United States District Court, E.D. New York
February 24, 2004.
JAMES HODGE, Plaintiff, -against- CITY OF LONG BEACH, EUGENE CAMMARATO, EDWARD EATON, and LAWRENCE WALLACE, Defendants
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
Defendants the City of Long Beach, Eugene Cammarato, Edward Eaton and
Lawrence Wallace move, pursuant to the Federal Rules of Civil Procedure,
to dismiss the Second Amended Complaint filed against them by James
Hodge. Defendants allege that the Court lacks subject matter
jurisdiction, and that the Complaint fails to state a claim upon which
relief may be granted. The Court heard oral argument on August 29, 2003.
For the following reasons, Defendants' motion to dismiss the Complaint
pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject matter
jurisdiction, is DENIED, and Defendants' motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(6), for failure to state claims upon which relief
may be granted, is also
A. Procedural History
This is Defendants' second Rule 12(b) motion. Defendants' first motion
was scheduled for oral argument on April 12, 2003, at which time the
Court gave the parties time to review the motion in light of the Supreme
Court's decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002).
The Court then heard Defendants' motion on May 16, 2003, and both granted
dismissal and gave Hodge leave to file another amended complaint. Hodge
filed his Second Amended Complaint on June 11, 2003, and alleged
violations of Sections 1981, 1983, 1985, 1986 and 2000d of Title 42 of
the United States Code, and of the Civil Service and Executive Laws of
New York State. Hodge seeks $80,000,000 in damages. Defendants again move
to dismiss under Rules 12(b)(1) and 12(b)(6).
B. Factual History
Hodge is a black male who resides in Long Beach, New York. The City of
Long Beach ["the City"] hired Hodge in 1991. James Cammarato is the
City's Director of Operations and leader of the Long Beach Democratic
Party. Edward Eaton is the City Manager and a Democratic Committeeman.
Wallace is the City's Animal Commissioner. See Second Amended Complaint
at ¶¶ 7-11.
In 1999, Hodge received appointment to the Nassau County Democratic
Committee. That same year, the City named Hodge the City's Assistant
Animal Warden. In this position, Hodge earned a salary at a pay scale of
Grade 8, Step 2. On August 30, 2001, Cammarato authorized the City's
payroll department to "increase in pay out of title as Assistant Animal
Warden" Hodge's salary. Hodge's pay became that of Grade 11, Step 4.
See id. at ___ ¶ 13-17.
In August 2001, the City's Democratic Party establishment decided to
support Thomas DiNapoli as a candidate for the office of Nassau County
Executive. Hodge, however, decided to publicly support Thomas Suozzi for
the same position.*fn1 Although a registered Democrat, Hodge also
supported Republican candidates for the City Council in that election.
See id. at ___ ¶ 18-20.
Hodge alleges that in response to his political actions, he was
"harassed" by the individually-named Defendants. For example, in a
September 16, 2001, meeting between Hodge and Cammarato, the latter
allegedly told Hodge, "How dare you oppose me? I gave you a raise. I can
take everything away from you. I took care of you. I made you. I took you
off the streets and I took care of everything at the Animal Shelter."
Similar incidents of alleged harassment are alleged to have been
perpetrated upon Hodge by Cammarato and the other Defendants. See
id. at ___ 28.
On November 7, 2001, after the City Council election, Cammarato reduced
Hodge's salary from Grade 11, Step 4 to Grade 10, Step 2. Hodge also
alleges that Cammarato "constructively demoted" him to his former
position of Animal Control Officer, in that Cammarato refused to finalize
Hodge's temporary promotion to Assistant Animal Warden. On February 11,
2002, due to continuing incidents of alleged harassment, many of which
concluded by Hodge calling for the assistance of paramedics and police
officers, Hodge requested a medical leave to seek treatment for a severe
stress disorder. See id. at ¶¶ 46-49; Defendants' Memorandum of Law in
Support of their Motion to Dismiss at 1.
A. FED. R. CIV. P. 12(b)(1)
Dismissal for lack of subject matter jurisdiction is appropriate only
when a federal district court lacks the statutory or constitutional power
to adjudicate the dispute before it. See Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000). Jurisdiction on the basis of the
existence of a federal question is found when a federal law creates a
complaint's claim, or when a plaintiff's right to relief depends upon the
resolution of a question of federal law. See Greenberg v. Bear, Stearns
& Co., 220 F.3d 22, 25 (2d Cir. 2000).
Hodge's Second Amended Complaint alleges that Defendants reduced his
pay and demoted him because of his race, and because of the content of his
political speech and the nature of his political associations. See
Complaint at ¶¶ 2, 28 (the latter paragraph stating that "statements and
threats were leveled against [Hodge] as an African-American and
representative of the African-American community who sought to exercise
his freedom of speech"). These claims clearly implicate the First and
Fourteenth Amendments of the United States Constitution and, as such,
invoke federal jurisdiction. See Vezzetti v. Pellegrini, 22 F.3d 483,
486-87 (2d Cir. 1994). Defendants' motion to dismiss Hodge's Complaint
pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject matter
jurisdiction, is accordingly DENIED.
B. FED. R. CIV. P. 12(b)(6)
When considering a motion to dismiss a complaint for failure to state a
claim upon which relief may be granted, courts must assume all
allegations in the complaint to be true. See Chance v. Armstrong,
143 F.3d 698, 701 (2d Cir. 1998). The Plaintiff's complaint must not be
dismissed unless "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief."
Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M.
Baruch College, 835 F.2d 980, 982 (2d Cir 1984). This standard is
"applied with particular strictness when the plaintiff complains of a
civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
(i) Hodge's Claims
Hodge's Complaint seeks to recover damages under 42 U.S.C. § 1981,
1983, 1985, 1986, and 2000d; and also under N.Y. CIV. SERV. § 80 and
N.Y. EXEC. § 296.
Section 1981 provides that all persons shall have the same right to the
equal benefit of all laws for the security of persons and property as is
enjoyed by white citizens. See 42 U.S.C. § 1981.
Section 1983 provides that every person who, under color of law,
subjects any citizen to the deprivation of Constitutional or statutory
rights, shall be liable
to the injured party. See 42 U.S.C. § 1983. Hodge claims that Defendants
deprived him of rights under the First and Fourteenth Amendments. See
Complaint at ¶¶ 84-85; see also U.S. CONST. AMENDS. I and XIV (providing
that Congress shall make no laws abridging the freedom of speech, or the
freedom to peaceably to assemble and petition the government for a
redress of grievances, and that no governmental subdivision shall deprive
any person of liberty without due process of law, or deny any person the
equal protection of the laws).*fn2
Section 1985 provides that if persons conspire to deprive any person
the equal protection of the laws, the injured party may recover damages.
See 42 U.S.C. § 1985.
Section 1986 provides that every person who has knowledge of a §
1985 conspiracy, and has the power to prevent its commission but neglects
to do so, is liable to the injured party if the act is committed.
See 42 U.S.C. § 1986.
Section 2000d provides that no person shall be subjected to
discrimination under any federally-assisted program on the grounds of
race. See 42 U.S.C. § 2000d.
Section 80 provides that there must be a good faith basis for adverse
employment actions taken against civil servants. See N.Y. CIV. SERV. §
Section 296 provides that it is an unlawful employment practice to
discriminate against an individual in compensation, or in terms,
conditions or privileges of employment, on the basis of race. See N.Y.
EXEC. § 296.
(a) RACIAL DISCRIMINATION
Defendants argue, inter alia, that none of the employment actions
involving Hodge "are alleged to have occurred in circumstances giving
rise to an inference of discriminatory intent," and that the "the adverse
employment decision must be motivated at least in part by a
discriminatory or retaliatory reason." Yet
Nowhere does [Hodge] make allegations of treatment
different from similarly situated employees who were
not members of his protected class. Nor does he allege
that he was subjected to racially or ethnically based
comments of criticisms . . . the alleged incidents
that form the basis of [Hodge]'s complaint either
individually of collectively lack any indicia or
Defendants' Memorandum at 11.
Hodge responds that his claim passes the four-part test for racial
discrimination in employment set forth in McDonnell Douglas Corp. v.
411 U.S. 792 (1973), and its progeny namely, that (1) Hodge is a member
of a protected class, (2) Hodge was performing his job satisfactorily,
and yet (3) Hodge suffered an adverse employment action, under (4)
circumstances giving rise to an inference of discrimination. See
Plaintiff's Memorandum in Opposition to Defendants' Second Motion to
Dismiss at 11; see also McDonnell Douglas, 411 U.S. at 803.
Hodge is a member of a protected class. It is not in dispute that Hodge
performed his job in a satisfactory manner. And Hodge's Complaint sets
forth a claim that he suffered an adverse employment action. However, the
question remains as to whether the circumstances in which Hodge may have
suffered this adverse employment action give rise to an inference of
Hodge's 122-paragraph Second Amended Complaint contains but a single
mention of possible racial animus. See ¶ 32 (alleging that one Defendant
alleged bigotry on the part of another Defendant). And the Court is
mindful of the standard that a plaintiff alleging racial discrimination
must do more than assert conclusory allegations (see Watts v. Dep't of
Juvenile Justice, 2003 U.S. Dist. LEXIS 21035 at *8 (S.D.N.Y. Nov. 20,
2003) (relying upon Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir.
1994)). However, Hodge has the right to discover and present further
evidence of race-based discrimination. In light of the strictness that
applies to analyses of
complaints of civil rights violations, dismissal is inappropriate.
Defendants' motion to dismiss Hodge's Complaint pursuant to FED. R.
CIV. P. 12(b)(6), for its failure to state claims of unlawful racial
discrimination upon which relief may be granted, is DENIED.
(b) FREE SPEECH AND FREE ASSOCIATION
Defendants argue that Hodge fails to show that he suffered for the
exercise of his First Amendment rights because Hodge's "desire to
continue working out of title" was not "constitutionally protected
conduct," and because Hodge "offered no evidence to show that any of the
Defendants' actions were motivated by his alleged political actions. . .
." Defendants' Memorandum at 13, 18.
Hodge responds that his Complaint "is replete with facts that clearly
allege Defendants' discriminatory and retaliatory actions against [Hodge]
on account of his race and his political beliefs and affiliations."
Hodge's Memorandum at 15.
The Complaint makes plain that Hodge advocated on behalf of Democratic
County Executive candidate Suozzi, and also for Republican City Council
candidates. See Complaint at ¶¶ 19, 20, 22. Hodge alleges that he was
a result. For example, Hodge's supervisor is alleged to have stated that
he was pressured "to find something on" Hodge, and that "it's because of
the election that they are doing this to you." Id. at ¶ 35. Even an
ambulance attendant is alleged to have said to Hodge, while he was being
treated for heart palpitations and weakness after a confrontation with
local officials, "Why did you change parties?" Id. at 44. Hodge's
sister's apartment in public housing, and Hodge's job and salary, were
allegedly threatened on the basis of Hodge's electioneering activities.
See id. at ¶¶ 24, 32, 39.
Hodge's Complaint clearly succeeds in alleging that Defendants
discriminated against him in retaliation for Hodge's exercise of free
speech and free association rights. Hodge's Complaint implicates core
political speech and political association interests that lie at the
heart of the First Amendment. As such, dismissal of these claims, without
further discovery, is inappropriate.
As the United States Supreme Court observed in Rutan v. Republican
Party of Illinois, 497 U.S. 62 (1990), the "First Amendment prevents the
government, except in the most compelling circumstances, from wielding
its power to interfere with its employees' freedom to believe and
associate." Id. at 78. The government must have "a vital interest in
doing so" for such activity to pass constitutional muster. It is not
clear that the City had such a compelling and vital interest in ensuring
purity and partisan loyalty of its animal control officers and assistant
Defendants' motion to dismiss Hodge's Complaint pursuant to FED. R.
CIV. P. 12(b)(6), for its failure to state claims of free speech and free
association violations upon which relief may be granted, is DENIED.
(c) N.Y. CIV. SERV. § 80
Hodge's Complaint raises questions amenable to discovery pertaining to
Defendants' good faith regarding the adverse employment action Hodge is
said to have suffered. Defendants' 12(b)(6) motion is DENIED as to
Hodge's claims under N.Y. Civ. Serv. § 80.
(ii) Defendant's remaining arguments
Defendants further argue that Hodge did not actually suffer an adverse
employment action, that Hodge failed to exhaust his administrative
remedies pursuant to the relevant Collective Bargaining Agreement
["CBA"], and that the individually-named Defendants are cloaked in
qualified immunity. See Defendants' Memorandum, passim.
Defendants' argument that Hodge's "constructive demotion" from his
temporary appointment as Assistant Animal Warden back to Animal Control
Officer may not be an actionable adverse employment action, especially as
he is currently on medical leave, is worthy of consideration. However,
for purposes of this motion to
dismiss, Hodge's uncontested allegation that his pay was reduced
from Grade 11, Step 4 to Grade 10, Step 2 is enough to show such adverse
Defendants' argument that the CBA bars Hodge's complaints of violations
of his constitutional rights is unavailing. Hodge does not merely allege
adverse employment actions, he alleges that these actions took place as
part of a conspiracy to deprive him of his civil rights under the color
of law in violation of the First and Fourteenth Amendments. A CBA cannot
bar the door to a federal court under such circumstances.
Finally, Defendants' argument that the individually-named defendants
possess qualified immunity is also unavailing, as individuals may be sued
in their personal capacities under 42 U.S.C. § 1983 et seq.
For the foregoing reasons, Defendants' motion to dismiss Hodge's
Complaint pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject
matter jurisdiction, is DENIED. Defendants' motion to dismiss Hodge's
Complaint pursuant to FED. R. CIV. P. 12(b)(6), for its failure to state
claims upon which relief may be granted, is also DENIED.