capacity. The Court finds, that these events were sufficient to alert the plaintiffs to their injuries or possible damages. As a result, their causes of action accrued on September 9, 1987, even if this case was not treated as one for employment discrimination.
B. Fraudulent concealment and equitable tolling
The plaintiffs' second argument is that the Court improperly declined to apply the doctrines of equitable tolling and fraudulent concealment to toll the statute of limitations. As stated above, these doctrines toll the statute of limitations until the plaintiff discovers, or with the exercise of reasonable diligence should have discovered, the underlying cause of action. However, to "take advantage of the equitable tolling doctrine based on fraudulent concealment, 'a plaintiff must submit non-conclusory evidence of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms that he suffered.'" Eisert at *6, 1996 U.S. Dist. LEXIS 1298, *17, citing, Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (emphasis in original). Applying these standards the Court held that the relevant statutes of limitations were not tolled in this case.
The plaintiffs' now move the Court to reconsider this holding on two grounds. First, Eisert contends that she did take the necessary affirmative action when she called Lauria's office to find out whether she had been awarded the job. During a conversation with Lauria's secretary, Eisert was advised that the first and second highest scorers had declined offers and as a result, Parisi, the fifth highest scorer was appointed. Eisert alleges that this statement was a misrepresentation of fact because neither Yuter nor Myles was ever offered the job, and that she relied upon this misrepresentation because she was lulled into believing that her rights had not been violated. As a result, she did not bring her lawsuit until five years after these events occurred. Therefore, the statutes of limitations should have been tolled with respect to her claims. Upon reconsideration, the Court agrees.
As the Second Circuit recognized in State of New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.), cert. denied, 488 U.S. 848, 102 L. Ed. 2d 101, 109 S. Ct. 128 (1988), over a century ago, the Supreme Court stated that the purpose of the fraudulent concealment doctrine is to prevent defendants from concealing a fraud, or committing a fraud in a manner such that the fraud concealed itself, until such time as the party committing the fraud could plead the statute of limitations as an affirmative defense. Id. at 1083, citing, Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349, 22 L. Ed. 636 (1874). The essence of the doctrines are that the statute of limitations does not run against a plaintiff who is unaware of her cause of action where her employer's, or in this case potential employer's, misleading conduct is responsible for the employee's unawareness of her claims. Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 60 (2d Cir. 1986) (addressing the doctrine of equitable tolling).
In recognition of these policies underlying the doctrines of fraudulent concealment and equitable tolling, the Court now vacates its earlier decision in this regard with respect to Eisert. As stated above, Eisert alleges that when she called to inquire about the status of her application, Lauria's secretary misrepresented that Parisi was hired only after Yuter and Myles declined offers consistent with the rule of three under Civil Service Law § 61. As a result, Eisert was led to believe that the hiring of Parisi was lawful. It was not until much later that Eisert discovered that Yuter and Myles were never offered the position, and that her rights were abridged. Upon reconsideration of these allegations, the Court finds that these allegations are sufficient to toll the statutes of limitations with respect to Eisert's claims, at least sufficient to present the facts to the jury.
In reaching this conclusion, the Court recognizes that Eisert has admitted that she was questioned regarding her political affiliation during her interview for the job, and that Lauria originally offered her the job but than later changed his mind without explanation. However, upon reconsideration, the Court finds that these admissions are better applied to the factual issue and Eisert's credibility with respect to her knowledge and her claims rather than to preclude her from asserting those claims altogether as a matter of law.
Second, both Eisert and Myles move the Court to reconsider arguing that the Court misapplied the rule of Pinaud set forth above, and requiring an affirmative showing that "the plaintiffs actually attempted to discover the alleged wrongdoing, and that their efforts were somehow thwarted by the defendants' fraudulent conduct." Eisert at *6, 1996 U.S. Dist. LEXIS 1298, *18. The plaintiffs dispute this standard because it fails to account for situations in which the plaintiffs are completely unaware of any wrongdoing. In support of their position, the plaintiffs cite Rodriguez, a decision they believe was "wrongly decided," in which the district court stated that the doctrine of fraudulent concealment requires a showing:
(1) that defendants concealed the existence of the cause of action from the plaintiff, (2) that plaintiff remained in ignorance until . . . three years (§§ 1981-1983), or four years (RICO) prior to the filing of the complaint, and (3) that plaintiff's ignorance was not attributable to a lack of diligence on the plaintiff's part.
Rodriguez, at *9. The Rodriguez court further elaborated on this standard by explaining that certain wrongful acts may be committed in such a manner as to conceal them or may by their nature be self concealing. Id. While the Court agrees with the standards regarding "self concealing" acts, the Court did not address them in its earlier decision because they are inapplicable in this case.
As stated above, Eisert admits that during her interview her political affiliation was questioned. Subsequently, the position at issue was given to a Republican Committeeman who already held the job in a provisional capacity. Moreover, the plaintiff admits that Lauria originally offered her the position but then changed his mind without explanation. These facts are sufficient to support a finding that the alleged constitutional violations were not self concealing in nature. Accordingly, Eisert's motion for reconsideration of the Court's earlier decision on this ground is denied.
Unlike Eisert, no affirmative misrepresentations were made to Myles. In addition, the Court concludes that the events at issue are insufficient to invoke the doctrine of fraudulent concealment with respect to his claims. As the Myles supporting affidavit and deposition testimony indicate, he was not selected for the job and he knew that Parisi was. He made no effort to find out why. He then filed a lawsuit over five years later based on a newspaper article he read. If the Court applied the doctrines of fraudulent concealment and equitable tolling to his claims, the door would be opened to litigation based on stale claims turning on plaintiffs' willful ignorance. The Court is unwilling to start a descent down that slippery slope. Accordingly, the plaintiffs' motion for reconsideration on this ground is denied with respect to Myles and all of his claims remain time barred except his claim for fraud.
As a result of these decisions, the Court will refer to the remaining claims, with the exception of the fraud claim, as belonging only to Eisert.
III. The substantive claims
The Court's decision to vacate its earlier decision with regard to Eisert's claims does not end the inquiry. Having made this determination, the Court must now consider the defendants' previous substantive arguments made in their original motions for summary judgment, but not previously addressed. Each cause of action will be addressed separately.
A. The summary judgment standard
A court may grant summary judgment "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact," Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352 (2d Cir. 1994) (quoting Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990)), and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Institute for Shipboard Education v. Cigna Worldwide Ins. Co., 22 F.3d 414, 418 (2d Cir. 1994); Twin Laboratories, Inc. v. Weider Health & Fitness Corp., 900 F.2d 566, 568 (2d Cir. 1990).
Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)); National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see also Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Lane v. New York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir. 1994); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Western World, 922 F.2d at 121. Although the non-moving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment, Fed. R. Civ. P. 56(c) and (e) provide that the non-moving party cannot rest on the pleadings but must set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions on file showing there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); United States v. Rem, 38 F.3d 634 (2d Cir. 1994).
Finally, when determining a motion for summary judgment, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994); Eye Assocs. v. IncomRx Sys. Ltd. Partnership, 912 F.2d 23, 27 (2d Cir. 1990).
B. First Amendment political association
Eisert contends that her First Amendment rights to political association were violated by the defendants as a result of the political patronage and manipulation of civil service which resulted in the appointment of Gary Parisi to the position of Assistant to the Commissioner of purchasing instead of her. The defendants contend that this claim should be dismissed for two reasons. First, "since all the . . . plaintiffs' are registered Republicans, plaintiffs are unable to contend that the Town discriminated against them due to their non-affiliation with or lack of support for the 'in-power' political party." Second, the existence of legitimate non political reasons justifying the decision to hire Parisi are sufficient to preclude Eisert's claims. The Court rejects both of these contentions in turn.
1. The party registration contention
The defendants rely on Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990) for the proposition that because all parties involved in this lawsuit are registered Republicans, there can be no First Amendment violation. The defendants misread Rutan.
In Rutan, the Supreme Court expanded upon its earlier decisions in Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) and Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), to conclude that "under . . . sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so." Rutan, 497 U.S. at 78. There is nothing in the Court's holding that implies that the relevant inquiry is limited only to party registration. Indeed the Court need look no further than the Rutan decision itself to reject the defendants' contentions in that regard. In that case, the Supreme Court, in reaching its decision, considered not only the plaintiffs' registration, but also "whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels." Id. at 66. As a result, the Court finds that the First Amendment protects applicants not only for positions in their opposing parties' administrations, but also those who suffer adverse employment decisions because, while they may be a member of the party in power, they lack political clout, or are at odds with someone in a position of authority.
In this case, Eisert has implicated similar interests. She contends that, although she may have been a registered Republican, she was denied civil service employment because someone with lesser qualifications was unlawfully given the job based on his political ties, namely his position as a Republican Committeeman, and his role in local politics. Consistent with the rules set forth above, the Court finds that these allegations create an issue of fact as to whether Eisert's first amendment rights were abridged and denies the defendants' motions for summary judgment on this cause of action.
2. Non political reasons for selecting Parisi
The defendants' second argument is that Eisert's claims should be dismissed because there were adequate non political reasons for the decision to hire Parisi. In support of this position, the defendants cite Dusanenko v. Maloney, 726 F.2d 82 (2d Cir. 1984). However, Dusanenko does not stand for the proposition cited. In Dusanenko, the Second Circuit merely held that where the defendants move for summary judgment and file Rule 3(g) statements pursuant to the Local Rule 3(g) of the Joint Rules for United States District Courts for the Southern and Eastern Districts of New York, and the plaintiffs do not file opposing 3(g) statements or offer any other contradictory evidence in the form of affidavits, the district courts are free to take the allegations contained in the defendants' 3(g) statement as true when ruling on a motion for summary judgment.
The defendants also cite DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986), cert. denied, 484 U.S. 825, 98 L. Ed. 2d 50, 108 S. Ct. 89 (1987) for the proposition that a finding of discrimination cannot be grounded on an employment decision based on friendship, as the defendants apparently contend was the basis for Lauria's decision to hire Parisi. However, DeCintio involved Title VII and Equal Pay Act claims where the Court rejected discrimination claims based on the allegation that a woman was hired because her boy friend was in charge of the appointment. In this case, Eisert contends that she was not hired because of political patronage and unlawful manipulation of the civil service laws, not because of some personal relationship between Lauria and Parisi. Accordingly, the argument in this regard raises a question of triable fact sufficient to defeat summary judgment.
C. The RICO claims
The defendants further move for summary judgment on the plaintiffs RICO claims. As a preliminary matter, the Court notes that the Town defendants and the Committee defendants present different arguments in support of their respective motions.
1. The Town defendants
In their original motion papers, the plaintiffs agreed to withdraw the RICO claims against the Town defendants based on this Court's earlier holdings in Nu-Life Constr. Corp. v. Board of Educ., 779 F. Supp. 248, 251 (E.D.N.Y. 1991) and Rini v. Zwirn, 886 F. Supp. 270, 294 (E.D.N.Y. 1995) (recognizing that a municipality can not be held liable under the Civil RICO statute because the required intent cannot be imputed from the municipal agents to the municipality). Accordingly, this issue requires no further discussion.
2. The Committee defendants
The Committee defendants contend that they are entitled to summary judgment on the plaintiff's RICO claims because Eisert has failed to allege sufficient facts to support her contentions. The threshold pleading requirements of a private action under § 1962 of RICO were set forth in Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir. 1983), cert. denied sub nom. Moss v. Newman, 465 U.S. 1025, 79 L. Ed. 2d 684, 104 S. Ct. 1280 (1984), as follows:
To state a claim for damages under RICO a plaintiff has two pleading burdens. First, he must allege that the defendant has violated the substantive RICO statute, 18 U.S.C. § 1962 (1976), commonly known as 'criminal RICO.' In so doing, he must allege the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more acts (3) constituting a pattern' (4) of 'racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce. . . . Plaintiff must allege adequately defendant's violation of section 1962 before turning to the second burden--i.e., invoking RICO's civil remedies of treble damages, attorneys fees and costs. . . . To satisfy this latter burden, plaintiff must allege that he was 'injured in his business or property by reason of a violation of section 1962'" ( id. at p. 17. [citations omitted]).
The Committee defendants contend that the plaintiff is unable to establish the required elements necessary to prove a civil RICO claim. Specifically, the Committee defendants argue that Eisert is unable to demonstrate two or more predicate acts which constitute a pattern of racketeering activity or the existence of a RICO enterprise.
(i) A pattern of racketeering activity
A "pattern of racketeering" is at least two acts of "racketeering activity, occurring within 10 years of each other." 18 U.S.C. § 1961(5). Although "proof of at least two acts of racketeering is necessary," without more, such proof "is not sufficient . . . under RICO." United States v. Alkins, 925 F.2d 541 (2d Cir. 1991).
In H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), the Supreme Court followed its famous footnote 14 in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985), and held that in order to constitute a "pattern" under the statute, the "racketeering activity" must be "related" and have some sort of "continuity." Id. at 2900; see also United States v. Alkins, supra, at 1746 ("the law of this circuit is that the acts that constitute the pattern of racketeering activity must be related and continuous or pose the threat of continuity").
A. Racketeering Activity
Racketeering activity is defined under RICO to include bribery as defined under state law, see 18 U.S.C. 1961(1)(A) and mail fraud. See 18 U.S.C. § 1961(1)(B) According to New York Penal Law §§ 200.45 and 200.50 it is unlawful to give a bribe for public office or for a public officer to receive a bribe.
With respect to mail fraud, the Second Circuit has required that:
a defendant must have used the mail as a means to obtain 'money or property by means of false or fraudulent pretenses, representations, or promises' or for purposes of executing a scheme to defraud. A showing of intentional fraud, Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 49 (2d Cir. 1987), cert. denied, 484 U.S. 1005, 98 L. Ed. 2d 650, 108 S. Ct. 698 (1988), or 'reckless indifference to the truth' is necessary to satisfy 'the requisite knowledge and criminal intent' element of mail fraud. United States v. Sheiner, 273 F. Supp. 977, 983 (S.D.N.Y. 1967), aff'd, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 24 L. Ed. 2d 76, 90 S. Ct. 68 (1969). Acts done inadvertently, mistakenly, or in good faith without an intent to defraud do not satisfy the requirements of the statute (citation omitted) O'Malley v. New York City Transit Authority, 896 F.2d 704 (2d Cir. 1990).
The elements of mail fraud are (1) a scheme to defraud and (2) use of the mails to further that scheme. See McLaughlin v. Anderson, 962 F.2d 187, 190-91 (2d Cir. 1992); Nathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 997 (E.D.N.Y. 1995), citing, United States v. Lemire, 232 U.S. App. D.C. 100, 720 F.2d 1327, 1334-35 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226, 81 L. Ed. 2d 874, 104 S. Ct. 2678 (1984).
Allegations of mail fraud must be made with the particularity required by Fed. R. Civ. P. 9(b). Rule 9(b) requires that "all averments of fraud . . . shall be stated with particularity [while] malice, intent, knowledge, and other condition of mind . . . may be averred generally." Pursuant to this higher pleading standard, the plaintiff must adequately specify the statements the claims were false or misleading, give particulars as to the respect in which plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." McLaughlin, 962 F.2d at 191; see also Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). Specifically, the plaintiff "must set forth the contents of the [misrepresentations] and specify how each of the items was false and misleading." Official Publications, Inc. v. Kable News Co., Inc., 692 F. Supp. 239, 245 (S.D.N.Y. 1988), aff'd in part, rev'd in part, 884 F.2d 664 (2d Cir. 1989).
Applying these standards, the Court finds that the plaintiffs have stated sufficient predicate acts to support a civil RICO claim. First, the plaintiffs allege that the defendants bribed John Meehan so that he would decline the position as Assistant to Commissioner of purchasing, and Parisi could be considered. Second, the plaintiff alleges in her memorandum of law that the following three letters were sent through the mails in furtherance of the fraudulent scheme:
1. Letter dated July 1, 1987 from Sidney Rosenthal, the Executive Director of the defendant Civil Service Commission informing Eisert that she was qualified for the position of Assistant to the Commissioner of Purchasing;