plaintiff has the
burden of showing that there was not a bona fide financial reason to
abolish his position, or that a financial saving was not accomplished by
the elimination of the position, or that another person was hired in his
place, or some other indicia of bad faith."). In order to sue for failure
to obtain a hearing on allegations of bad faith, however, employees must
either request a hearing, Dwyer v. Regan, 777 F.2d at 833, or have good
cause for not doing so. E.g., Cifarelli v. Village of Babylon,
894 F. Supp. 614, 621 (E.D.N.Y. 1995), aff'd 93 F.3d 47 (2d Cir. 1996)
(acknowledging that plaintiff failed timely to request hearing as
required by Dwyer but noting that notice of several hours was hardly
sufficient time to make such request and that requirement would therefore
Thus the defendants argue that Brennan was terminated because her
position was eliminated for budgetary concerns and that, even if she
alleges that such elimination was a sham, she failed to request a hearing
in a timely manner and thus now has no due process right to a hearing.
There is one problem with this argument, albeit one that the defendants
call a "hyper-technical distinction." (Defs.' Reply at 5.) Brennan's
complaint alleges that she was fired on August 30, 2002 — four days
prior to the September 3 hearing at which her position was eliminated.
The defendants attempt to argue that Brennan was merely informed on
August 30 that she could (or would) be terminated, effective September
2, 2002, due to the restructuring. They point to a letter dated September
4, 2002, which is referred to in the Complaint, in which Brennan was
informed that she had been terminated effective September 2, 2002. The
defendants have at most raised an issue of fact, particularly given the
jarring circumstances of the defendants' revelations to Brennan on August
30. At the time, she was unceremoniously asked to leave the building at
once and all of her Department items (identification, pass and keys) were
taken from her prior to her departure on that day. She also claims that
her subordinates were informed on that day that she was fired. As a
result, for the purposes of this motion and drawing all inferences in
Brennan's favor, it must be assumed that Brennan was fired on August 30,
2002, prior to the elimination of her position. Brennan therefore appears
to have been entitled to the procedures outlined under § 75(2), and
was not given adequate notice or an opportunity to be heard. Further, as
in Cifarelli, because Brennan was given scant notice of her termination,
it is inequitable to expect that she would request a hearing on the spot
while she was allegedly collapsing in the office and having her
belongings taken from her.
Therefore, while Brennan's job title may have been "abolished solely
for purposes of efficiency," effective September 3, 2002, Brennan was
apparently fired prior to this determination by the Council — a
situation that begs the question of what proper cause the Department had
and why Brennan was not given the requisite notice and opportunity to
respond provided for in Section 75(2).
As a result, the defendants' arguments are unavailing at this time,
given the strictures of Rule 12(b)(6).
For the foregoing reasons, the defendants' motion is granted in part
and denied in part. Counts I and III are dismissed as to all defendants
but the City. Counts II and IV are dismissed inasmuch as they are
premised on purported violations of Title VII.
It is so ordered.