officer and is the manager or supervisor of a corporate division, is not
individually subject to suit with respect to discrimination . . . under
New York's Human Rights Law . . . if he is not shown to have any
ownership interest or any power to do more than carry out personnel
decisions made by others." Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542
(1984) (involving claims of age and sex discrimination). With respect to
many of the individually named defendants, there is absolutely no
evidence that they had the requisite ownership interest or power.
Plaintiffs further allege that "defendants have aided and abetted
discrimination/retaliation." Amended Complaint, ¶¶ 111, 136, Dkt.
#18. Section 296(6) of the HRL states that "[it] shall be an unlawful
discriminatory practice for any person to aid, abet, incite, compel or
coerce the doing of any of the acts forbidden under this article, or to
attempt to do so." The New York Court of Appeals has not decided whether
section 296(6) allows an employee to be held liable as an aider and
abettor if he participates in the discriminatory conduct but does not
have any power to do more than carry out personnel decisions made by
others, and the Appellate Divisions of the New York Supreme Court are
split on the issue. See Hicks v. IBM, 44 F. Supp.2d 593, 599 n. 3
(S.D.N.Y. 1999) (noting that the holding of Tomka is a subject of
controversy among the New York courts); Gemerek v. Buffalo Sewer Auth.,
Civ. No. A.99-0879, 2001 WL 603694 at *2 (W.D.N.Y. May 23, 2001) (same);
see also Chamblee v. Harris & Harris, Inc., 154 F. Supp.2d 670, 676-677
(S.D.N.Y. 2001) (noting split in state decisions). However, the issue
need not be resolved, because plaintiffs have offered no evidence that
any individually named defendant actually participated in discriminatory
With respect to the section 1983 claims, plaintiffs have failed to
demonstrate any concrete nexus between these individuals and plaintiffs,
and little, if any, personal involvement. On the contrary, the evidence
establishes that many of the defendants had no relation whatsoever to the
plaintiffs. Clark Powell, for example, worked at Franklin. Yet, both Seils
and Vreeland make claims against him, notwithstanding the fact that it
was Vreeland (and not Seils) who worked at Franklin. With respect to many
other individually named defendants, plaintiffs have offered no proof of
what they are alleged to have done other than that they held a particular
position at a particular time.
Accordingly, the discrimination claims against all defendants in their
individual and official capacities are dismissed.
L. Plaintiffs' Motions To Certify A Class
By motion filed October 29, 1999 (Dkt. #49), plaintiffs moved to
certify this action as a class action. By decision and order dated
November 19, 1999 (Dkt. # 55), this Court noted plaintiffs' delay in
moving for class certification, and stayed all issues related to the
motion during the pendency of defendants' motions to dismiss or for
summary judgment pursuant to Rules 12 or 56 of the Federal Rules of Civil
Procedure. Notwithstanding this Court's order, plaintiffs again moved to
certify the action as a class action. (Dkt. #s 128-130).
As I alluded in this Court's November 19, 1999 decision and order,
motion for class action status (Dkt. #49)*fn17 is
untimely in light of the proscription in Rule 23(d) of the Local Rules of
Civil Procedure for this Court that such motion be made "[w]ithin 120
days after the filing of a pleading alleging a class action." Well over a
year passed between the filing of plaintiffs' initial pleading alleging a
class action and plaintiffs' motion for class certification. By virtue of
Local Rule 23(g), plaintiffs' failure to move in a timely fashion is
deemed an intentional abandonment and waiver of all class action
allegations. Plaintiffs' subsequent motion for the same relief does not
cure the fact that the request was untimely.
Moreover, plaintiffs have never demonstrated any entitlement to
maintain this action on behalf of a class. To the contrary, by virtue of
the very individual claims alleged by Seils and Vreeland, there is no
commonality to any questions of law or fact and the unique claims of
Seils and Vreeland are not typical of the claims of any purported class.
See FED. R. CIV. P. 23(a).
In any event, there can be no class where there remain no plaintiffs.
Because defendants have been awarded summary judgment, plaintiffs'
motions to certify are, in all respects, denied.
M. Plaintiffs' Cross-Motions to Amend
Although Rule 15(a) provides that leave to amend a pleading "shall be
freely given when justice so requires," a court may deny leave to amend
where the amended pleading is considered futile. Foman v. Davis,
371 U.S. 178, 182 (1962); John Hancock Mut. Life Ins. Co. v. Amerford
Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) ("[u]ndue delay and futility
of the amendment, among other factors, are reasons to deny leave");
Picotte v. Community Child Care Ctr., 901 F. Supp. 588, 596 (W.D.N.Y.
1995) (leave to amend may be denied when the amended pleading is
considered futile). "An amendment is considered futile if the amended
pleading fails to state a claim or would be subject to a motion to dismiss
on some other basis." McNally v. Yarnall, 764 F. Supp. 853, 855
In the case at bar, the complaint has been amended once already.
Moreover, a prior cross-motion to amend by plaintiffs in this case (Dkt.
#33) was denied, in part, because their cross-motion lacked any proposed
amendment or even any detailed explanation of how any amendment would
state a valid claim for relief. Once again, plaintiffs' present
cross-motions to amend lack any proposed amendment or any detailed
explanation of how any amendment would state a valid claim for relief. In
fact, plaintiffs offer nothing more than the following on this issue :
"Pursuant to Rule 15, should the court for any reason conclude that any
allegation and/or claim is insufficiently pleaded, it should grant leave
to amend." Affs. of Emmelyn Logan-Baldwin, Dkt. Nos. 190, 199, p. 38.
Based upon that single sentence, it appears that plaintiffs expect this
court to divine the amendments plaintiffs may seek and give instructions
accordingly. That, of course, is not how a proper motion to amend
made. Most importantly, however, no possible amendment could cure the
procedural and substantive defects discussed herein. This case has been
pending for several years, and, presumably, plaintiffs have marshaled
their most compelling proof on the issues before the Court. For these
reasons, plaintiffs' cross-motions to amend (Dkt. #s 186 and 196) are in
all respects denied.
N. Plaintiffs' Renewed Cross-Motions for Partial Summary Judgment
and Injunctive Relief
This Court denied plaintiffs' motions for partial summary judgment and
injunctive relief on August 3, 2000. Plaintiffs have advanced no new
evidence in support of their renewed motions. Indeed, their present
cross-motions are virtually identical to their prior motions that this
Court previously denied. Plaintiffs' cross-motions for partial summary
judgment and injunctive relief (Dkt. #s 186 and 196) are, therefore,
The motions of the Rochester City School District for summary judgment
(Dkt. #s 150 and 158) are granted, and the complaint and each and every
one of plaintiffs' claims are dismissed with prejudice. Plaintiffs'
motions to certify this action as a class action (Dkt. #s 128 and 49)
are, in all respects, denied. Plaintiffs' cross-motions to modify or
amend this Court's prior decisions, orders, and judgments (Dkt. #s 186
and 196) are, in all respects, denied. Plaintiffs' renewed cross-motions
for partial summary judgment, injunctive relief, and to amend the
complaint (id.) are, in all respects, denied. Plaintiffs'
discovery-related cross-motions (id.) are denied as moot.
IT IS SO ORDERED.