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Kremer v. New York State Insurance Dep't

March 25, 2009

SEMYON KREMER, ET AL., PLAINTIFFS,
v.
NEW YORK STATE INSURANCE DEPT., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert L. Carter, District Judge

OPINION

Defendants move to dismiss portions of Plaintiffs' Amended Complaint pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons herein, the court denies in part and grants in part Defendants' motion.

BACKGROUND

Plaintiff Semyon Kremer filed a complaint on October 19, 2006, against the New York State Insurance Department ("Department"), Anne Francese, Mitchell Gennaoui, and Karen Cole (all together, "Defendants"). Plaintiffs Ademola Oluwo and Ian Martin (together, including Kremer, "Plaintiffs") joined the action, and an amended complaint was filed on January 22, 2007 ("Amended Complaint"). Plaintiffs are all employees of the Department, who, they allege, discriminated against them illegally.

According to the Amended Complaint, Kremer is a Russian born American who started working at the Department in 1994. He sat for New York State Civil Service examinations in 1999 and 2003 to qualify for promotion to the position of Senior Insurance Examiner. He was denied promotion both times. Kremer scored a 90 on the 2003 exam, and ascended to number three on the civil service promotions list. According to Kremer, of the 32 individuals listed at that time, only three were not promoted, and of those three, each was a foreigner who spoke with an accent. In 2005, Kremer sat for a third examination, scored a 90, and reached number three on the promotions list. He was denied promotion again.

Kremer alleges discrimination in the terms and conditions of his employment based on his national origin, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII"); discrimination in the terms and conditions of his employment based on his national origin, and retaliation under the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq. ("HRL"); and discrimination in the terms and conditions of his employment based on national origin, and retaliation under 42 U.S.C. §§ 1983 and 1981 ("§§ 1983 and 1981"). Also, in his Memorandum of Law in Opposition to Defendants' Motion to Dismiss Portions of the Amended Complaint ("Opposition Memo"), Kremer seems to assert for the first time claims of illegal discrimination based on age in violation of the HRL and §§ 1983 and 1981.

According to the Amended Complaint, Oluwo is a dark skinned Nigerian Muslim who started working at the Department in July 1987 as an Insurance Examiner Trainee. In July 1989 he completed his training and was promoted to the position of Insurance Examiner. In 2000, Oluwo was elected as his union's president. In 2003, Oluwo completed a New York State Civil Service Exam to qualify for promotion to the position of Senior Insurance Examiner. He became eligible for promotion that same year, but was passed over. He was eventually promoted to Senior Insurance Examiner in 2004. Oluwo tells that throughout his employ he has witnessed and experienced racial and religious discrimination.

Oluwo alleges discrimination in the terms and conditions of his employment based on his race, color, religion and national origin, creation of a hostile work environment, and retaliation under Title VII; discrimination in the terms and conditions of his employment based on his race, color, religion and national origin, the creation of a hostile work environment, and retaliation under the HRL; and discrimination in the terms and conditions of his employment based on his race, color, religion and national origin, the creation of a hostile work environment, and retaliation under §§ 1983 and 1981.

According to the Amended Complaint, Martin is a dark skinned Jamaican who began work with the Department in 1993 as an Insurance Examiner Trainee. He was promoted to Insurance Examiner in 1995. In 1998, Martin completed a New York State Civil Service Exam to be considered for the Senior Insurance Examiner position. He became eligible for promotion in 1999, but was passed over. He took another Civil Service Exam in 2002, became eligible for promotion in 2003, but was passed over again. In 2005, Martin sat for third Civil Service Exam, achieved the highest score, and was passed over for promotion again.

Martin alleges discrimination in the terms and conditions of his employment based on his race, color, and national origin, retaliation, and creation of a hostile work environment under Title VII; discrimination in the terms and conditions of his employment based on his race, color, and national origin, retaliation and creation of a hostile work environment under the HRL; and discrimination in the terms and conditions of his employment based on his race, color, and national origin and creation of a hostile work environment under §§ 1983 and 1981.

Defendants are seeking dismissal of Kremer's putative age discrimination claims, all of Oluwo's claims, and Martin's hostile work environment and retaliation claims.

DISCUSSION

A complaint may be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Dismissal pursuant to 12(b)(6) of the Federal Rules is appropriate where the plaintiff has failed "to state a claim upon which relief can be granted." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (quoting FED. R. CIV. P. 12(b)(6)). To survive 12(b)(6) scrutiny, the complaint must allege "enough facts to state a claim for relief that is plausible on its face." Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)) (quotation marks omitted). The court accepts "the material facts alleged in the complaint as true and construe[s] all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).

Kremer

Kremer originally alleged that he was subjected to unlawful discrimination on the basis of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). While he withdraws the ADEA claim in the Opposition Memo, he invokes there, for the first time, HRL and §§ 1983 and 1981 claims for ...


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