of production then shifts to the employer to "articulate a legitimate,
clear, specific and non-discriminatory reason" for failing to hire the
plaintiff. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). If
the employer does so, the presumption of discrimination drops out and the
plaintiff has the burden of proof by a preponderance of the evidence that
the employer's stated reason was merely a pretext for discrimination.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993).
1. Plaintiff's Prima Facie Case
To establish a prima facie age discrimination claim, plaintiff must
show that: (1) he is within the protected age group; (2) he is qualified
for the job; (3) he suffered an adverse employment decision; and (4) the
employment decision occurred under circumstances giving rise to an
inference of age discrimination. See Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001). The burden to establish a prima
facie case is de minimis. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196,
203-04 (2d Cir. 1995). Plaintiff may support his claim through direct
evidence, but if such evidence is unavailable, "a plaintiff may through
statistical evidence establish a pattern or practice of . . . failing to
[hire people over forty] . . . from which an inference of age
discrimination may be drawn." Fisher v. Vassar Coll., 70 F.3d 1420, 1450
(2d Cir. 1995).
Here, plaintiff has met his burden and established a prima facie age
discrimination claim. First, plaintiff was sixty-one years old on June
27, 1997 when the GPD rejected him, placing him squarely within the
protected class. (See Purdy Aff., Ex. F.) This is the first alleged
instance of discrimination after the June 13, 1997 statute of limitations
cutoff. There is no dispute that plaintiff was denied employment.
Plaintiff has also submitted statistical evidence sufficient to create
a triable factual issue as to whether an inference of discrimination may
be drawn. To qualify as a police officer in the Town, an applicant must
complete the Civil Service Examination. The score from the exam is
increased by any available veteran's credits to generate a composite
score for each applicant. Plaintiff first took this exam in December 1992
and received a score of 80. He subsequently retook the exam, receiving a
score of 85. With the addition of five veteran's credits, plaintiff
received a composite score of 90. (Purdy Aff. ¶¶ 10-11.) Plaintiff has
submitted a list of eligible candidates, noting their dates of birth,
composite scores and dates of appointment. (Purdy Aff., Ex. F.) The list
indicates that many younger candidates with lower composite scores than
plaintiff were appointed as police officers. This statistical evidence is
sufficient to satisfy the de minimis summary judgment standard.
Defendants argue that plaintiff cannot satisfy his prima facie case
because he is collaterally estopped from establishing that he is
qualified to be a police officer. They contend that the issues of
plaintiffs character, fitness and qualifications to be a police officer
were previously litigated against him in the hearings held by the Town in
1976, which was later upheld by the New York State Court of Appeals in
Purdy II. Defendants also assert that plaintiff is estopped from arguing
his qualifications because of the Third Department's findings in New York
State Fed'n of Police.
We set forth the requirements for collateral estoppel in Section I.B.
supra. For collateral estoppel to apply, the issue that was actually and
necessarily litigated in the first action must be identical to the issue
raised in the second. See Plonka v. Brown, No. 00-7651, 2001 WL 99834, at
(2d Cir. Feb.2, 2001) ("The doctrine applies if the issue in the second
action is identical to an issue which was raised, necessarily decided and
material in the first action.") (citations omitted). The precise issue
litigated in 1976 was whether plaintiff violated Chapter 9.5.14 of the
GPD rules prohibiting certain political activities. See Purdy II, 418
N.Y.S.2d at 331, 391 N.E.2d 1307. The issue in the instant action is
whether plaintiff is qualified to be a police officer. Similarly, the
issue litigated and decided in New York State Fed'n of Police was whether
plaintiff violated the terms of the preliminary injunction. Although
plaintiffs prior political activities and attention to court injunctions
may ultimately bear on his qualifications to become a police officer,
this is a question of fact for the jury. Plaintiff produced ample
evidence on this issue. He previously served as a police officer for
sixteen years and received a high composite score on the Civil Service
Examination. Accordingly, plaintiff has met his burden and established a
prima facie ADEA claim.
2. Legitimate, Non-Discriminatory Reasons for Failure to Hire
Once a plaintiff has made out a prima facie case of discrimination, the
burden of going forward shifts to the employer to articulate a
legitimate, non-discriminatory reason for failing to hire the applicant.
See Abdu-Brisson, 239 F.3d at 468. Defendants state that they decided not
to hire plaintiff because "he was not qualified by virtue of his poor
moral fitness and character." (Defs.Mem.Supp.Summ.J. at 12.)
Specifically, Kapica's reasons for determining that plaintiff was
unqualified include plaintiffs previous termination for violating a
department rule, the Attorney General's investigation into plaintiffs
organizations for fraudulent solicitations, allegations of plaintiffs
financial misdeeds*fn6 and personal knowledge of an encounter plaintiff
allegedly had with a citizen as an officer in 1973.*fn7 (Defs.Rule 56.1
Stmt. ¶¶ 41-47.) Defendants have clearly articulated several
legitimate, non-discriminatory reasons for failing to hire plaintiff, and
therefore have successfully rebutted plaintiffs prima facie case.
3. Pretextual Stage
After finding that the defendants articulated legitimate.
non-discriminatory reasons for failing to hire plaintiff, "the McDonnell
Douglas framework — with its presumptions and burdens — is no
longer relevant." St. Mary's Honor Ctr., 509 U.S. at 510, 113 S.Ct.
2742. Instead, the plaintiff is faced with the standard burden of proof
in civil action of "`persuading the
trier of fact that he has been the victim of intentional
discrimination.'" Id. at 508, 113 S.Ct. 2742 (quoting Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981)); see also Philippeaux v. County of Nassau, 921 F. Supp. 1000,
1009 (E.D.N.Y. 1996). However, the plaintiff is "not required to show
that the employer's proffered reasons were false or played no role in the
employment decision, but only that they were not the only reasons and
that the prohibited factor was at least one of the `motivating' factors."
Cronin, 46 F.3d at 203. Although the plaintiffs ultimate burden of
persuasion is often satisfied with the introduction of additional evidence
showing that the employer's explanation is unworthy of belief, it may
also be met solely through reliance on the evidence establishing the
prima facie case. See id. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,
78-79 (2d Cir. 2001).
Thus, unless the employer has come forward with
evidence of a dispositive nondiscriminatory reason as
to which there is no genuine issue and which no
rational trier of fact could reject, the conflict
between the plaintiffs evidence establishing a prima
facie case and the employer's evidence of a
nondiscriminatory reason reflects a question of fact
to be resolved by the factfinder after trial.
Defendants argue that plaintiff has presented no evidence that
defendants considered age in deciding not to hire him. We disagree.
Unlike the plaintiffs in the cases cited by defendants, plaintiff here is
relying on more than his subjective opinion. But cf. Layaou v. Xerox
Corp., 999 F. Supp. 426, 433 (W.D.N.Y. 1998) (holding that "[a]n
employee's subjective opinion about his qualifications, however, is
insufficient to give rise to a triable issue of fact . . ."); Brennan v.
Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 317 (2d Cir. 1999)
(dismissing age discrimination claim where defendant did not even know
plaintiffs age or the age of the other applicants, or the age of
applicants relative to each other). On the contrary, as part of his prima
facie case plaintiff produced statistical evidence sufficient to raise a
triable issue of fact as to whether age was a motivating factor in the
hiring decision. The conflict between this evidence and defendants'
non-discriminatory reasons presents a triable issue of fact for the
jury. The fact that plaintiff produced no additional evidence to rebut
defendants' non-discriminatory reason does not necessarily portend
failure, for the "plaintiffs burden . . . `may often be carried by
reliance on the evidence comprising the prima facie case, without more.'"
Holtz, 258 F.3d at 79 (quoting Cronin, 46 F.3d at 203). Although
plaintiff may have substantial difficulty proving these claims at trial, a
genuine issue of material fact exists and he is entitled to a jury's
resolution of that issue.
D. ADEA Preemption of § 1983
Plaintiff asserts an age discrimination claim under 42 U.S.C. § 1983.
Defendants counter that the ADEA preempts § 1983 and is the exclusive
federal remedy for age discrimination. We disagree. It is well
established that § 1983 is a procedural mechanism for asserting
federal rights and does not in itself create any substantive rights. See
Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756 (2d Cir.
1998), cert. denied, 526 U.S. 1145, 119 S.Ct. 2020, 143 L.Ed.2d 1032
(1999). Congress retains the right to modify, repeal or replace §
1983, a statutory creation, with alternative remedies. See Smith v.
Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).
The Second Circuit has not decided whether the ADEA preempts an age
claim brought under § 1983. See Campbell v. City Univ. Constr. Fund,
No. 98 Civ. 5463, 1999 WL 435132, at *5 (S.D.N.Y. June 25, 1999). The
district courts are split on the issue, although the recent trend favors
a conclusion of no preemption. Compare Bendel v. Westchester County
Health Care Corp., 112 F. Supp.2d 324 (S.D.N.Y. 2000) (ruling against
preemption); Campbell, 1999 WL 435132, at *5 (same); Reed v. Town v.
Branford, 949 F. Supp. 87 (D.Conn. 1996) (same); Essen v. Board of Educ.
of the Ithaca City School District, No. 92 Civ. 1164, 1996 WL 191948
(N.D.N.Y. April 15, 1996) (same); Jungels v. State Univ. Coll. of New
York, 922 F. Supp. 779 (W.D.N.Y. 1996) (same), with Gregor v. Derwinski,
911 F. Supp. 643 (W.D.N.Y. 1996) (ruling of preemption); Reale v.
Jenkins 92 Civ. 7234, 1993 WL 37091 (S.D.N.Y. Feb. 9, 1993) (same);
Tranello v. Frey, 758 F. Supp. 841 (W.D.N.Y. 1991) (same), aff'd on other
grounds, 962 F.2d 244 (1992).
Those courts that permit a § 1983 claim follow closely the
reasoning of Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir.
1993), where the court found that in the context of sex discrimination "a
§ 1983 claim is not precluded by a concurrent Title VII claim, when
the former is based on substantive rights distinct from Title VII." This
Court finds no reason to differentiate between Title VII and ADEA for
preemption purposes. See Reed, 949 F. Supp. at 89. Here, plaintiff asserts
that defendants violated his rights under the Equal Protection Clause of
the Fourteenth Amendment by refusing to hire him. Although plaintiffs
complaint is vague, he does allege a deprivation of rights under the
"Constitution and laws of the United States." (Complt.¶ 1.)
The Federal Rules of Civil Procedure instruct that all pleadings should
be construed liberally "to do substantial justice." FED.R. Civ.P. 8(f).
Furthermore, defendants were placed on notice of plaintiffs equal
protection claim and had the opportunity to file a brief in reply when
plaintiff raised the issue in his moving papers. (Pl. Mem.Supp.Mot.Amend.
at 3.) ("It is, therefore, respectfully submitted that this age
discrimination claim may be brought under Section 1983 considering the
merits of an age discrimination claim pursuant to Section 1983 I[sic] the
context of an equal protection agreement.") Because plaintiff presents a
separate, cognizable § 1983 equal protection claim, this Court holds
that it is not preempted by the ADEA.
E. Section 1983 Claim
To state a cognizable claim under § 1983, "a plaintiff must allege
a violation of rights secured by the Constitution or laws of the United
States, and that such violation was committed by a person acting under
color of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.
1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494
(1997). It is undisputed that the defendants acted under color of state
law. Plaintiff alleges that defendants discriminated against him on the
basis of age in violation of the Equal Protection Amendment. Because age
is not a suspect class, the Equal Protection Clause only requires a
rational basis for discrimination on the basis of age. See Vance v.
Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Monzi v.
DiCarlo, 62 F. Supp.2d 780, 795 (E.D.N.Y. 1999). Whether or not
defendants had a rational basis to discriminate on the basis of age is an
issue of fact for the jury. Thus, defendants' motion for summary judgment
dismissing plaintiffs § 1983 claim is denied.
1. Individual Liability Under § 1983
a. Respondeat Superior
Plaintiffs section 1983 claim against Supervisor Feiner in his
capacity must be dismissed for lack of personal involvement. Where
damages are sought in a section 1983 action, the defendant must be
responsible for the alleged constitutional deprivation: "[T]he general
doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required." Al-Jundi v. Estate
of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) (quoting Johnson v.
Glick, 481 F.2d 1028, 1034 (2d Cir. 1973)). As Judge Scheindlin recently
A supervisory official may be personally involved in a
section 1983 violation in several ways: (1) the
official may have directly participated in the
violation; (2) the official, after learning of the
violation, may have failed to remedy the wrong; (3)
the official may have created a policy or custom under
which unconstitutional practices occurred; (4) the
official may have been grossly negligent in managing
subordinates who caused the unlawful condition or
event; or (5) the official may have exhibited
deliberate indifference by failing to act on
information indicating that unconstitutional acts were
Showers v. Eastmond, No. 00 Civ. 3725, 2001 WL 527484, at *4 (S.D.N.Y.
May 16, 2001).