United States District Court, S.D. New York
August 10, 2005.
MARGARET DOLSON, Plaintiff,
VILLAGE OF WASHINGTONVILLE, STEPHEN PASCAL, CHIEF OF POLICE, sued in his individual capacity, Defendants.
The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT PASCAL'S MOTION
FOR SUMMARY JUDGMENT ON THE GROUND OF QUALIFIED IMMUNITY
Margaret Dolson was a dispatcher with the Police Department in
the Village of Washingtonville. She alleges that
Washingtonville's Chief of Police, Stephen Pascal, discriminated
against her at work by favoring a white dispatcher and,
ultimately, by firing plaintiff because she is black. Among her
other allegations, plaintiff contends that Pascal permitted the
white dispatcher, Maria Fleming, to miss work without
consequence; to be given responsibility for training new
dispatchers; and to be given overtime opportunities. Plaintiff
also contends that Chief Pascal attempted to change her job title
so he could alter her shift and charged her for being late
without so charging white employees. Finally, plaintiff complains
that she was suspended for unauthorized use of the New York State
Penal Information Network (NYSPIN) system, an activity that
plaintiff alleges is "commonplace" among other employees, and
that the conditions imposed during her suspension were not
imposed on a white police officer who was suspended after
allegations that he had sex with a minor. Ultimately (after she
filed the instant complaint), plaintiff was fired from her job,
allegedly due to her use of the NYSPIN system. The instant
complaint was filed before plaintiff was fired and does not
allege that her firing was on account of her race (although I
gather that plaintiff's attorney may pursue such a theory if
so, he had better move for leave to amend his complaint).
There are two motions before the court: a motion by both
defendants to dismiss the complaint pursuant to Rule 12(b)(6) for
failure to state a claim, and a motion by Pascal to dismiss the
complaint as against him on the ground of qualified immunity.
Failure to Plead a Prima Facie Case Defendants' notice of motion invokes Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which permits the dismissal of
a complaint for failure to state a claim upon which relief can be
granted. However, a Rule 12(b)(6) motion is a pre-answer motion.
Defendants have filed their answer. They should have invoked Rule
12(c), for judgment on the pleadings.
The standards used in deciding a motion for judgment on the
pleadings are identical to those used on a Rule 12(b)(6) motion.
The standard of review is heavily weighted in favor of the
plaintiff. The Court is required to read a complaint generously,
drawing all reasonable inferences from the complaint's
allegations in the plaintiff's favor. California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972). "In ruling
on a motion to dismiss for failure to state a claim upon which
relief may be granted, the court is required to accept the
material facts alleged in the complaint as true." Frasier v.
General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The
Court must deny the motion "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." Stewart v. Jackson & Nash,
976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)).
I cannot say, after reviewing the complaint in this
action,*fn1 and drawing all inferences in favor of the
plaintiff, that she has failed to state a claim for race
discrimination in the terms and conditions of her employment.
Therefore, defendant is not entitled to judgment on the
The complaint alleges that defendant, who is the only black
employee of the Police Department and has been the only such
employee since 1991, was subjected to disparate treatment from
other (white) employees in a number of respects: she was
disciplined for missing work when a white employee was permitted
to take time off for the same reason without being disciplined;
she was not allowed to train new dispatchers (a duty she had been
performing for some years) and that duty was given to a white
dispatcher; she was denied opportunities for overtime work that
were given to white dispatchers; she was treated differently than
white employees when she was suspended and subjected to charges
for allegedly misusing the Police Department's NYSPIN system; she
was suspended for alleged misconduct when a white officer accused
of more serious misconduct was not suspended. The complaint,
fairly read, seems also to allege that Dolson was subjected to a
hostile work environment in several respects. At the pleading
stage, the complaint is sufficient. It sufficiently alleges that
she suffered adverse employment actions (discipline, lack of
opportunity to earn overtime pay, removal of longstanding duties;
harassment/hostile work environment) and that white employees who
are similarly situated did not suffer the same adverse employment
actions. At the pleading stage, no more is required. Whether
those allegations will stand remains to be determined.
Therefore, defendants' motion for judgment on the pleadings is
Qualified Immunity Pascal also moves for summary judgment dismissing the complaint
on the ground of qualified immunity.*fn2 This motion, too,
Government officials performing discretionary functions are
entitled to qualified immunity from federal constitutional claims
as long as their actions could reasonably have been thought
consistent with the rights they are alleged to have violated.
Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038,
97 L.Ed.2d 523 (1987).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
indicated that the availability of qualified immunity ought to be
decided by the Court at the earliest possible opportunity
preferably at the outset of the case, which is a point at which
plaintiff's well pleaded allegations are assumed to be true, and
defendant's version of the facts is immaterial. Thus, as the
Second Circuit explained in Stephenson v. John Doe, Detective,
332 F.3d 68 (2d Cir. 2003), when determining a motion to dismiss
on qualified immunity grounds in advance of full merits
discovery, the plaintiff's version of the facts is presumed to be
true, and the question to be answered is whether a reasonable
Government officer, confronted with the facts as alleged by
plaintiff, could reasonably have believed that his actions did
not violate some settled constitutional right.
The inquiry is a two-step one. First, the court must determine
whether, taking the facts in the light most favorable to the
party asserting the injury, a constitutional infraction was
committed. Saucier, supra, 533 U.S. at 201. If the answer to
that question is yes, the court must decide whether a reasonable
official in defendant's position (as that position is described
by plaintiff) ought to have known that he was violating
plaintiff's constitutional rights by doing what plaintiff
alleges he did. Ordinarily, the relevant inquiry will be whether
the law is in fact well-settled, because if it is, "the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct."
Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
A defendant's assertion that the plaintiff's constitutional
rights were not violated, or that her version of events is wrong,
does not go to the question of whether the officer was entitled
to qualified immunity. Stephenson, 332 F.3d at 78 (citing
Saucier, 533 U.S. at 205, 206). Therefore, it is no defense to a
claim of qualified immunity that the defendant did not do what
plaintiff said he did (in this case, that the defendant did not
discriminate against the plaintiff on account of her race). I
must presume that the plaintiff's version of events is true, and
I cannot take into account assertions by the accused officer that
contradict the plaintiff's allegations.*fn3 Nothing in Saucier deprives the plaintiff of her Seventh
Amendment right to have a jury resolve all disputed issues of
material fact. If plaintiff's version of the facts is wrong and
defendant's is correct, then the defendant will prevail, not
because of qualified immunity, but because he did nothing wrong.
Here, Pascal has no basis for invoking the doctrine of
qualified immunity. Putting anything relating to Dolson's actual
discharge to one side (because the instant complaint was filed
before plaintiff was fired) if the charges made by plaintiff
are true, they state a claim for relief under 42 U.S.C. §§ 1981
and 1983. Plaintiff has alleged that she was discriminated
against in the terms and conditions of her employment because she
was treated differently than white employees who were similarly
situated to her in a variety of ways, at least some of which
constitute adverse employment actions. I am in no position to
adjudicate the truth of those charges today; indeed, for purposes
of the instant motion, I must assume that plaintiff's allegations
are true. Defendant's version of events (including Pascal's
statement that he favored the white dispatcher because she was
his mistress) is utterly irrelevant at this point in the lawsuit.
The law barring state actors from discrimination in employment
on grounds of race has been settled for decades. Pascal cannot
plausibly allege that he could not have known that the law
forbade him from denying employment opportunities to Dolson while
granting them to similarly situated white employees, or imposing
employment discipline on Dolson but not on similarly situated
white employees, if in fact he did so on account of Dolson's
race. It is never objectively reasonable to discriminate on the
basis of race, and no reasonable person could believe otherwise.
Of course, Pascal may not have discriminated against Dolson on
the basis of her race. He may have acted toward her with perfect
justification. She may have perceived slights where in fact there
were none. The mere fact that Dolson is black does not mean that
supervisory decisions which aggrieved her were motivated by
But that has nothing whatever to do with qualified immunity.
Qualified immunity protects protects a public official who has
committed a constitutional violation from being held liable for
that violation. If Pascal did not commit a constitutional
violation that is, if he did not discriminate against Dolson on
the basis of her race then he will win this lawsuit on the
merits, not simply be shielded from liability because of
All defense motions are denied. A scheduling order for the rest
of the discovery is attached.
This constitutes the decision and order of the court.