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ISLAMIC SOCIETY OF FIRE DEPT. PERS. v. CITY OF NEW YORK

June 11, 2002

ISLAMIC SOCIETY OF FIRE DEPARTMENT PERSONNEL AND KEVIN JAMES, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
V.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: I. Leo Glasser, District Judge

  MEMORANDUM & ORDER

BACKGROUND

The Islamic Society is a non-profit, fraternal membership organization incorporated and existing under New York law. (See Proposed Sec. Am. Compl. ¶ 20.) The Islamic Society is a "line organization" of the Fire Department of the City of New York ("FDNY"). (Pl. Mem. at 2.)*fn2 Members of the Islamic Society are current and former personnel of the FDNY who are "primarily of the Islamic faith." (Id.) The Islamic Society was formed in 1997 to "represent Muslim FDNY employees and act as an interface between the FDNY and the Muslim community in New York City." (Id.) Plaintiff James is a founding member, and the current President, of the Islamic Society, and is a Fire Marshal with the FDNY. (14. ¶ 24.)

Plaintiffs allege that the City Defendants — which include the City, the former Mayor and various senior FDNY personnel — have engaged in a "longstanding pattern" of discrimination against Muslim employees of the FDNY. This purported discrimination allegedly includes, among other things, having denied the Islamic Society the same privileges granted to other line organizations (see Pl Mem. at 2); refusing to appoint a Muslim chaplain (see id.); and retaliating against Muslim employees who have complained about this alleged discrimination (see id.).*fn3

On June 23, 2000, Plaintiffs commenced this purported class action to remedy the alleged discrimination. At that time, Plaintiffs also sought a mandatory injunction compelling the City Defendants to appoint a Muslim chaplain in the FDNY. (See Perry Aff. ¶ 4.) At an initial status conference, Plaintiffs agreed to limit the initial discovery in this case to class certification issues and Plaintiffs' preliminary injunction motion. (Id.)

In June of 2001, the FDNY apparently decided to hire a Muslim chaplain. (See id. ¶ 7.) Once advised of the FDNY's decision, Plaintiffs agreed (i) not to seek class certification, (ii) to stay all discovery, and (iii) to attempt to resolve the remaining issues in this case. (See id. ¶ 8.) Plaintiffs and the Majlis Ash-Shura (the Islamic Leadership Council of New York City) then recommended that Imam Muhammad Abdulmalik be given the chaplain job. (See id.) The FDNY agreed to interview Imam Abdulmalik. (See id.)

However, Plaintiffs allege that by the time the FDNY actually interviewed Imam Abdulmalik (in August 2001), the FDNY had already decided to hire Dr. Abd'allah A. Adesanya as the Muslim chaplain. (See id. ¶ 10, 13-14.) In doing so, Plaintiffs contend that the FDNY "departed from its usual practice of deferring to the leadership of the respective religious communities in New York City when selecting chaplains of the respective faiths." (Id. ¶ 12.) Furthermore, Plaintiffs assert that Dr. Adesanya's credentials "pale in comparison to Imam Abdulmalik's" (id. ¶ 14), and that the EDNY has proffered no reason why Dr. Adesanya was chosen over Imam Abdulmalik (id.).

In light of these events, Plaintiffs now seek leave to amend their complaint to add four new claims against the City Defendants, each of which is based on the decision not to hire Imam Abdulmalik as the FDNY's Muslim chaplain. In the first claim (referred to hereinafter as "Proposed Claim 1"), Plaintiffs allege that, in rejecting Imam Abdulmalik as the Muslim chaplain, the City Defendants discriminated against them based on their religion, in violation of Title VII. In the second claim ("Proposed Claim 2"), Plaintiffs allege that the City Defendants, in violation of Title VII, refused to hire Imam Abdulmalik in retaliation for Plaintiffs' decision to (i) bring this lawsuit and (ii) publicly criticize the FDNY's decision to hire Edward McMellon.*fn4 The third claim ("Proposed Claim 3") is based on the same allegations as the second claim, but alleges a violation of the First Amendment instead of Title VII. In the fourth claim ("Proposed Claim 4"), Plaintiffs allege that, as a result of the decision not to hire Imam Abdulmalik, the City Defendants violated the First Amendment's Establishment Clause. (See Pl. Mem. at 5.)

The City Defendants oppose Plaintiffs' motion for leave to amend. According to the City Defendants, each of Plaintiffs' newly added claims fails as a matter of law, and thus the proposed amendment is futile. (See Def. Mem. at 5-11.) Specifically. the City Defendants argue that Proposed Claims 1-3 fail because (i) Plaintiffs have not suffered an "adverse employment action" due to the decision not to hire Imam Abdulmalik, and (ii) Plaintiffs cannot establish a causal connection between their protected activities and the allegedly "adverse" action. (See id. at 5-9.) The City Defendants further argue that Proposed Claim 4 fails because Plaintiffs have not suffered a "palpable injury" sufficient to establish their standing to sue under Article III of the Constitution. (See id. at 9-11.)

DISCUSSION

I. Motion to amend principles

In determining whether leave to amend should be granted, the Court should consider the futility of the proposed amendment. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962); Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). However, Second Circuit courts have also held that, in certain circumstances, it is appropriate to deny leave to amend where the proposed amendment could not withstand a motion for summary judgment. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (appropriate to deny motion for leave to amend filed in response to summary judgment motion where proposed new claims would not survive summary judgment); Heath-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (affirming district court's decision denying leave to amend complaint where facts demonstrated proposed amendments failed as a matter of law); Stoner v. N.Y.C. Ballet Co., No. 99 Civ. 0196, 2002 WL 523270, at *14 n. 10 (S.D.N.Y. Apr. 8, 2002) (denying motion for leave to amend seeking to add claim which "might survive a motion to dismiss" because "the claim would . . . be subject to dismissal on a motion for summary judgment"); 131 Maine St. Assocs. v. Manko, 179 F. Supp.2d 339, 345 n. 5 (S.D.N.Y. 2002) ("leave to amend will be denied if the proposed amended complaint ...


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