The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
In her Second Amended Complaint, the plaintiff, Patricia Fry, alleges that the defendants deprived her of her constitutional rights in violation of 42 U.S.C. § 1983. Section 1983 provides a cause of action against any person who, under color of state law, deprives another of their federal rights, privileges or immunities. See 42 U.S.C. § 1983. Fry alleges violations of her rights under the First and Fourteenth Amendments to the United States Constitution, together with state law claims for defamation, breach of contract and violations of the New York State Civil Service Law.
The plaintiff has sued defendants H. Carl McCall, Comer S. Coppie, and Rosemary Scanlon.
The defendants have now moved, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all of the claims against them. Under Rule 12(b)(1), the defendants argue that because the Eleventh Amendment to the United States Constitution prevents a state from being sued in federal court, this Court lacks subject matter jurisdiction over the claims against them in their official capacities. The defendants further argue that all remaining claims must be dismissed, pursuant to Rule 12(b)(6), because, for each of these causes of action, Fry has failed to state a claim upon which relief can be granted.
In her Second Amended Complaint, Fry alleges the following facts. On or about September 13, 1993, Fry was appointed the Director of the Bureau of Agency Analysis of the Office of the State Deputy Comptroller for the City of New York (OSDC). (Second Amendment Complaint at P80). The OSDC is a division of the State Comptroller's Office and the Deputy Comptroller for the City of New York can perform any of the powers and duties of the State Comptroller. (Id. at PP19-20).
Fry was appointed to her position at OSDC by defendant H. Carl McCall, the Comptroller of the State of New York at that time. (Id. at PP4, 80). During the relevant time period, defendant Comer S. Coppie was First Deputy Comptroller of the State of New York. (Id. at P6). From in or about September of 1993, defendant Rosemary Scanlon was Assistant State Deputy Comptroller for the City of New York and the Acting State Deputy Comptroller for the City of New York. (Id. at P9). According to the complaint, Coppie and Scanlon were Fry's immediate supervisors. (Id. at PP70, 87).
According to Fry, in mid-March, 1994 Coppie informed her that she was probably going to be fired for not getting along with her staff. (Id. at P125). Coppie told Fry that he had advised McCall that Fry would not cause trouble if she was fired. (Id at P126.) Fry alleges that at that time she requested an opportunity to meet with McCall to "make her case." (Id. at P127). She further alleges that the defendants never offered her or her attorney the opportunity to rebut the charges against her. (Id. at P129).
Fry was terminated by the defendants effective March 24, 1994. (Id. at P131). Fry alleges that after her termination the defendants and other management personnel at OSDC told OSDC staff members that Fry was fired because Fry could not get along with the defendants. (Id. at P132). Fry further alleges that this justification was passed along to reporters through the defendants' spokesman, and was widely published in newspapers throughout New York State. (Id. at P132).
Fry asserts that she had a good relationship with her staff and supervisors, and was actually fired because of her "professional speech." (Id.). Specifically, Fry alleges that she was fired for voicing concerns about the audit reports being issued by the OSDC. (Id. at PP135-38). She argues that she was fired for objecting to supervisors' editing of the reports she had produced. (Id.). She further alleges that this editing was an attempt to downplay the urgency of looming budget deficits faced by the City of New York. (Id.). Fry also asserts that she was fired for objecting to OSDC's issuing reports that were inaccurate, incomplete, and misleading. (Id.).
Fry, relying on this Court's supplemental jurisdiction, also asserts state causes of action against the defendants. Fry alleges that she was defamed by the public reasons given by the defendants for her termination. She also argues that her termination was a breach of her implied employment contract. Fry also asserts a claim under New York Civil Service Law § 75-b, which protects public employees from retaliation by their employers.
The defendants argue, pursuant to Federal Rule of Civil Procedure 12(b)(1), that this Court lacks subject matter jurisdiction over many of Fry's claims. Specifically, the defendants argue that all claims against them in their official capacities are barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment provides that "the Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." "The Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens of other states, as the literal language of the Amendment provides, but also over suits against such states brought by their own citizens." Dwyer v. Regan, 777 F.2d 825, 835 (2d Cir. 1985), modified, 793 F.2d 457 (1986) (citing Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974)).
"Actions against state officials are also barred by the [Eleventh] Amendment where the relief granted would bind the state or where the state is the real party in interest." Russell v. Dunston, 896 F.2d 664, 667 (2d Cir.), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). The state is the real party in interest when a state officer is sued in his or her official capacity. See Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).
However, a suit against a state official in his or her official capacity, arising under federal law, is not barred by the Eleventh Amendment if it seeks prospective injunctive relief, rather than monetary damages. Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir.), cert. denied, 501 U.S. 1211, 115 L. Ed. 2d 986, 111 S. Ct. 2814 (1991); Russell, 896 F.2d at 667-68. Thus, while Fry's claims against the defendants in their official capacities seeking damages under § 1983 are barred by the Eleventh Amendment, Fry's federal claims for reinstatement against the defendants in their official capacities are not barred by the Eleventh Amendment. Dwyer, 777 F.2d at 835-36 (citing Perry v. Sindermann, 408 U.S. 593, 603, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)); see also Russell, 896 F.2d at 667 (reinstatement to medical leave not barred by Eleventh Amendment).
In contrast, whether a plaintiff seeks injunctive relief or monetary damages, any state law claim brought in federal court against a state official in his or her official capacity is barred by the Eleventh Amendment, unless the state has waived its immunity against such a suit. Pennhurst, 465 U.S. at 106; Dube, 900 F.2d at 595. Fry argues, however, that Civil Service Law § 75-b waives New York's sovereign immunity under the Eleventh Amendment, and therefore at least the section 75-b claims against the defendants in their official capacities are not barred by the Eleventh Amendment. In support of this assertion, Fry asserts that because section 75-b allows suit in "any court of competent jurisdiction," New York intended to permit itself to be sued in federal court under this provision.
While a state may consent to jurisdiction in federal court by waiving its sovereign immunity, such a waiver must be expressed unequivocally. See Florida Dept. of Health and Rehabilitation Services v. Florida Nursing Home Ass'n, 450 U.S. 147, 150, 67 L. Ed. 2d 132, 101 S. Ct. 1032 (1981); see also Pennhurst, 465 U.S. at 100-01; Kirwin v. New York State Office of Mental Health, 665 F. Supp. 1034, 1038 (E.D.N.Y. 1987). As Judge Platt found in Kirwin, section 75-b does not provide an express waiver of Eleventh Amendment immunity. Rather, section 75-b, in referring to a "court of competent jurisdiction," also refers to venue provisions in Article 20-C of the New York Labor Law which only have meaning in the New York court system. See N.Y. Labor Law § 740(4)(b); Kirwin, 665 F. Supp. at 1038. Thus, section 75-b does not provide for jurisdiction in federal court or act as a waiver of Eleventh Amendment immunity. All the state claims against the defendants in their official capacities are thus bared by the Eleventh Amendment.
Fry concedes that all of her federal claims for monetary relief against the defendants in their official capacities are barred by the Eleventh Amendment. But, as explained above, claims brought under 42 U.S.C. § 1983 for injunctive relief against the defendants in their official capacities are not barred by the Eleventh Amendment. Also for the reasons explained above, all state law claims against the defendants in their official capacities, regardless of the remedy sought, are barred by the Eleventh Amendment. Thus, only Fry's claims against the defendants in their individual capacities, whether arising under state or federal law, and those federal claims seeking reinstatement survive this motion to dismiss.
The defendants also move to dismiss all of Fry's remaining claims pursuant to Federal Rule of Civil Procedure 12(b)(6). On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true. Cohen v. Koenig, 25 F.3d 1168, 1172-73 (2d Cir. 1994); see also Baxter v. A.R. Baron & Co., Inc., 1996 U.S. Dist. LEXIS 15098, 1996 WL 586338 at *2 (S.D.N.Y. 1996). In addition, all reasonable inferences must be made in the plaintiff's favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); see also Baxter, 1996 U.S. Dist. LEXIS 15098, 1996 WL 586338 at *2. The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985); see also Baxter 1996 U.S. Dist. LEXIS 15098, 1996 WL 586338 at *2. Therefore, the motion should be granted only if it appears that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); see also Goldman, 754 F.2d at 1065; Baxter, 1996 U.S. Dist. LEXIS 15098, 1996 WL at *2.
The defendants argue that all federal claims against McCall must be dismissed because Fry has not pleaded any personal involvement by McCall in her alleged constitutional deprivations. "In this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978)); see also Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir. 1996); Champion v. Artuz, 76 F.3d 483, 487 (2d. Cir. 1996). Personal involvement includes, but is not limited to, direct participation in the infraction. Moffitt, 950 F.2d at 886.
Fry does plead personal involvement by McCall. Fry alleges that she was dismissed by all of the defendants, not just by Coppie and Scanlon. Moreover, Fry alleges that Coppie told her that he had informed McCall that Fry would not cause any trouble if she was fired. (Second Amended Complaint at P126). The Second Amended Complaint also alleges that Coppie initially told Fry that she could speak with McCall to make her case. (Id. at P127). Drawing all inferences in the plaintiff's favor, the Second Amended Complaint alleges that McCall was personally involved in the ...