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Hickey v. Myers

March 2, 2010


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff, Thomas J. Hickey, brought the instant action seeking damages for retaliation pursuant to 42 U.S.C. § § 1981, 1983, and 2000d. See Docket No. 9. Plaintiff contends that both 42 U.S.C. § 2000(d) (Title VI) and 42 U.S.C. § 1981 encompass a complaint of retaliation against a person who has complained about a violation of another person's rights. See Docket No. 22 at 2. Plaintiff maintains that he was unlawfully removed from his position as Dean of the College of Liberal Arts and Sciences at the State University of New York College of Agriculture and Technology at Cobleskill (SUNY Cobleskill): (1) for opposing racial discrimination in education in violation of Title VI; (2) for opposing racial discrimination in contracts in violation of § 1981; (3) for opposing practices forbidden under the Equal Protection Clause of the United States Constitution; and (4) for speaking out on matters of public concern in violation of the First Amendment to the United States Constitution. Id. at 9-10.

Defendants filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) alleging that Plaintiff: (1) fails to state a claim under Title VI; (2) does not state a First Amendment Retaliation Claim under 42 U.S.C. § 1983; (3) does not state a viable equal protection claim under 42 U.S.C. § 1983; and (4) has failed to state a claim under 42 U.S.C. § 1981. See Docket No. 19 at 4, 5, 13, & 14.


Plaintiff assumed his position as the Dean of Liberal Arts and Sciences at SUNY Cobleskill in July of 2006. See Docket No. 9 at paragraph 23. Plaintiff contends that during his employment he learned that "[s]ince at least 1999, defendant college... had a policy of admitting students whose academic background, as revealed to its admissions office, [was] such that, given the current programs in effect at the college, they had no reasonable likelihood of graduating." Id. at paragraph 16. He discovered that the purpose of this admissions policy was to collect these students' tuition monies "for the express and admitted purpose of making budget." Id. Plaintiff maintains that the admission policy was fraudulent because the affected students were admitted to the College and paid tuition upon the representation that they could hope to attain a College degree. See Docket No. 22 at 7. Plaintiff alleges that these students were unable to earn a college degree without remedial education courses currently unavailable at the University. Id. at 5.

Plaintiff contends that the fraudulent admission policy was racially discriminatory. He alleges that not only did "defendant Myers [make] racist comments" but also "statistical evidence shows that defendants' fraudulent admissions impacted African-Americans disproportionately; the College targeted African-Americans specially for recruitment using their fraudulent policies; African-American students and white students were treated as two separate populations for admissions purposes; appropriate admissions standards were not being adhered to; academic records were falsified to facilitate the admission of under-prepared African-American students; tuition from these students was used to subsidize programs from which they did not benefit; and a variety of racist incidents on campus discouraged African-Americans in particular from trying to remain in attendance at the College such that a "racially hostile environment" existed. Id at 11.

Plaintiff opposed the College's policy in communications with both the Provost, Defendant Myers, and the President of the College, Defendant Zingale, conveying his belief that the policy was discriminatory. See Docket No. 9 at paragraph 36 & 37. Plaintiff exposed to Defendant Myers how the policy had a dramatically greater impact on African-Americans. Id. at paragraph 36. Notwithstanding his complaint, Myers chose to allow the policy to continue. Id. In these communications, "[Plaintiff] repeatedly requested that the policy be discontinued, or, in the alternative, that the college design remedial programs so that these African-American students could succeed." Id. at paragraph 44. "In the Spring of 2008, [D]efendant Myers informed faculty members of her intention to seek [Plaintiff's] removal as Dean." Id. at paragraph 38. Plaintiff's Complaint alleges that "Defendant Myers directly tied [Plaintiff's] opposition to her policies concerning the admission and retention of students to her desire to remove him as Dean, claiming that he was 'not doing his job' in repeatedly bringing up these matters." Id. Plaintiff contends that he was "removed as Dean for opposing the fraud and in particular for exposing the role recruitment of African-American students played in carrying out this fraud." See Docket No. 22 at 6.

On November 23, 2009, Plaintiff commenced the instant action against Defendants alleging that they unlawfully retaliated against his complaints regarding the racially discriminatory treatment of African-American students. See Docket No. 1. On January 8, 2010, Defendants filed this motion to dismiss. See Docket No. 19. Plaintiff opposes this motion, arguing that he is entitled to assert claims of retaliation under Title VI and 42 U.S.C. § 1981, that his First Amendment retaliation claim is not barred by Garcetti v. Ceballos, 547 U.S. 410, 426 (2006), and that Defendants are not entitled to qualified immunity. See Docket No. 22. Plaintiff acknowledges the Second Circuit Court of Appeals case Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996), which disallows a retaliation claim based on the Equal Protection Clause. Id. at 22.

Alternatively, Plaintiff seeks leave to submit a proposed Second Amended Complaint if the Court believes further factual detail is necessary to comply with the technicalities of pleading. Id. at 25.


When ruling on a motion to dismiss, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Burns v. Trombly, 624 F. Supp.2d 185, 196 (N.D.N.Y. 2008)(citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)). "'[A]lthough a court must accept as true all of the allegations contained in a complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). Therefore, to survive a motion to dismiss, Plaintiff must provide "the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008) (internal quotation omitted). Plaintiff's factual allegations must be sufficient to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Camarillo, 518 F.3d at 156 (citing Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)). "[W]hether a complaint states a plausible claim for relief will... be a context- specific task that requires the reviewing court to draw on its judicial experience and common sense." Harris, 572 F.3d at 72 (citing Ashcroft, 129 S.Ct. at 1950). Review is "limited to the facts asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." Medtech Prods. v. Ranir, LLC, 596 F. Supp.2d 778, 802 (S.D.N.Y. 2008) (citing McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 190 (2d Cir. 2007)); see Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)(citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)) (the court may review documents integral to the Complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the Complaint as exhibits and any statements or documents incorporated into the Complaint by reference.).


a. Whether Plaintiff States a Cause of Action under Title VI

Plaintiff alleges that Defendants, in their official capacities, violated Title VI by retaliating against Plaintiff for his complaints that the school admission policy was racially discriminatory. Title VI states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. ยง 2000d. This ...

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