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WALSH v. CITY OF AUBURN

October 15, 1996

WILLIAM M. WALSH, Plaintiff,
v.
THE CITY OF AUBURN, MAYOR GUY COSENTINO, COUNCILLOR ANN BUNKER, COUNCILLOR JAMES HUTCHINSON, CITY MANAGER JAMES MALONE, CORPORATION COUNSEL ANDREW LALONDE, SOLID WASTE DIRECTOR ROBERT BECKER, MARK FANDRICH, EX-COUNCILLOR, GENERAL COUNSEL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, GENERAL COUNSEL, UNITED STATES EQUAL EMPLOYMENT OPORTUNITY COMMISSION, AUBURN, NEW YORK CIVIL SERVICE COMMISSION, Defendants.



The opinion of the court was delivered by: POOLER

 INTRODUCTION

 Plaintiff William W. Walsh, former recycling administrator for the City of Auburn ("Auburn"), commenced this civil rights action on May 5, 1995. Walsh claims that Auburn and various of its public officials discriminated against him because of his age and that certain officials also denied him a right to free speech in violation of the First Amendment. Walsh also sued other defendants including the General Counsel for the New York State Division of Human Rights ("DHR") and the Auburn Civil Service Commission. Walsh makes his age discrimination claim pursuant to the Age Discrimination in Employment Act ("ADEA"). Although Walsh does not identify a statutory basis for his First Amendment claim, 42 U.S.C. § 1983 governs this claim.

 All of the defendants moved for dismissal pursuant to Fed. R. Civ. P. 12. I grant the Auburn Civil Service Commission's motion on stipulation. I grant DHR's motion because (1) DHR has sovereign immunity, (2) DHR is not Walsh's employer for ADEA purposes, and, (3) Walsh does not claim that DHR interfered with his right to free speech. I also dismiss Walsh's ADEA claims against the remaining individual defendants because those individuals are not subject to suit under the ADEA. I reject the argument made by certain defendants that the doctrine of res judicata bars Walsh's ADEA claims in their entirety as well as the contention that Walsh failed to state a claim under the ADEA. Walsh's First Amendment claim against the City of Auburn also survives this dismissal motion. However, qualified immunity bars his First Amendment damages claim against the individual defendants.

 BACKGROUND

 I. Allegations of the Complaint

 As I must on a Rule 12(b)(6) motion, I accept the allegations of the complaint as true. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) cert denied, 503 U.S. 960 (1992). Walsh, who in May 1995 was sixty-five years old, began work as Auburn's recycling administrator on September 7, 1989. Compl. PP 1, 7-A(A)(7). On May 7, 1992, City Manager James Malone told Walsh that his job would be eliminated. Compl. P 7-A(B)(1). Walsh asked if any other jobs would be available, and Malone responded negatively. Id. Walsh left the City's employment on June 30, 1992. Id. P 1. After eliminating Walsh's job, Malone created certain new positions including solid waste director, assistant solid waste director, weigh master, and motor equipment operator. Id. P 7-A(A)(1). The employees hired for these jobs are all younger than Walsh, and the solid waste director, assistant solid waste director, and motor equipment operator perform significant portions of Walsh's former job. Id. P 7-A(A)(2),(5). Walsh alleges that age discrimination and retaliation for a successful protest of an earlier attempt by defendants to eliminate his job motivated both his firing and Malone's failure to hire him for one of the new jobs. Id. P 7-A(F)(1)-(2),(5),(8).

 On August 23, 1993, Auburn Solid Waste Director Robert Becker at the direction of Corporation Counsel Andrew LaLonde wrote a memo that instructed solid waste facility staff not to engage in conversations with Walsh at the solid waste facility. Compl. P 7-A(E), Ex. 19. The memo, which was copied to Malone, also indicated that it would be in the department's best interests that employees not discuss the department's business with Walsh off site. *fn1"

 II. Procedural Background

 Plaintiff filed a complaint with DHR and the United States Equal Employment Opportunity Commission ("EEOC") on November 10, 1992. DHR issued a finding of no probable cause on October 6, 1994. This determination notified Walsh that seeking state judicial review could cause him to lose his right to bring an action in federal court. Compl. Ex. 18. EEOC notified Walsh of its finding that he had not established a violation of Title VII on February 17, 1995. Id. Ex. 21.

 After DHR's no probable cause finding but before the EEOC determination, Walsh brought a state court action. *fn2" In this lawsuit, Walsh sued the City of Auburn, Malone, Becker, LaLonde, Auburn City Councillors Ann Bunker, James Hutchinson, and Mark Fandrich and Mayor Guy Cosentino. Walsh v. City of Auburn, No. 94-5994 (Supreme Ct. Cayuga Cty.), Notice of Petition. Walsh purported to bring his suit pursuant to New York's Human Rights Law, N.Y. Exec. L. § 290 et seq., the ADEA, and the New York Civil Service Law. Id. He sought a declaratory judgment that the various defendants/respondents had violated the ADEA, reinstatement, a permanent injunction, damages and attorney's fees. Id., Petition at 6-7. Walsh neither named nor served DHR. The defendants moved to dismiss, and Justice Corning granted defendants' motion in a memorandum decision and order signed March 14, 1995. Id., Memorandum Decision and Order, Dkt. No. 11, Ex. B. at 2-3. Justice Corning held that Walsh was not free to bring a plenary action alleging age discrimination because he had elected his remedies by filing an administrative complaint. Id. at 2; see also N.Y. Exec. L. § 297(9) (McKinney 1993). Justice Corning also stated that Walsh "has not brought an Article 78 proceeding challenging the determination and cannot do so in this action since the Human Rights Division was not a named respondent and the proceeding is not timely." Walsh v. City of Auburn, Memorandum-Decision and Order at 2; Exec. L. § 298. Therefore, Justice Corning denied Walsh's application for "a judgment determining his termination was in violation of the Age Discrimination in Employment Act or that he should be appointed as Assistant Director of Solid Waste." Walsh v. City of Auburn, Memorandum-Decision and Order at 3. Justice Corning also rejected on the merits Walsh's claim that he should have been given a preference under the Civil Service Law and appointed to the assistant solid waste director's position and determined that this claim was untimely. *fn3" Id. at 2-3.

 Walsh filed a notice of appeal from Justice Corning's memorandum decision and order on Monday April 17, 1995. At the time of oral argument, Walsh had not perfected this appeal. Walsh explains that his lack of funds and expertise has prevented him from perfecting the appeal. Dkt. No. 35, Memo from Plaintiff to Court of 10/11/95.

 Walsh filed this action on May 5, 1995. He sued all of the defendants named in the second state court lawsuit ("the municipal defendants") as well as the general counsel, New York State Division of Human Rights, the general counsel of the United States Equal Employment Opportunity Commission, and the Auburn Civil Service Commission. Walsh and the EEOC stipulated to dismissal of plaintiff's claims against the EEOC, and Walsh conceded at oral argument that the Auburn Civil Service Commission was entitled to dismissal.

 DHR *fn4" moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). DHR claims that (1) this action is barred by sovereign immunity, (2) DHR is not a person within the meaning of 42 U.S.C. § 1983, and (3) DHR is not an employer within the meaning of 29 U.S.C. § 630(f). The municipal defendants seek dismissal of Walsh's age discrimination complaints based on failure to state a claim on which relief can be granted, res judicata and/or collateral estoppel, and qualified immunity. Finally, the municipal defendants seek dismissal of Walsh's First Amendment claims because (1) there is no allegation that Walsh's speech was restricted; (2) the Solid Waste facility was not a public forum and therefore plaintiff had no right to free speech at that location, (3) the defendants' ...


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