test is not satisfied by the improbable possibility that the EEOC could have stumbled into a new universe of allegations that the plaintiff alleges for the first time in his complaint. Allowing Chinn to raise Title VII retaliation claims for the first time to this Court would undermine the administrative remedial process mandated by Title VII and deprive defendants of notice of the charges. Plaintiff's Title VII retaliation claims are dismissed for failure to exhaust administrative remedies.
II. SECTION 1981 CLAIMS
A. Eleventh Amendment Immunity
Defendants argue that the Eleventh Amendment bars plaintiff's § 1981 claims against CUNY and against Dean Glen, sued in her official capacity. Def. Mem. of Law at 8-11. Plaintiff conceded that the Eleventh Amendment bars his § 1981 claims against CUNY, but contends that he can proceed against Dean Glen for reinstatement, and can assert § 1981 claims against Dean Glen in her individual capacity. Pl. Mem. of Law at 8-9.
1. Defendant CUNY
The Eleventh Amendment bars a suit in federal court against a state or one of its agencies in the absence of the state's explicit consent to be sued or Congress's unequivocal abrogation of immunity.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). "This jurisdictional bar applies regardless of the nature of the relief sought." Id. 465 U.S. at 100-101; see also Seminole Tribe of Florida v. Florida, 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1124 (1996) ("we have often made it clear that the relief sought by plaintiff suing a State is irrelevant to the question of whether is suit is barred by the Eleventh Amendment"); Dube v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990) (no legal or equitable relief against SUNY because of Eleventh Amendment), cert. denied, 501 U.S. 1211, 115 L. Ed. 2d 986, 111 S. Ct. 2814 (1991). For purposes of enjoying Eleventh Amendment immunity, courts in this circuit have found City University to be an arm of the State of New York. Moche v. City University of New York, 781 F. Supp. 160, 165 (E.D.N.Y. 1992), aff'd without op., 999 F.2d 538 (2d Cir. 1993). The Court dismisses plaintiff's § 1981 claim (included in the first cause of action) against defendant CUNY because it is barred by the Eleventh Amendment.
2. Defendant Dean Glen, in her Official Capacity
Analysis of Eleventh Amendment immunity for state officials, acting in their official capacity, is more complicated. The applicability of the Eleventh Amendment to official capacity actions turns on the nature of relief sought, namely, prospective or retrospective remedies. See Quern v. Jordan, 440 U.S. 332, 337, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979). The Eleventh Amendment bar applies "when State officials are sued for damages in their official capacities." Kentucky v. Graham, 473 U.S. 159, 169, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (internal citations omitted); see also Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993).
However, a private party can seek prospective injunctive relief to abate a continuing violation of federal law by a state official acting in his or her official capacity. Green v. Mansour, 474 U.S. 64, 68, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985); Edelman v. Jordan, 415 U.S. 651, 666-67, 677, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) ("a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief . . . and may not include a retroactive award which requires the payment of funds from the state treasury"). This "exception" to Eleventh Amendment immunity is necessary "to vindicate the federal interest in assuring the supremacy of [federal] law." Green, 474 U.S. at 68; see also Ex parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714, 28 S. Ct. 441 (1908) (under certain circumstances, suit against state official not treated as action against the state). Injunctive relief against a state official is available to compel compliance with federal law even if it results in "a substantial ancillary effect on the state treasury." Papasan v. Allain, 478 U.S. 265, 278, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). In contrast, retrospective compensatory relief, whether "expressly denominated as damages . . . or tantamount to an award of damages for a past violation of federal law," does not vindicate sufficient interests to justify overcoming the Eleventh Amendment bar. Id.; see also Edelman, 415 U.S. at 666-68 (retrospective remedy styled as equitable restitution not permissible). To avoid a partial "end-run" around Eleventh Amendment immunity, any remedy for past violations of federal law, including declaratory judgment, is barred. Green, 474 U.S. at 72-73.
Courts have found that an order directing a state official to reinstate a plaintiff falls in the category of prospective relief permitted by the Eleventh Amendment. Edelman, 415 U.S. 651 at 664, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (prospectively restoring plaintiffs to state's welfare rolls did not violate Eleventh Amendment); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985) (reinstatement to position "is purely prospective relief that orders state official to return the former employee to the state's payroll"); Russell v. Dunston, 896 F.2d 664, 667-68 (2d Cir.) (reinstatement to medical leave not barred by Eleventh Amendment), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990); Fry v. McCall, 945 F. Supp. 655, 660 (S.D.N.Y. 1996) (reinstatement claim not barred by Eleventh Amendment); Marcano v. Downstate Medical Center, 1988 U.S. Dist. LEXIS 17585, No. 84- CV-1657, 1988 WL 235648, *1 (E.D.N.Y. June 23, 1988) (§ 1981 claim for reinstatement can proceed); Daisernia, 582 F. Supp. at 803 (same).
The Second Circuit has also held that the award of attorneys' fees, in the context of a constitutional claim for prospective injunctive relief, is considered "ancillary to the injunction claim and therefore not barred by the Eleventh Amendment." Dwyer, 777 F.2d 825 at 837; see also Hutto v. Finney, 437 U.S. 678, 693-700, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978) (attorneys' fees pursuant to § 1988 not barred by Eleventh Amendment).
Plaintiff's first and fifth causes of action include § 1981 claims against defendant Dean Glen in her official capacity. Compl. PP 36, 45. The operation of Eleventh Amendment immunity for Dean Glen acting in her official capacity turns on the nature of relief sought by Chinn. The Eleventh Amendment clearly bars recovery of any money damages from Dean Glen for actions taken in her official capacity. However, plaintiff can sue defendant Dean Glen in her official capacity for reinstatement and, if successful, can recover corresponding attorneys' fees.
3. Defendant Dean Glen, in her Individual Capacity
Defendants acknowledge that the Eleventh Amendment provides no shield of immunity to state officials sued in federal court in their individual capacity, regardless of the nature of relief sought. Chinn's fifth cause of action, which includes an individual capacity § 1981 claim against defendant Dean Glen, is not barred by the Eleventh Amendment.
B. Failure of State a Claim
Defendants argue that Chinn's § 1981 claims that are not barred by the Eleventh Amendment must be dismissed, pursuant to Rule 12(b)(6), for failure to state a claim because Chinn has not alleged purposeful discrimination or the existence of a contract. Def. Mem. of Law at 11-13.
A motion to dismiss for failure to state a claim should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Green v. Maraio, 722 F.2d 1013, 1015-16 (2d Cir. 1983) (quoting Conley v Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). A court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).
To state a claim under § 1981, a plaintiff must allege
(1) [that he or she] is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) [that] the discrimination concerned one or more of the activities enumerated in the statute (ie. make and enforce contracts, sue and be sued, give evidence, etc.).
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). A § 1981 action must allege "that the defendants' acts were purposefully discriminatory . . . and racially motivated." Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1998) (en banc). A Rule 12(b)(6) motion to dismiss a § 1981 claim cannot be defeated by the complaint's "naked assertions" of discrimination; rather, "the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994) (internal citations omitted).
Section 1981(b) provides that "for purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C. § 1981(a), (b). In order to state a § 1981 claim for discriminatory discharge or discriminatory treatment during employment, "according to the plain language of Section 1981, plaintiff's claim would have to be based on a contractual relationship" with the employer. Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994).
Chinn has alleged sufficient circumstances to give rise to an inference of intentional discrimination to survive a Rule 12(b)(6) motion. The complaint alleges that Chinn's involuntary reassignment and termination "were motivated [in part] by racial animus towards plaintiff." Compl. PP 31, 45. Chinn supports his contention of intentional discrimination and pretextual motive with fact-specific allegations that Chinn's replacement was white, that he was transferred to an all-black department while the stated reason for the reassignment was to create racial diversity, that Dean Glen knew Chinn's new position in the Financial Aid Office was subject to budget cuts, and that defendants were retaliating against him for his opposition to CUNY's allegedly discriminatory policies toward blacks and other minorities. Id. PP 25-27, 31-32. Accepting plaintiff's factual assertions in the complaint as true and construing them favorably, the Court cannot conclude that Chinn would not be able prove his claim of intentional discrimination.
Chinn makes no allegation in the complaint of the existence of a contract between him and CUNY. However, plaintiff argues that his hiring in 1990 and subsequent reappointments establish an employment contract with his employer. Pl. Mem. of Law at 10. While the complaint may be marginally deficient, at this stage, the Court cannot conclude with certainty that plaintiff would be unable to establish the requisite contractual relationship.
III. STATE LAW CLAIMS
A. Eleventh Amendment
Defendants seek dismissal of Chinn's state law discrimination claim ( seventh cause of action) and tort claim ( eighth cause of action) for lack of subject matter jurisdiction based on Eleventh Amendment immunity. Def. Mem. of Law at 13-15. Although not specified in the complaint, supporting papers clarify that plaintiff's state law statutory action is brought under New York's Human Rights Law, Executive Law § 290 et seq. See Pl. Mem. of Law at 9.
The Eleventh Amendment bar applies to state law pendant claims, as well as to claims arising under federal law, in the absence of a state statute explicitly waiving the state's sovereign immunity by consenting to be sued in federal court. Pennhurst, 465 U.S. at 99, 120-21. Pendant jurisdiction does not allow a plaintiff to evade the Eleventh Amendment's proscription against suing states or their agencies in federal court. Id. at 121. A state's consent to suit in its own courts is not a sufficient waiver of Eleventh Amendment immunity. Id. at 99 n.9. Courts in this circuit have ruled that the general consent to suit provision of New York Executive Law § 297(9), which provides for "a cause of action in any court of appropriate jurisdiction" against the state for discrimination, does not waive New York State's Eleventh Amendment immunity from suit in federal court. Moche, 781 F. Supp. at 165; Cassells v. Univ. Hosp. at Stony Brook, 740 F. Supp. 143, 147-48 (E.D.N.Y. 1990); see also Port Authority Trans-Hudson Corp, v. Feeney, 495 U.S. 299, 306, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990) (general consent to be sued is not adequate waiver of Eleventh Amendment immunity).
Whereas a federal court may award injunctive relief against a state official in an official-capacity action based on the Ex Parte Young "exception," the Eleventh Amendment bars even prospective injunctive relief based on violations of state law. Pennhurst, 465 U.S. at 106 (state law claim does not implicate supremacy of federal law). All of plaintiff's state law claims against defendants CUNY and Dean Glen in her official capacity, regardless of the nature of relief sought, are dismissed on Eleventh Amendment grounds.
B. Tort Claim
Chinn's tort claim against defendants for infliction of emotional distress ( eighth cause of action) must be dismissed also for lack of jurisdiction because it is brought in the wrong forum. New York Education Law § 6224(4) confers
exclusive jurisdiction . . . upon the Court of Claims to hear, audit and determine the claims of any person against the City University of New York . . . in connection with causes of action sounding in tort alleged to have been committed by a senior college of such university or any officer . . . of such university . . . .