United States District Court, S.D. New York
IQBAL N. SULEHRIA, Plaintiff,
THE STATE OF NEW YORK et al., Defendants.
MEMORANDUM & ORDER
ALISON J. NATHAN, District Judge.
Plaintiff Iqbal N. Sulehria, proceeding pro se, brings this action against the State of New York and two of its employees in their individual and official capacities. He alleges that Defendants discriminated against him based on his age, race, creed, color, religion, national origin, and sex when they failed to hire him to a civil service position with the State of New York, in violation of 42 U.S.C. § 1981; 42 U.S.C. § 1985; Title VI of the Civil Rights Act ("Title VI"), 42 U.S.C. § 2000d et seq. ; Title VII of the Civil Right Act ("Title VII"), 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 621 et seq. ; New York General Business Law§ 349; New York State Human Rights Law, N.Y. Exec. Law§ 290 et seq. ; and New York City Human Rights Law, N.Y. City Admin. Code§ 8-101 et seq. He also brings a state-law claim for fraud.
Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. For the reasons stated herein, Defendants' motion is GRANTED.
For the purposes of this motion, the Court accepts as true the factual allegations in the Complaint. Plaintiff is a forty-nine year old male who was born in Pakistan, and became a United States citizen in 1999 after arriving in the country in 1993. Compl. ¶ 8. He obtained an LL.B. degree while still in Pakistan, and has since earned an LL.M. degree from Touro Law Center on Long Island, NY. Id. In November 2011, he applied for an Attorney Trainee position with the New York Civil Service, and took the required Legal Specialties placement examination at the direction of Defendant Marion Ebli. Id. ¶para; 14-15. The Legal Specialties exam consists of an "education and experiences" questionnaire, which is then used to evaluate which candidates meet an agency's needs when it has a vacancy. Id. Ex. A (Dkt. No. 2 at 39). Candidates are rated differently for different vacancies, because scores are matched to the requirements of the position to be filled. Id. Under New York law, agencies are required to hire from the three highest-scoring individuals on the relevant civil service examination when a vacant position opens up, subject to certain allowances made for veterans and employees already in the civil service. See N.Y. Civ. Serv. Law§§ 61(1), 81. A candidate who takes the Legal Specialties exam remains eligible to be considered for legal positions in the civil service for one year. See Compl. Exs. A & E (Dkt. Nos. 2 at 39, 2-2 at 48).
Whenever an agency has a vacancy, the Department of Civil Service generates a list known as a "LERT" that indicates candidates' scores on the Legal Specialties exam relative to the needs of the position. Id. ¶¶ 21-22. Plaintiff appeared on nine LERTs during his eligibility period. Id. ¶ 21. In August 2012, Plaintiff received a "canvass letter" in connection with one of those LERTS, for a position in the Division of Housing and Community Renewal. Id. ¶para; 17, 21 & Ex. D (Dkt. No. 2-2 at 45). The letter indicated that Plaintiff's name appeared on the "eligible list" for a position in the Tenant Protection Unit, and directed Plaintiff to return the letter and a resume within two weeks if he was interested in the position. Id. Ex. D (Dkt. No. 2-2 at 45). Plaintiff did so, but was not subsequently contacted for an interview. Id. ¶ 17.
In May 2013, Plaintiff was told by an unnamed employee of the State of New York that he "should have been called for an interview" if he was on the eligible list for the Housing and Community Renewal Job. Id. ¶ 18. That same day, he called the Department of Civil Service and spoke with Defendant Marion Ebli, who declined to give Plaintiff a list of candidates who "passed the test" for the position, explaining that no list is created until an agency requests one to fill an open position, and directions about specific lists must be directed to the hiring agency. Id. ¶ 19 & Ex. E (Dkt. No. 2-2 at 48). She did, however, provide Plaintiff with a list of his scores on LERTs that were generated during his eligibility period, and reminded him that over one year had passed since he took the Legal Specialties examination-meaning he had to take the exam again to be eligibile under the one-year rule. Id. Ex. E (Dkt. No. 2-2 at 48). Five days after his phone conversation with Defendant Ebli, Plaintiff spoke with Defendant Sev Moro on the phone, who told Plaintiff that he "will not be hired, " and when asked about reapplying, told Plaintiff, "Do not bother again." Id. ¶ 20.
Plaintiff alleges that the test procedure for the Legal Specialties examination is biased against Asian-American candidates, and sets them up to score low on the LERTs on which he appeared. Id. ¶ 22. He claims that other individuals scored higher because they had J.D. degrees instead of an LL.M. degree, which he describes as a higher level of education, and that these individuals were "less qualified, less experienced, and less competent" than he was. Id. ¶para; 23, 26, 37. He further claims that he would have had the highest score on the Legal Specialties examination if the State used "fair methods for testing." Id. ¶ 53. At the same time, he alleges that he scored higher than other applicants for two job openings with the Department of Labor, but was not offered the job for "discriminatory reasons." Id. ¶ 29. All of the positions for which he was eligible, he says, were eventually filled by less-qualified females,  id. ¶ 30, or by lessqualified males with "religions, colors, ancestries, [and] national origins" outside of his protected class, id. ¶¶ 31, 33, and in part by less-qualified individuals who were under forty years old, id. ¶ 32. He was denied the position, he states, because he is a male over 48 years old, is of Pakistani origin, is an Asian-American of dark complexion, and is a practicing Muslim. Id. ¶ 36.
With regard to Defendants Ebli and Moro, Plaintiff claims that they were "personally involved and directly participated" in denying him a job. Compl. ¶ 34. He also alleges that they created a "policy or custom" of "unconstitutional practices, " and that they were grossly negligent in managing subordinates. Id. Ebli, he says, is a Senior Staffing Representative, and therefore responsible for "day-to-day hiring" and supervision of New York State employees. Id. ¶ 10. Moro is similarly alleged to be responsible for hiring employees for New York State. Id. ¶ 11.
Plaintiff brings fifteen claims based on the failure to hire him to a vacant legal position. These include violations of 42 U.S.C. § 1981; 42 U.S.C. § 1985; Title VI, Title VII, the ADEA, New York General Business Law§ 349; New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ; and New York City Human Rights Law, N.Y. City Admin. Code§ 8-101 et seq. He also brings a state-law fraud claim, claims entitled "Pattern and Practice" and "Disparate Treatment/Impact, " and claims for a declaratory judgment under 28 U.S.C. §§ 2201 & 2202 and N.Y. C.P.L.R. 3001.
II. Legal Standard
When evaluating a motion to dismiss, a court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "To survive a motion to dismiss, the plaintiff's pleading must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
In addition to the allegations in the complaint, a court may consider documents attached as exhibits, incorporated by reference, or relied upon by the plaintiff in bringing suit, as well as any judicially noticeable matters. See Halebian v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011); In re Harbinger Capital Partners Funds Investor Litig., No. 12 Civ. 1244 (AJN), 2013 WL 5441754, at * 15 n.6 (S.D.N.Y. Sept. 30, 2013). "If a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true." TufAmerica, Inc. v. Diamond, 968 F.Supp.2d 588, 592 (S.D.N.Y. 2013) (quoting Poindexter v. EMI Record Grp. Inc., No. 11-v-559 (LTS), 2012 WL 1027639, at *2 (S.D.N.Y. Mar. 27, 2012)).
Courts are to give "special solicitude" to pro se litigants by construing liberally the allegations in the complaint, particularly in civil rights suits. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010). However, lawyers representing themselves pro se ordinarily do not receive this same solicitude because of their familiarity with the procedural and substantive requirements of litigation. Id. Defendants argue that Plaintiff, despite proceeding pro se, should not be given the benefit of liberal construction of his pleadings because of his legal training, which indeed Plaintiff refers to repeatedly throughout the Complaint. See, e.g., Compl. ¶ 27. Ultimately, the issue need not be ...