Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Xu v. City of New York

August 3, 2010


The opinion of the court was delivered by: Denise Cote, District Judge


In this action, the pro se plaintiff Yan Ping Xu ("Xu") has alleged employment discrimination and violations of her constitutional rights by a city agency, a city employee, and two federal employees who were her supervisors at the city agency. The federal employees, Jane R. Zucker ("Zucker") and Dennis J. King ("King," and together, "Federal Defendants") have filed a motion to dismiss the claims against them on the grounds that there is no subject matter jurisdiction and that the plaintiff's claims are precluded by collateral estoppel and res judicata. For the following reasons, the motion is granted.


Xu, a United States citizen of Chinese origin, was hired by the New York City Department of Health and Mental Hygiene ("DOHMH") on June 4, 2007, to do data analysis and maintain computer databases. King was Xu's supervisor at DOHMH, and Zucker was King's supervisor. It is undisputed that both King and Zucker are employees of the federal Department of Health and Human Services ("HHS"). In late February and early March 2008, Xu complained to King about having her daily tasks directed by a colleague with the same level of seniority; she also brought to King's attention alleged data discrepancies in a DOHMH survey. Despite Xu's expression of concern about the survey's accuracy, DOHMH included the survey data in a report it sent to the Centers for Disease Control and Prevention ("CDC"). After a negative performance evaluation, Xu's employment was terminated on March 13, 2008.

On July 14, 2008, Xu commenced an Article 78 proceeding*fn1 in New York Supreme Court, alleging that she was fired in retaliation for speaking out about the data errors in violation of the state whistleblower statute, New York Civil Service Law § 75-b, and that her firing was procedurally improper. On January 29, 2009, the Hon. Paul G. Feinman issued a decision dismissing Xu's Article 78 petition "on its merits." Judge Feinman held that Xu failed to state a claim under § 75-b and that Xu's petition challenging the propriety of her firing was premature. Xu appealed that decision on February 19, 2009. The appeal is pending.

On March 13, 2009, Xu filed a complaint in New York Supreme Court against the City of New York and DOHMH (the "Plenary Action"). In the Plenary Action, she alleged retaliation in violation of § 75-b "and any related claims under NYS, NYC statute, law and rules." On October 14, the Hon. Eileen A. Rakower dismissed Xu's § 75-b claim as barred by collateral estoppel. Judge Rakower also dismissed Xu's separate claim, brought pursuant to the New York City Collective Bargaining Law, for failure to state a claim. Finally, Judge Rakower denied Xu's request for leave to amend to add a New York City False Claims Act allegation as futile. The plaintiff has appealed the October 14 decision.

Meanwhile, on December 30, 2008, Xu filed the complaint in this action against the City of New York and DOHMH. She filed an amended complaint on March 10, 2009, and a second amended complaint on May 6. After the defendants filed a motion to dismiss on June 4, the plaintiff was granted leave to file a third amended complaint. Xu filed the third amended complaint on June 26, at which time she added three individual defendants to the action. All of the defendants answered on August 25, 2009. On March 8, 2010, the Federal Defendants filed this motion for judgment on the pleadings. The motion was fully submitted on May 14.


The Federal Defendants have moved pursuant to Fed. R. Civ. P. 12(c) to dismiss all of Xu's claims against them.*fn2 Xu brings two sets of claims.*fn3 The first set consists of claims of employment discrimination. The second comprises claims that allege retaliation for speech and violations of due process. Each of these sets will be addressed in turn.

A. Employment Discrimination

Xu has alleged that King and Zucker discriminated against her in her employment on the basis of her national origin, race, color, and gender. She is suing them in both their official and individual capacities*fn4 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981, 1983, 1985(3); the Equal Protection Clause; and under New York State and New York City laws prohibiting employment discrimination. The Federal Defendants have moved to dismiss all of Xu's employment discrimination claims on the grounds that Title VII provides the exclusive remedy for employment discrimination by federal employees, and that any Title VII claim brought by Xu against either of the Federal Defendants must be dismissed.

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Section 2000e-16 of that statute, which prohibits such discrimination in employment by the federal government, "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (emphasis supplied) (Title VII preempted claim under 42 U.S.C. § 1981); Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998). The exclusivity bar extends to suits brought against federal employees under other federal statutes or under state law, because otherwise the plaintiff would be able "to evade the holding of Brown that Title VII provides the sole remedy for federal employees alleging employment discrimination." Rivera, 157 F.3d at 105.

Xu cannot maintain her claims of employment discrimination against the Federal Defendants under any statute other than Title VII. While Brown and its progeny do not address the precise situation at issue here, where a local government employee is suing a supervisor who is a federal employee, the rationale underlying Brown applies with equal force. As described in Brown, the comprehensive administrative and statutory scheme created by Congress when it extended the United States' waiver of sovereign immunity to suits brought by certain federal employees under Title VII is intended to foreclose all other suits against the federal government for employment discrimination. Brown, 425 U.S. at 832-34.

Liberally construing the complaint as pleading Title VII claims against the Federal Defendants in both their individual and official capacities, any claim that Xu is bringing under Title VII against the Federal Defendants in their official capacities must be dismissed for lack of subject matter jurisdiction. A suit against federal employees in their official capacities is "essentially a suit against the United States." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). "Absent an unequivocally expressed statutory waiver, the United States, its agencies, and its employees (when functioning in their official capacities) are immune from suit based on the principle of sovereign immunity." County of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (citation omitted). Where the United States is immune from suit, a court lacks jurisdiction over that suit. United States v. Mitchell, 445 U.S. 535, 538 (1980). The waiver of sovereign immunity within Title VII provides that "employees or applicants for employment" in military departments, executive agencies, and other named divisions of the federal government "may file a civil action... in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. ยง 2000e-16(a), (c). ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.