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MCNULTY v. NEW YORK CITY DEP'T OF FIN.

October 24, 1996

JEANNETTE C. MCNULTY, Plaintiff against THE NEW YORK CITY DEPARTMENT OF FINANCE, THE OFFICE OF THE NEW YORK CITY SHERIFF, THE OFFICE OF THE NEW YORK CITY MAYOR, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF PERSONNEL, RANDY MASTRO, and KERRY J. KATSORHIS, Defendants.


The opinion of the court was delivered by: SAND

 SAND, J.

 Jeanette C. McNulty brings this action against defendants the New York City Department of Finance, the Office of the New York City Sheriff, the Office of the New York City Mayor, the City of New York, the New York City Department of Personnel, Randy Mastro, and Kerry J. Katsorhis. She claims that the defendants discriminated against her on the basis of her age and sex in their decisions to terminate her current and impede her future employment with the City. Defendants move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(1) and (6). For the reasons set forth below, the motion is denied in part and granted in part.

 I. BACKGROUND

 A.

 In addressing a motion to dismiss for failure to state a claim under Rule 12(b)(6), we are required "to construe any well-pleaded factual allegations in the complaint in favor of the plaintiff[] and [to] dismiss the complaint only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994) (citations omitted). Our function is not to weigh the evidence that might be presented at trial, but merely to determine whether the complaint itself is legally sufficient, Festa v. Local 3 Int'l Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990). "Consideration is limited to the factual allegations in plaintiff's . . . complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 The facts taken as true on this motion are drawn from plaintiff's First Amended Complaint.

 B.

 Plaintiff McNulty is a 60 year-old woman. She worked in various capacities for the City of New York from late 1978 until her employment was terminated on February 15, 1995, First Amended Compl. P 16. At the time she lost her job, she was working in the Office of the City Sheriff. She had been employed there since July 1990; first as Executive Assistant to the Sheriff and then as Director of Personnel for the Office of the City Sheriff, a position to which she was promoted in November 1993, First Amended Compl. PP 17-19. In her capacity as Director of Personnel, the plaintiff "never attended or was invited to attend weekly Sheriff's Office executive level policy making meetings." Id. at P 18.

 On or about February 10, 1995, defendant Mastro or an employee of the Mayor's Office instructed then-Sheriff Katsorhis to select seven employees for termination from his office, id. at P 20. Katsorhis chose plaintiff and six other employees; Mastro reviewed and approved his decision, id. Plaintiff was told of her termination by Katsorhis on February 15. He confirmed it in a memo later that day. The memo indicated that she was terminated due to "budgetary constraints", id. at P 22.

 The City has since rehired the other six employees, id. at P 24, having immediately reinstated four (within the Sheriff's Office) and the other two over time (one in the Sheriff's Office and the other in an undisclosed agency), id. Five of the six were, like plaintiff, provisional employees under the New York Civil Service Law, id. at P 20, and thus not entitled to reinstatement. McNulty was the oldest of the seven terminated, id. at P 24.

 When she learned of the reinstatement of four of her former colleagues, McNulty prevailed upon Katsorhis to rehire her. In the process, she reminded him of her age, id. at P 25. He refused to reconsider his decision, id.

 Plaintiff made one final attempt to return to the Sheriff's Office, writing a letter to the Mayor of New York City in a letter dated February 19, 1995, id. at P 26. This letter was copied to Mastro, id. Plaintiff never received a response, id.

 In April 1995, the Sheriff's Office hired a new Director of Personnel, Ellen Poliski, a 47 year-old woman; Poliski was hired with the same job description and salary, as McNulty, id. at P 23; Reply at 20. This hiring was executed by Katsorhis, Mastro and the Office of the Mayor without following the standard job listing procedures, First Amended Compl. P 23.

 Also in April 1995, McNulty applied for a job with the Conflicts of Interest Board ("COIB") as the Director of Administrative Services and was given a tentative start date of mid-June 1995, id. at P 27. On May 26, 1995, she received a phone call from the Deputy Director of the COIB, informing her that

 
her hiring at COIB would not be approved by the Office of the Mayor. . . . [That] she was an "unacceptable candidate" because she was terminated "for cause" and therefore could not and would not be rehired by COIB or any other New York City agency. . . . [And] that this was Mayor's Office policy.

 Id. at P 28. Plaintiff since learned that Ute O'Malley, a woman "substantially younger" than her, had been hired for that position, id. at P 29.

 Plaintiff also took the New York City civil service examination in March 1995. She was one of many to achieve the highest possible grade, id. at P 31. Despite this, she did not receive job inquiries from any city agencies, id.

 Concluding that she was being barred from employment by the defendants, plaintiff initiated this lawsuit after complying with the dictates of Title VII and the ADEA by filing charges of discrimination against some of the defendants before the EEOC on August 4, 1995, id. at P 4. She received a "right to sue letter" on January 18, 1996 and filed this action within 90 days, id. at P 5.

 C.

 McNulty has brought claims under federal, state, and municipal law. First, she claims that all the entity defendants (but not Mastro or Katsorhis) discriminated against her, on the basis of her age, in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 626 et seq. (the "ADEA"). Second, she claims that those same entity defendants discriminated against her on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Third, McNulty claims that all the defendants, including Mastro and Katsorhis as individuals, discriminated against her on the basis of her age and sex in violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the "HRL"). And fourth, she makes the same claim cast as a violation of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "City Law").

 Defendants ask the Court to dismiss all of these claims under either Fed. R. Civ. P. 12(b)(1) or 12(b)(6). Defendants advance a battery of arguments in support of their motion: (a) that the plaintiff has not adequately pleaded a prima facie case of age or sex discrimination; (b) that plaintiff is not protected by either Title VII or the ADEA because she held a confidential policy-making position; (c) that plaintiff fails to state a claim against Mastro and Katsorhis under the HRL; (d) that the individual city agencies are not suable entities and must be dismissed; and (e) that plaintiff's claim under the City Law is barred because she failed to file a copy of her complaint with the Human Rights Commission (the "HRC") prior to initiating this action (a condition precedent to legal action). These are taken up seriatim.

 II. ...


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