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Estate of Paulette v. the City of New York and Scott O'neill

December 3, 2010

ESTATE OF PAULETTE HAMILTON, SUBHASHNAIK, GAMALHANNA, AND NIVINE ELSHAROUNY, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK AND SCOTT O'NEILL, DEFENDANTS-APPELLEES.



Appeal from a September 21, 2009 judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge) granting summary judgment to defendants on federal and state law claims relating to alleged instances of employment discrimination.

Per curiam.

09-4318-cv

Hamilton v. City of New York

(Argued: September 28, 2010)

Before: JACOBS, Chief Judge, WALKER and CABRANES, Circuit Judges.

We affirm the judgment of the District Court in all respects, save for its dismissal of plaintiffs' claims under New York Labor Law § 190 et seq. We conclude that the City of New York's defense that it is not covered by the relevant provisions of the New York Labor Law must be affirmatively pleaded pursuant to Rule 8(c). Therefore, we vacate the District Court's dismissal of plaintiffs' New York Labor Law claims, and remand for consideration of whether it would be appropriate to construe defendants' motion for summary judgment as a motion to amend the answer to assert an affirmative defense for the first time.

Plaintiffs-appellants Gamal Hanna, Nivine Elsharouny, Subhash Naik, and the Estate of Paulette Hamilton*fn1 appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), dismissing, with prejudice, their complaint against defendants-appellees Scott O'Neill and the City of New York. Plaintiffs brought suit for employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; under 42 U.S.C. § 1983 ("§ 1983"); under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.; and under the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. Additionally, plaintiffs advanced claims that they (1) suffered retaliation for filing discrimination claims, (2) were deprived of due process of law in violation of § 1983, and (3) were denied wages that were owed to them in violation of New York Labor Law § 190 et seq. ("Labor Law" claims).

The District Court held that plaintiffs had abandoned their due process and retaliation claims. Furthermore, the Court granted summary judgment to defendants on the state and federal discrimination claims as well as the Labor Law claims. On appeal, plaintiffs challenge all of these rulings, excepting the retaliation claim, as well as certain evidentiary decisions made by the court below. We affirm the District Court in all respects save for its dismissal of plaintiffs' Labor Law claims; we remand for consideration of whether it would be appropriate to construe defendants' motion for summary judgment as a motion to amend the answer to assert an affirmative defense for the first time.

BACKGROUND

Plaintiffs are current or former employees of the Controlled Substance Analysis Section of the New York City Police Department Crime Laboratory ("crime lab"). All four were born abroad: Hanna and Elsharouny in Egypt, Naik in India, and Hamilton in Jamaica. Almost all employees in the crime lab are "Criminalists," ranging in assignment levels from I-IV. Generally, all supervisory duties are supposed to be performed by Criminalists IV.

Despite being only Criminalists III, plaintiffs all were given supervisory responsibilities for a substantial period of time. Although these increased responsibilities were not accompanied by improved salary, benefits, or formal title, plaintiffs were referred to as Criminalists III-Supervisor within the crime lab.

In 2005, two new Criminalist IV positions were created within the Controlled Substance section. Defendant O'Neill, who was the immediate supervisor of that section, was tasked with filling these vacancies. In accordance with the custom and practice of the crime lab, no general announcement was made to advertise these vacancies and O'Neill did not conduct any interviews. In his affidavit, O'Neill claimed that his top choice for the job was Vito Casella-an Italian-born Criminalist III-Supervisor-but that Casella had turned him down. Instead, O'Neill hired Matthew Johnson and Thomas Hickey, the only two white, American-born males of the seven individuals then holding the (informal, but apparently well established) designation of Criminalist III-Supervisor, despite the fact that all four plaintiffs had considerably longer tenures as employees of the crime lab.

Following the ascension of Johnson and Hickey, there remained only five people holding the position of Criminalist III-Supervisor in the crime lab-the four plaintiffs and Casella. With Johnson and Hickey now filling formal supervisory roles, O'Neill concluded that it was appropriate and feasible to eliminate the position of Criminalist III-Supervisor altogether so that all supervisory functions would be performed by Criminalists IV only, as had been originally intended. Plaintiffs were informed that they were being relieved of their supervisory functions, but their salary, benefits, and formal title remained unchanged.

Shortly after these events, plaintiffs filed a complaint with the New York Police Department's Office of Equal Employment Opportunity ("OEEO") claiming that they had been denied promotions on the basis of their national origin. This claim was investigated and ultimately determined to be without merit due to the fact that Johnson and Hickey were found to have had generally better performance evaluations than each of the plaintiffs. In 2006, plaintiffs filed charges of employment discrimination with the Equal Employment ...


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