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CRUZ v. NEW YORK CITY HOUSING AUTHORITY

United States District Court, S.D. New York


September 1, 2004.

MAIDA CRUZ, Plaintiff,
v.
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 within NYCHA.*fn1

  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.

  DISCUSSION

  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 1993).

  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 law." Id.

  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 federal judges").

  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").

  CONCLUSION

  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.


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