UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 4, 2008
GHEEVARGHESE A. THANKACHAN, PLAINTIFF,
PEEKSKILL HOUSING AUTHORITY, JOHN TESTA,: MAYOR, CITY OF PEEKSKILL, LEESTHER BROWN, ERIC HINES, SANDRA BOND AND LORRAINE ROBINSON, SUED IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.
The opinion of the court was delivered by: Conner, Sr. D.J.
OPINION AND ORDER
Plaintiff, Gheevarghese A. Thankachan brings this suit against defendants Peekskill Housing Authority (the "Authority"); John Testa ("Testa") in his official capacity as Mayor of the City of Peekskill and Leesther Brown ("Brown"), Eric Hines ("Hines"), Sandra Bond ("Bond") and Lorraine Robinson ("Robinson") ("Board defendants") in their official and individual capacities, pursuant to 42 U.S.C. §§ 1981, 1983. Plaintiff alleges that defendants violated his First and Fourteenth Amendment rights when they terminated his employment with the Authority. Defendant Testa moved to dismiss the claim against him pursuant to FED. R. CIV. P. 12(b)(6).
For the following reasons, defendant's motion is denied.
Plaintiff alleges the following in his Complaint.
The Authority is a municipal corporation organized pursuant to the laws of the State of New York.*fn1 (Complt. ¶ 2.) Defendant Testa was, at all relevant times, the Mayor of the City of Peekskill with the power to appoint and remove members of the Authority.*fn2 (Complt. ¶ 3.) Defendant Brown is the acting chair of the Authority and defendants Hines, Bond and Robinson are members of the Authority. (Id. ¶¶ 4-5.)
Plaintiff was the Executive Director of the Authority from April 2003 until he was terminated in September 2007. (Id. ¶¶ 7, 16.) Plaintiff began working for the Authority in1983, and served as staff attorney from 1998 until April 2003. (Id. ¶¶ 8-9.) Plaintiff alleges that he performed his duties and responsibilities well; he was recognized with an award for "exemplary service to our residents" in October 2006 and the Department of Housing and Urban Development ("HUD") scored plaintiff's management operation 29 out of a maximum score of 30 for 2006. (Id. ¶¶ 11-13.)
Plaintiff was born in India, is of dark complexion and his first language is Malayalam. (Id. ¶ 10.) Plaintiff alleges that on several occasions in 2006 and 2007, defendant Brown made remarks deprecating his national origin. (Id. ¶ 26.) He also alleges that, in the spring of 2007, he rebuked defendant Brown for what he felt was a racist statement by Brown that plaintiff was allowing too many Hispanics to enter the housing authority projects. (Id. ¶¶ 14-15.) Plaintiff states that in the late spring or early summer of 2007 he was suspended for the alleged purpose of investigating his performance. (Id. ¶ 22.) The Authority hired a law firm to determine if grounds existed to terminate plaintiff and plaintiff believes that the firm found no such grounds. (Id. ¶¶ 23-24.)
Plaintiff alleges that in 2007 he revealed to HUD several examples of misconduct on the part of members of the Authority; he revealed that a contract for the installation of surveillance cameras was granted without proper bidding to a company associated with the Mayor and that Brown had made discriminatory remarks concerning Hispanic tenants. (Id. ¶ 25.)
Plaintiff alleges that on or about September 13, 2007, defendants Brown, Hines, Bond and Robinson voted in a closed executive session to terminate his employment, and in informing him of the decision they provided him with no reason for the termination. (Id. ¶¶ 16-18.) Thereafter, defendant Brown announced what plaintiff alleges are false reasons for the action; specifically, Brown advised the media that plaintiff had failed to evict a sex offender and had allowed convicted drug felons to remain in Authority buildings. (Id. ¶¶ 19-20.) After learning of these purported reasons for his termination, plaintiff, through counsel, requested a name-clearing hearing but was not provided one. (Id. ¶¶ 27-28.)
Plaintiff alleges that defendant Testa came to believe that plaintiff was associating with members of the Democratic party and expressed hostility toward plaintiff on this basis. (Id. ¶ 29.) He alleges that Testa appointed Authority members "expressly bent on ending plaintiff's tenure for political reasons." (Id.) He further alleges that defendant Brown harbored discriminatory animus toward him on the basis of his national origin and was hostile toward him both for his political affiliation and because he refused to engage in discriminatory practices against tenants of Authority housing. (Id.) Plaintiff also claims he was deprived of property and liberty interests without due process when defendants failed to provide him with a pre-termination hearing and a name-clearing hearing. (Id. ¶¶ 41-42.)
I. Legal Standard
A motion brought under FED. R. CIV. P. 12(b)(6) posits that the plaintiff has failed "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). In assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996).
On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (internal quotation marks and citation omitted). "The Supreme Court has recently held that [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ello v. Singh, 531 F. Supp. 2d 552, 562 (S.D.N.Y. 2007) (internal quotation marks omitted; alterations in original) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d. Cir. 2007) (determining that the Court in Twombly "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") (emphasis in original). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
II. Plaintiff Sufficiently States A Claim Against Testa
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant, acting under "color of law," deprived the plaintiff of a right, privilege or immunity guaranteed by the Constitution or laws of the United States. Morris v. Eversley, 282 F. Supp. 2d 196, 203 (S.D.N.Y. 2003). Therefore, to survive this motion, plaintiff must adequately state a plausible claim that Testa, acting as Mayor under "color of law," was involved in the deprivation of plaintiff's constitutional rights.
"As a general rule, public employees may not be dismissed for the exercise of their First Amendment rights." Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995); Butler v. N.Y. State Dep't of Law, 998 F. Supp. 336, 339 (S.D.N.Y. 1998). Those rights include freedom of political speech, belief and association. See Elrod v. Burns, 427 U.S. 347, 367 (1976). Plaintiff alleges that when Testa came to believe plaintiff was associating with members of the Democratic party, he expressed hostility towards plaintiff. He further alleges that Testa appointed Authority members that would terminate plaintiff's employment for these political reasons. Considering plaintiff's allegations in the light most favorable to him, it is plausible that he was terminated for his affiliation with the Democratic party, and it is plausible that the termination was therefore wrongful. We must next consider whether it is plausible that Testa participated in the termination.
"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (internal quotation marks and citation omitted). A defendant's personal involvement is a question of fact. Id.; see Hous. Works, Inc v. Turner, 179 F. Supp. 2d 177, 203 (S.D.N.Y. 2001) ("Because direct participation is a question of fact, all reasonable inferences must be drawn in favor of the non-moving party on a motion to dismiss the complaint."). If plaintiff has adequately alleged a plausible claim from which we can reasonably infer that Testa was personally involved, he will survive this motion. Because plaintiff does not allege that Testa actually terminated him, but rather that his termination was an act of the Board defendants, we must consider whether, as alleged, it is plausible that Testa was personally involved in plaintiff's termination by influencing the actions of the Board.
Testa had the authority, under "color of law," to appoint the Authority Board members. See N.Y. PUB. HOUS. LAW§ 30(2). He also had statutory power to remove them for cause, but only after a public hearing. See id. § 34. Testa could have influenced the actions of the Board through his appointments and his authority to remove them, which is what plaintiff alleges he did. Testa argues that the City has no power over the Authority because the Authority is an autonomous public benefit corporation regulated by HUD. (Def. Mem. Supp. Mot. Dismiss at 2-3.) However, this argument does not address plaintiff's argument that Testa had the ability to influence the Board through appointments and removals. Whether Testa did that is an issue of fact to be determined at trial. See Ello, 531 F. Supp. 2d at 562 (on a Rule 12(b)(6) motion, "[t]he Court will accept as true [p]laintiff's allegations, and draw all inferences in [p]laintiff's favor.")
In United States v. Yonkers Board of Education, the Second Circuit agreed with the district court that the mayoral appointment of school board members and the subsequent inaction of the board amounted to an interrelated governmental effort to preserve racial school segregation. 837 F.2d 1181, 1235 (2d Cir. 1987). The district court had found that the pattern of appointments by the mayor was an exercise of "power over school board appointments as a means of furthering the city's segregative objectives." Id. at 1215 (internal quotation marks and citation omitted). The district court found that the mayor's appointments "contributed significantly both to the confinement of minority students to schools in Southwest Yonkers and to the Board's failure to undo the segregative effects of these and other practices on the schools." Id. It is therefore plausible that the power to appoint and remove, even if the power to remove is constrained by statute,*fn3 allowed Testa to exercise influence over the Board. That influence is enough to allege that Testa is liable under § 1983.*fn4
Testa further argues that the appointment of defendant Brown in 2004 was not a substantial causative factor in plaintiff's termination in 2007.*fn5 (Def. Mem. Supp. Mot. Dismiss at 3-4.) To establish a violation of First Amendment rights, a plaintiff must demonstrate "by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him." Hale v. Mann, 219 F.3d 61, 70 (2d Cir. 2000) (internal quotation marks and citation omitted). However, the determination of whether plaintiff establishes a prima face case of First Amendment retaliation is not to be made on a motion to dismiss. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510-12 (2002) ("The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.") On a motion to dismiss we are limited to an inquiry as to whether plaintiff gave defendant fair notice of a plausible basis for his claim. Id. at 514. Plaintiff alleges that Testa became hostile to him once he learned of his political affiliation, and as a result Testa influenced the Board to terminate him. Plaintiff has met his burden on this motion. Whether he can establish by a preponderance of the evidence that Testa influenced the Board are questions of fact for trial and we do not address them here.*fn6
Finally, Testa argues that plaintiff "alleges without connecting factual allegations, how, when and in what actions, that defendant Testa influenced the Board." (Def. Mem. Supp. Mot. Dismiss at 4 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); see also Florence Reply Aff'm at 3.) However, it is not plaintiff's burden to allege all the facts as to how, when and in what actions Testa influenced the Board.*fn7 See FED. R. CIV. P. 8(a)(2) ("A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief ...."). It is enough that plaintiff sufficiently alleged facts supporting an inference that Testa was involved in his termination for unconstitutional reasons, and has thereby put Testa on fair notice of a plausible basis for his claim.*fn8
For all of the foregoing reasons, defendant John Testa's motion to dismiss is denied.