The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, JR., U.S.D.J.
Plaintiff Thomas Stanley, the former Comptroller of the Town of Yorktown, brought this action pursuant to 42 U.S.C. § 1983 and § 296 of the New York State Executive Law, alleging that the defendants violated his First Amendment rights to freedom of speech and to petition for redress of grievances and discriminated against him on the basis of age. Plaintiff alleges, in essence, that the defendants unfairly penalized him due to his criticisms of various municipal policies and practices.
Defendant Linda Cooper, the Town Supervisor, and defendant Town of Yorktown both move to dismiss the complaint pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6). Cooper also asserts the defense of qualified immunity. For the reasons that follow, plaintiff's claims against Cooper are dismissed on the basis of qualified immunity. Defendant Town of Yorktown's motion is denied in all respects.
A district court's function on a motion to dismiss under Fed. R. Civ. P. Rule 12(b)(6) is to assess the legal feasibility of the complaint. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991). The issue "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The complaint should not be dismissed unless it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ricciuti v. NYC Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted)). Consequently, the Court accepts as true and construes favorably to the plaintiff the factual allegations in the complaint and supporting documentation. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Walker v New York, 974 F.2d 293, 298 (2d Cir. 1992); Wolff v. City of New York Financial Sers. Agency, 939 F. Supp. 258, 263 (S.D.N.Y. 1996). The following facts have been construed accordingly.
As a result of his criticisms, Stanley contends, the Town Board, at the initiative of Town Supervisor Cooper, decided not to reappoint him to the position of Comptroller after the expiration of his two year term on December 31, 1995. After the expiration of his term, plaintiff remained in his position for some weeks as a "holdover."
On January 11, 1996, after plaintiff had failed on account of illness to report to work that day, Cooper announced that Stanley had resigned. Plaintiff immediately notified Cooper that he had not resigned and did not intend to do so. Subsequently, plaintiff, his term having expired, was removed from the payroll by Cooper.
When plaintiff learned that the Town was accepting applications for the position of Comptroller, he immediately applied. Cooper's written response to plaintiff's application stated that in order for him to be considered for the Comptroller position he would have to execute a general release barring any claims he might assert against the Town. Plaintiff refused to execute the release and consequently was not considered for the Comptroller position.
The Town hired for the Comptroller position a female 20 years plaintiff's junior. Plaintiff was 51 years old at the expiration of his term as Comptroller. In May 1997 plaintiff filed this action.