United States District Court, S.D. New York
September 1, 2004.
MAIDA CRUZ, Plaintiff,
NEW YORK CITY HOUSING AUTHORITY, EMANUEL SANDI, ISAAC RILEY, ALVERISTA HALL, and MADELYN OLIVA, Defendants.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Maida Cruz ("Cruz") brought this action pursuant to
42 U.S.C. § 1983 against defendants New York City Housing
Authority ("NYCHA"), Emanuel Sandi, Isaac Riley, Alverista Hall,
and Madelyn Oliva (collectively "defendants"). In her complaint,
plaintiff alleges that defendants violated her procedural due
process rights by demoting her from one civil service position to
another without a hearing. Plaintiff also alleges that
defendants' deliberate indifference to her safety and health
during her employment effected a violation of the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
Defendants have moved for summary judgment seeking dismissal of
the entire complaint. For the reasons set forth below,
defendants' motion for summary judgment is granted in full. FACTS
The following facts, unless otherwise noted, are either
undisputed or interpreted most favorably to plaintiff. NYHCA is a
public benefit corporation created by the New York State Public
Housing Law for the purpose of providing "safe, decent,
affordable housing for low-income residents within the five
boroughs" of New York City. (Defs.' 56.1 ¶ 1 (citing N.Y. Pub.
Hous. Law §§ 2, 401 (McKinney 1989))). All of the named
defendants hold managerial and/or human resources positions
Cruz began her employment with NYCHA in 1991 as a
Caretaker.*fn2 (Pl.'s Mem. in Opp'n to Mot. for Summ. J. ¶
3). New York Civil Service Law classifies this position as a
"Labor Class" title. (Oliva Decl. Ex. B ¶ 1). The job description
for Caretaker provides that the employee is "[u]nder direct
supervision, maintains the grounds, buildings and public spaces
of public housing projects in proper condition." (Id.).
On April 28, 1998, the NYCHA and City Employees Union, Local
237, International Brotherhood of Teamsters ("CEU") entered into
a Collective Bargaining Agreement ("CBA") effective April 1, 1995
through March 31, 2000, which covered the rights of several
employees including Caretaker and Chief Caretaker. (Niederhoffer
Decl. Ex. A). A Memorandum of Understanding ("MOU") executed
between NYCHA and CEU on March 7, 2002, extended the CBA to
present. (Id. at Ex. B). On May 28, 2002, Cruz was appointed to the position of Chief
Caretaker at Union Consolidated Houses located in the Bronx.
(Oliva Decl. ¶ 2). Under New York law, this position is
classified as "noncompetitive," as opposed to "labor." As Chief
Caretaker, Cruz earned a "level A" salary of $34,857.00 per year.
(Id.). The general statement of duties and responsibilities
provides that the employee is "[u]nder general supervision,
serves as resident caretaker, performing routine janitorial work
and maintenance work of varying degrees of difficulty at
scattered-site developments" of the NYCHA. (Id. at Ex. E). As
resident caretaker, Cruz was entitled to occupy an apartment in
the building at a reduced rental rate of $194 a month. (Pl.'s
Mem. in Opp'n to Mot. for Summ. J. ¶ 3).
After becoming Chief Caretaker, Cruz alleges that she became
subject to harassment and threats of physical violence from Tonya
Johnson, one of the residents in the building, in February of
2002. (Pl.'s Compl. ¶ 3). Although Cruz complained to Sandi,
Riley, Hall, and Oliva about Johnson, these defendants simply
advised Cruz to file a police complaint pursuant to NYCHA's
policy and custom. (Pl.'s Mem. in Opp'n to Mot. for Summ. J. ¶
3). Consequently, Cruz filed Incident Information Slips regarding
Johnson's actions on February and 27, 2003, and March 15, 2003.
(Pl.'s Compl. ¶ 3).
On March 27, 2003, Johnson filed an allegedly false complaint
with the police and the NYCHA claiming that on March 14, 2003,
Cruz threatened her physically with a baseball bat. (Pl.'s Mem.
in Opp'n to Mot. for Summ. J. ¶ 4). Shortly thereafter, Cruz was
demoted from the Chief Caretaker title on April 1, 2003 and
reassigned to the Caretaker title without a prior hearing.
(Defs.' 56.1 ¶ 2). No reason was given for Cruz's demotion or
reassignment. (Oliva Decl. Ex. F ¶ 1). Cruz alleges that in
addition to being "essentially demoted to the role of a janitor,"
she has lost approximately $4,000 in salary and benefits. (Pl.'s Compl. ¶ 4). Moreover, Cruz must quit the
subsidized apartment she now occupies. (Waterson Affirmation in
Opp'n to Mot. for Summ. J. Ex. 6 ¶ 1).
On April 16, 2003, Oliva sent Cruz an official letter charging
her with incompetency or misconduct regarding the March 14, 2003
incident. (Id. at Ex. 4 ¶ 1). Specifically, the letter alleged
that Crux "threatened to strike resident Tonia [sic] Johnson with
a baseball bat," "improperly brandished the bat in her
direction," and "directed profane, abusive or threatening
language towards Ms. Johnson." (Niederhoffer Supplemental Decl.
Ex. A ¶ 1). A disciplinary hearing was held on these charges on
May 6 and 19, 2003. (Id.) Cruz and Johnson gave conflicting
testimony as to who threatened whom. (Id. ¶¶ 1-3, 7-9).
The hearing officer concluded that Johnson's testimony was "not
persuasive" and failed to establish that Cruz threatened to
strike Johnson and brandished a bat in her direction. (Id. ¶
10). However, the hearing officer found that "[d]espite Tonya's
aggressive behavior, [Cruz], as an employee, had the obligation
to avoid conflict with Tonya, a resident." (Id.). Based on this
finding, the hearing officer determined that Cruz's behavior
"amounted to a failure to conform to the ordinary standards of
behavior that the [NYCHA], as an employer, had a right to expect,
and violated [NYCHA's] policy against violence and threats of
violence in the workplace." (Id.)
As a result of these hearings, Cruz faced a 30-day suspension,
ten days of lost wages, and an eviction from her subsidized
apartment because she was no longer Chief Caretaker. (Pl.'s
Compl. ¶ 6). Cruz nevertheless maintains that her performance as
Chief Caretaker has been "fully satisfactory at all relevant
times," (Id. ¶ 2), and for the purposes of the instant motion, the Court must assume this to be so.
Moreover, it is undisputed that Cruz was demoted from the Chief
Caretaker title prior to the disciplinary hearings.
Based on these facts, Cruz has asserted two causes of action:
that her demotion prior to the hearing was a violation of her
procedural due process rights; and that the NYCHA's failure to
protect her from a belligerent tenant was a violation of her
substantive due process and equal protection rights.
I. The Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." R.B. Ventures, Ltd. v. Shane,
112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R. Civ. P. 56(c)). In
reviewing the record, the district court must assess the evidence
in "the light most favorable to the non-moving party," resolve
all ambiguities, and "draw all reasonable inferences" in its
favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728
(2d Cir. 1994); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986).
An alleged factual dispute between the parties will not by
itself defeat a motion for summary judgment, since "the
requirement is that there be no genuine issue of material
fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In
order to defeat such a motion, the non-moving party must
affirmatively set forth facts showing that there is a genuine
issue for trial. Id. at 256; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Specifically, the
non-moving party cannot rely on mere allegations, denials,
conjectures or conclusory statements, but present affirmative and
specific evidence showing that there is a genuine issue for
trial. See Anderson, 477 U.S. at 256-57; Gross v. Nat'l Broad.
Co., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). "A fact issue is
`genuine' if `the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'" Mitchell v. Shane,
350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson,
477 U.S. at 248). "A fact is `material' if it might affect the outcome of the
suit under governing law." Id. (quoting Anderson,
477 U.S. at 248).
II. The Merits of Cruz's § 1983 Claims
A. Procedural Due Process Claim
Cruz alleges she was deprived of her procedural due process
rights, a violation of 42 U.S.C. § 1983, when defendants demoted
her from the Chief Caretaker title to Caretaker title without a
meaningful opportunity for a hearing. A state employee that has
been terminated or demoted without a hearing may assert in
certain circumstances a claim pursuant to § 1983 on the ground
that she has been deprived of a constitutionally protected
property interest (her job, rank, or position) without due
process of law in contravention of the Fourteenth Amendment. See
42 U.S.C. § 1983 (1996); Bernheim v. Litt, 79 F.3d 318, 323 (2d
Cir. 1996). The threshold question in determining the adequacy of
this claim is whether Cruz "has alleged a state law property
interest" in her position as Chief Caretaker. Ciambriello v.
County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). In order to
"have an interest protectable under the Constitution, a person
must have a `legitimate claim of entitlement to it.'" Abramson
v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (quoting Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). In other
words, an "abstract need, desire, or unilateral expectation [of
employment] is not enough." Id. Such a constitutionally
protectible property interest is typically established by a
showing that under the provisions of a statute or collective
bargaining agreement, the employee cannot be terminated or
demoted without a hearing and only upon a showing of cause.
Ciambriello, 292 F.3d at 313-14. In the present case, since
Cruz was demoted and not fired, she must demonstrate a property
interest in the Chief Caretaker title in particular by showing,
for example, that the state civil service law or her collective
bargaining agreement required that a hearing be held prior to her
demotion. Id. at 313.
Cruz first asserts that New York Civil Service Law § 75
("Section 75") creates a legitimate property interest in the
Chief Caretaker title. Section 75 states in relevant part:
A person . . . shall not be removed or otherwise
subjected to any disciplinary penalty provided in
this Section except for incompetency or misconduct
shown after a hearing upon stated charges pursuant to
this Section [if that person is] an employee holding
a position in the non-competitive class . . . who
. . . has completed at least five years of
continuous service . . .
N.Y. Civ. Serv. Law § 75(1)(c) (McKinney 1999) (emphasis added).
The Second Circuit has repeatedly stated that Section 75 "gives
covered employees a property interest in their employment, so
that they may not be terminated without notice and hearing."
Ciambriello, 292 F.2d at 314 (quoting O'Neill v. City of
Auburn, 23 F.3d 685
, 688 (2d Cir. 1994)). Thus, the issue is
whether Section 75's protection extends to Cruz. The facts demonstrate that the Chief Caretaker title qualifies
within the "noncompetitive" class. However, it is also undisputed
that Cruz held the position of Chief Caretaker from May 28, 2002
until April 1, 2003. Clearly, this period is less than the
statutory requirement of "at least five years of continuous
service" enunciated in Section 75. Accordingly, Cruz fails to
satisfy Section 75's requirements necessary to establish civil
service tenure that would have given her a cognizable property
interest in the Chief Caretaker title. See Goetz v. Windsor
Central School District, 698 F.2d 606
, 608 (2d Cir. 1983)
(plaintiff with less than five years' experience under Section 75
held position terminable at will); Luck v. Mazzone,
52 F.3d 475, 477 (2d Cir. 1995) (plaintiff secretary lacking state civil
service tenure could not sustain procedural due process claim);
Abramson, 278 F.3d at 98 ("[e]mployees at will have no
protectible property interest in their continued employment").
Cruz alternatively asserts that even if Section 75 is
inapplicable to her claim, the CBA and MOU, read together, create
property interests in addition to any rights provided by Section
75. Statutory rights may, in fact, be "modified or replaced by a
collective bargaining agreement" and thereby create a property
interest in a position protectible under § 1983 and the
Fourteenth Amendment. Ciambriello, 292 F.3d at 314 (quoting
N.Y. Civ. Serv. L. § 76(4) (McKinney 1999)) (clause in collective
bargaining agreement specifically replaced Section 75 rights).
The Second Circuit has firmly established that a collective
bargaining agreement may create property interests in continued
employment if it guarantees that employees cannot be discharged
without cause. See Horvath v. Westport Library Ass'n,
362 F.3d 147, 151 (2d Cir. 2004); Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991) (collective bargaining agreement
providing that plaintiff could not be fired "without cause" created property
interest in employment); see also Ciambriello, 292 F.3d at 314.
In support of this claim, Cruz argues that paragraph 53 of the
CBA ("Paragraph 53") and paragraph 8 of the MOU ("Paragraph 8")
create a cognizable property interest in her position as Chief
Caretaker. Paragraph 53 reads as follows:
No full-time, per annum employee shall be displaced
or involuntarily separated from service during the
period from the date of execution of this Agreement
until June 30, 1998, except . . . for cause.
(Niederhoffer Decl. Ex. A ¶ 80).
Similarly, Paragraph 8 provides:
No full-time, per annum employee shall be displaced
or involuntarily separated from services during the
period of the date of execution of this MOU until
June 30, 2002, except . . . for cause. (Id. at Ex.
B ¶ 6).
Unlike Ciambriello, there is no additional clause stating that
the CBA and MOU override, and therefore, replace, any and all
"statutory and regulatory disciplinary protections." Id.; see
also Morris v. Lindau, 196 F.3d 102
, 115 (2d Cir. 1999)
(disciplinary provision in collective bargaining agreement
stating it was "in lieu of" Section 75 provision waived Section
75 rights). The issue, therefore, is whether the CBA and MOU
modify Section 75 rights in such a way as to provide Cruz with a
constitutionally protectible property interest.
The Court expresses some doubt as to whether Paragraph 53 and
Paragraph 8 were intended to deal with disciplinary issues and
removals for cause. Although the CBA and MOU categorize these
paragraphs under the header "Job Security," (Niederhoffer Decl.
Ex. A ¶ 80; Niederhoffer Decl. Ex. B ¶ 6), the provisions that
deal explicitly with disciplinary matters are set forth separately in
paragraph 44 of the CBA under the header "Disciplinary
Procedures." (Id. at Ex. A ¶ 68). And while paragraph 44 of the
CBA appears to expand Section 75 rights to provisional and
probationary competitive class employees,*fn3 this
protection is nevertheless inapplicable to Cruz's noncompetitive
position as Chief Caretaker.
Furthermore, it is not clear that what happened to Cruz was a
"displacement" as contemplated by Paragraph 53. A brief survey of
New York case law regarding civil service employment reveals that
the term "displaced" refers to situations in which employees of
higher seniority are "entitled to displace employees of a similar
title who have less seniority." Bello v. Roswell Park Cancer
Inst., 199 A.D.2d 1060, 1061, 606 N.Y.S.2d 482, 483 (4th Dep't
Assuming, arguendo, that Paragraph 53 and Paragraph 8 created
a cognizable property interest that precluded the demotion of
noncompetitive class employees without a hearing, both provisions
expired prior to the date of plaintiff's demotion. By its terms,
Paragraph 53 specifically limits its applicability to
displacements occurring before or on June 30, 1998; Paragraph 8
only extends this provision to June 30, 2002. Both parties agree
that defendants demoted Cruz on April 1, 2003. Accordingly, Cruz
cannot qualify for any added protections provided in the CBA and
MOU in asserting a constitutionally protected property interest. Cruz nevertheless contends that she has an implied contractual
right rising to the level of a protected property interest in her
position as Chief Caretaker. In support, she relies on Ezekwo v.
New York City Health and Hospitals Corp., 940 F.2d 775, 783 (2d
Cir. 1991). In Ezekwo, the Second Circuit upheld plaintiff's
entitlement to the position of Chief Medical Resident where the
hospital had adopted a long-term policy of awarding the position
to all third year residents on a rotating basis. Id. at 783.
Moreover, the hospital consistently informed plaintiff that she
would become Chief Resident and receive a salary differential
from November 1987 to February 1988. Id. Given these "policies
and practices," the court concluded that "[the hospital's] course
of conduct, coupled with Ezekwo's reasonable reliance thereon,
created a contractual right that rose to the level of a
significant property interest that would be protected under state
No such practices, policies, or assurances are present in
Cruz's complaint or factual averments. As defendants point out,
Cruz "does not base on her claim of a protected property interest
in her job upon any practice or policy of NYCHA or any verbal
assurances or representations that she would remain in the Chief
Caretaker position for any length of time," as in Ezekwo.
(Defs.' Reply Mem. in Supp. of Mot. for Summ. J.). Instead,
Cruz's claim rests on her ability to show that under a state
civil service statute or collective bargaining agreement, a civil
service employee holding title in a noncompetitive class was
entitled to a hearing before removal from that title. This she
cannot do. Even assuming, arguendo, that Ezekwo applies to
this action, Cruz fails to advance any facts that raise the
inference that defendants made assurances that she would continue
in employment as Chief Caretaker unless removed for cause. The
"simple fact of employment" as Chief Caretaker and the use of
the subsidized apartment that was part of that position does not give her a claim to entitlement.
Abramson, 273 F.3d at 101.
The Court concludes that there is no genuine issue of fact such
that "`a reasonable jury could return a verdict for the nonmoving
party'" regarding Cruz's procedural due process claim.
Mitchell, 350 F.3d at 47 (quoting Anderson, 477 U.S. at 248).
It may well be that plaintiff's demotion was unfair or
precipitous; however, not every adverse employment decision by a
state employer gives rise to a constitutional violation. Luck v.
Mazzone, 52 F.3d at 477. Accordingly, summary judgment is
appropriate with respect to this claim.
B. Substantive Due Process and Equal Protection Claims
As an initial matter, the Court observes that defendants'
motion for summary judgment regarding these claims is more akin
to a motion for judgment on the pleadings pursuant to Rule 12(c).
See Fed.R. Civ. P. 12(c) ("[a]fter the pleadings are closed
but within such time as not to delay the trial, any party may
move for judgment on the pleadings.") Under Rule 56, as discussed
earlier in this opinion, the moving party must demonstrate that
there is "no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." R.B.
Ventures, Ltd, 112 F.3d at 57 (quoting Fed.R. Civ. P. 56(c)).
In contrast, a court applying Rule 12(c) must accept "the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party." Burnett
v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). Additionally,
dismissal of the complaint is only appropriate if "`it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Here, defendants' Local Rule 56.1 statement does not mention
any facts whatsoever related to the substantive due process or
equal protection claims. Instead, defendants simply contend that
Cruz's complaint, "fairly read," is "not cognizable under the Due
Process Clause [or Equal Protection Clause] of the Fourteenth
Amendment." (Defs.' Reply Mem. in Supp. of Mot. for Summ. J. ¶¶
6-7). In their reply memorandum, defendants reiterate that
"[p]laintiff's allegations do not state a viable due process of
equal protection claim under 42 U.S.C. § 1983 even if, as
plaintiff alleges, the employer-defendants had knowledge of
harassment and threats of physical harm to her in the course of
her employment." (Id. ¶ 5 (emphasis added)). Defendants
therefore appear to argue that Cruz's complaint is defective on
its face, such that Cruz "can prove no set of facts in support of
[her] claim that would entitle [her] to relief." Burnett,
192 F.3d at 56 (internal citation omitted). Accordingly, the Court
will evaluate Cruz's due process and equal protection claims
against Rule 12(c)'s standard.
Cruz contends that defendants' deliberate indifference to her
complaints regarding Johnson's allegedly abusive and violent
behavior violated her substantive due process and equal
protection rights. To maintain a deliberate indifference claim
under § 1983, the complaint must go "well beyond allegations that
[defendants] merely stood by and did nothing, and that
circumstances were merely suspicious." Dwares v. City of New
York, 985 F.2d 94, 99 (2d Cir. 1993). Cruz must allege that
defendants affirmatively and knowingly created a dangerous
working environment or facilitated third party assaults on her
that otherwise would not have occurred. See, e.g., L.W. v.
Grubbs, 974 F.2d 119, 122 (9th Cir. 1992) (complaint alleged defendants' acts
"independently created the opportunity for and facilitated" third
party attack on plaintiff); Dwares, 985 F.2d at 99-100
(complaint alleged police officers "conspired with the
`skinheads'" and assured the "skinheads" they would not arrest
them); see also McKinney v. Irving Independent School Dist.,
309 F.3d 308, 313-14 (5th Cir. 2002). Indeed, "[c]omplaints
relying on 42 U.S.C. § 1983 are plainly insufficient unless they
contain at least some allegations of facts indicating that a
defendant acted under color of state law to deprive the plaintiff
of federally protected rights." Kenard v. Nussbaum, 1988 WL
25240 *3 (S.D.N.Y. Feb. 26, 1988) (citing Lugar v. Edmondson
Oil, 457 U.S. 922, 937 (1982); Fine v. City of New York,
529 F.2d 70, 73 (2d Cir. 1975)).
The Due Process Clause "does not impose an independent federal
obligation upon municipalities to provide certain minimal levels
of safety and security in the workplace." Collins v. City of
Harker Heights, 503 U.S. 115, 130, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992). Nor does the Due Process Clause "guarantee municipal
employees a workplace that is free of unreasonable risks of
harm." Id. However, in "exceptional circumstances a
governmental entity may have a constitutional obligation to
provide such protection, either because of a special
relationship with an individual . . . or because the
governmental entity itself has created or increased the danger
to the individual." Gan v. City of New York, 996 F.2d 522, 533
(2d Cir. 1993) (internal citations omitted) (emphasis added).
Although Cruz asserts that her employment at NYCHA created a
"special relationship" obligating defendants to protect her, the
Second Circuit has thus far only recognized "custodial
relationships such as a prison and inmate or a mental institution and involuntarily committed patient, and the relationship between
a social service agency and foster child" as imposing an
affirmative duty to protect on state actors. Gan,
996 F.2d at 533 (citing cases); see also White v. Lemacks, 183 F.3d 1253,
1257 (11th Cir. 1999) (the "only relationships that automatically
give rise to a governmental duty to protect individuals from harm
by third parties under the substantive due process clause are
custodial relationships.") Therefore, consensual employment
agreements do "not entitle the employee to constitutional
protection from workplace hazards" even if the government
employee "risk[s] losing her job if she did not submit to unsafe
job conditions." White, 183 F.3d at 1257.
Cruz alternatively argues that defendants created a dangerous
situation by intentionally assigning her to work near Johnson's
apartment and failing to investigate Cruz's complaints concerning
Johnson's allegedly violent behavior. Cruz does not allege that
Johnson assaulted her; only that she was harassed and threatened
by Johnson. (Pl.'s Compl. ¶ 9(c)). Furthermore, Cruz fails to
allege that defendants made her "more vulnerable to assaults."
Dwares, 985 F.2d at 99 (emphasis added); see also Hemphill v.
Scott, 141 F.3d 412, 418 (2d Cir. 1998) (officers "aided and
abetted" robbery victim by returning gun to him and driving him
to scene of arrest where victim shot alleged robber). Cruz simply
alleges that defendants' procedure for processing complaints
failed to protect her from Johnson and forced her to file a
complaint with the police. However, mere allegations of
defendants' knowledge of danger and refusal to assist plaintiff
are insufficient as a matter of law. See McKinney,
308 F.3d at 314 (defendants' knowledge of dangerous students and refusal to
assist plaintiff bus drivers who was assaulted by student did not
establish deliberate indifference); Yap v. Oceanside Union Free
School Dist., 303 F. Supp. 2d 284, 296 (E.D.N.Y. 2004) (school
district's failure to prevent other students from harming
plaintiff did not violate due process). Ultimately, no reasonable
trier of fact could find that defendants' actions in following
its procedure for processing employee complaints met the
substantive due process threshold. Collins, 503 U.S. at 129 (no
due process claim based on city's alleged failure to train or
warn sanitation worker regarding asphyxia risks in manhole did
not violate due process; "[d]ecisions concerning the allocation
of resources . . . involve a host of policy decisions that must
be made by locally elected representatives, rather than by
Similarly, Cruz fails to allege a cognizable equal protection
claim. To assert an equal protection violation, Cruz must show
she was "selectively treated compared with similarly situated
employees, and that selective treatment was based on
impermissible considerations." Knight v. Conn. Dep't of Pub.
Health, 275 F.3d 156, 166 (2d Cir. 2001) (internal quotation
mark omitted). Although Cruz suggests that she has been treated
unfairly, she fails to advance any facts showing that she was
"treated differently than other similarly situated employees" or
that any decisionmaker at the NYCHA acted with an impermissibly
discriminatory purpose. Id.; see also Thomas v. City of Mount
Vernon, 215 F. Supp. 2d 329, 335-36 (S.D.N.Y. 2002) "[t]he
disparate treatment must be motivated by an impermissible
consideration such as race, or by a malicious or bad faith intent
to injure plaintiff").
For the foregoing reasons, defendants' motion is hereby GRANTED
in its entirety, and all claims are dismissed. The Clerk of the
Court is directed to close this case. SO ORDERED.