forth in Complaint
"A" fully satisfy each of these three elements (see, e.g., Item 55, ¶¶
4, 36, 64, 78-79). Similarly, the allegations set forth in Complaint "B"
are sufficient to state a claim under § 1981 (see, e.g., Item 54, ¶¶
3-4, 32-34, 54).
With respect to their § 1983 claims, plaintiffs contend that
defendants have deprived them of their constitutional right to equal
protection of the law under the Fourteenth Amendment. To establish a
§ 1983 claim based on a violation of the Equal Protection Clause, a
plaintiff must prove (1) selective treatment, compared with others
similarly situated, and (2) that the selective treatment was motivated by
an intention to discriminate on the basis of impermissible
considerations, such as race, to punish or inhibit the exercise of
constitutional rights. Knighton v. City of Syracuse Fire Dept.,
145 F. Supp.2d 217, 222-23 (N.D.N.Y. 2001). The same allegations in
Complaints "A" and "B" that support plaintiffs' § 1981 claims also
support their § 1983 claims. Both complaints are replete with
allegations that the City subjected plaintiffs to adverse selective
treatment on the basis of their race. The court is satisfied that
plaintiffs — in both complaints — have sufficiently alleged
that defendants have intentionally violated their rights under the
Fourteenth Amendment's Equal Protection Clause.
In order to state a claim under Title VII, plaintiffs must allege (1)
that they are members of a protected class, (2) satisfactory job
performance, (3) that they were subjected to adverse employment actions,
and (4) that these actions were taken under circumstances giving rise to
an inference of discrimination. See, e.g., Farias v. Instructional
Systems, Inc., 259 F.3d 91, 99 (2d Cir. 2001). As noted above in
connection with plaintiffs' § 1983 claims, both Complaints "A" and
"B" contain extensive allegations regarding the Fire Department's
discriminatory drug-testing program and promotion practices and
policies. Based on these allegations, it cannot be said to be "beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957) (quoted in Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d
Finally, in order to state a claim for conspiracy under
42 U.S.C. § 1985(3), a plaintiff must allege (1) a conspiracy (2) for
the purpose of depriving a person or class of persons of the equal
protection of the laws, (3) an overt act in furtherance of the
conspiracy, and (4) a deprivation of a plaintiff's right as a citizen of
the United States. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999). However, a "complaint containing only conclusory, vague, or
general allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss." Sommer v. Dixon,
709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857 (1983).
Plaintiffs have not sufficiently pleaded the existence of conspiracy as
part of their § 1985(3) claims. Both Complaints "A" and "B" recite a
litany of discriminatory actions and then seek to implicate all of the
named defendants by referring to them collectively in connection with
certain allegations of discriminatory conduct (see, e.g., Item 55, ¶¶
41, 54; Item 54, ¶¶ 35, 38-39). In essence, as support for their
conspiracy claim, plaintiffs rely on a series of alleged discriminatory
actions, and on the fact that there are several named defendants in each
complaint (see, e.g., Item 55, ¶¶ 64, 80; Item 54, ¶¶ 32-39, 56). This
alone is not enough to satisfy the requirement under § 1985(3) that
the plaintiff allege the existence
of a conspiracy to deprive them of
their constitutional rights. In order to claim the existence of a
conspiracy, plaintiffs must allege facts indicating the existence of an
agreement between some or all of the defendants to deprive them of their
constitutional rights, and must also allege facts showing that the
conspirators engaged in overt acts in furtherance of their agreement. See
generally Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). As
indicated above, Complaints "A" and "B" are devoid of such allegations.
Accordingly, plaintiffs' claims under § 1985(3) cannot survive the
City's motions to dismiss.
III. Punitive Damages
In the ad damnum clause, plaintiffs request an award of punitive
damages (see, e.g., Item 55, pp. 30-31). The City defendants argue that
punitive damages are not available against any of the City defendants. As
for individual defendants Keane and Sixt, the City argues that they are
immune from punitive damages to the extent that they are sued in their
official capacities. The City is correct. Municipalities and municipal
officials who are sued in their official capacities are immune from
punitive damages under the civil rights laws. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981); Deepwells Estates Inc. v.
Incorporated Village of Head of Harbor, 973 F. Supp. 338, 351 (E.D.N.Y.
1997), appeal dismissed, 162 F.3d 1147 (2d Cir. 1998); Walters v. City of
Atlanta, 803 F.2d 1135, 1148 (11th Cir. 1986).
Accordingly, the City's motions are granted to the extent they seek
dismissal of plaintiffs' claims for punitive damages against the City and
the individual City defendants sued in their official capacities.
IV. Individual Liability Under Title VII
The City also moves to dismiss plaintiffs' Title VII claims against
individual defendants Keane and Sixt. As established by the Second
Circuit in Tomka v. Seiler, 66 F.3d 1295 (2d Cir. 1995), Title VII
provides statutory remedies for employment discrimination by employers,
not by individuals. Id. at 1313-17; see also Evans v. The Port Authority
of New York and New Jersey, 2002 WL 77074, at *1 (S.D.N.Y. January 22,
2002) (individual superiors and co-workers not subject to Title VII
liability because Title VII is limited to "employers"). Accordingly, the
City's motions are granted to the extent they seek dismissal of
plaintiffs' Title VII claims brought against individual City defendants
Keane and Sixt.
V. Claims Against Fire Department
Finally, the City defendants contend that the Fire Department, as an
entity, is not susceptible to suit and must therefore be dismissed as a
defendant. The City is correct. See, e.g., Capozzi v. City of Olean,
910 F. Supp. 900, 906-907 (W.D.N.Y. 1995). Moreover, there is no need for
the Fire Department to be named as a defendant in light of the fact that
the City of Buffalo is named as a defendant. See id. Accordingly, the
City's motions are granted to the extent they seek to dismiss the Fire
Department as a defendant.
For the foregoing reasons, the City defendants' motions (Items 58 and
60) to dismiss both of the Second Amended Complaints are granted in part
and denied in part. The motions are granted to the extent that they seek
dismissal of plaintiffs' claims under § 1985, plaintiffs' claims for
punitive damages against the City and the individual City defendants sued
their official capacities, plaintiffs' Title VII claims against
individual City defendants Cornelius Keane and John Sixt, and plaintiffs'
claims against the Fire Department as a separate entity. The motions are
denied to the extent that they seek dismissal of the action for lack of
standing, and to the extent that they seek dismissal of plaintiffs'
claims under §§ 1981, 1983, and Title VII for failure to state a claim
upon which relief can be granted.
Except as otherwise set forth in this order, plaintiffs' claims against
the City defendants will survive the City's motions to dismiss.
A meeting is scheduled for Monday, April 22, 2002, at 11:30 a.m. to
discuss further proceedings in the case.