suspension from duty. Item 29, P 26. He claims that he has not been given a hearing with regard to the alleged incidents of incompetence and misconduct, or provided with an opportunity to present witnesses or testify on his own behalf. Id., PP 28-29.
1. Standard for Motion to Dismiss
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff. Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The court "should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992, cert. denied, 507 U.S. 961, , 113 S. Ct. 1387, 1412, 122 L. Ed. 2d 762 (1993)).
If, on a motion to dismiss for failure to state a claim, matters outside the complaint are presented to and not excluded by the court, the motion must be treated as one for summary judgment. Fed. R. Civ. P. 12(b); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). However, even on a Rule 12(b)(6) motion, the court may consider certain evidentiary materials. The complaint itself is deemed to include any document attached as an exhibit, and any document incorporated by reference. International Audiotext Network, Inc. v. American Telephone and Telegraph Co., 62 F.3d 69, 71-72 (2d Cir. 1995); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985). Further, the court may consider documents submitted by the moving party, without converting the motion to one for summary judgment, where "there [is] undisputed notice to plaintiff of ...