United States District Court, N.D. New York
DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff, Glendon Griffith ("Plaintiff"), commenced this action asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination and Employment Act ("ADEA"), and 42 U.S.C. §§ 1981 and 1983. See Dkt. No. 1, ("Compl."). Defendants New York State Department of Health, Office of the Medicaid Inspector General ("OMIG"); James C. Cox ("Cox"); Maureen Howley ("Howley"); Mark Hennessey ("Hennessey"); Robert Byrnes ("Byrnes"); Levon Aharonyan ("Aharonyan"); Martin Mack ("Mack"); Maureen DeRosa ("DeRosa"); and Christopher Bedell ("Bedell") move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's claims. See Dkt. No. 16. Plaintiff opposes the motion, see Dkt. No. 17, and Defendants reply. See Dkt. No. 19. Plaintiff also files a motion (essentially an unauthorized sur-reply) asking to be given leave to re-plead any claims that are dismissed. See Dkt. No. 20.
The Court has considered the parties' submissions and decides the instant motions without the need for oral argument. For the reasons that follow, Defendants' motion, Dkt. No. 16, is granted in part and denied in part. Plaintiff's motion, Dkt. No. 20, is granted in part and denied in part.
Plaintiff is a black male, over the age of forty, whose nation of origin is the Republic of Trinidad and Tobago. (Compl. ¶¶ 5-7). OMIG's New York City regional office hired Plaintiff as a G-17 Medicaid Inspector on September 13, 1990. (Compl. ¶¶ 27-28). Plaintiff was promoted to a G-21 Medicaid Inspector II in 2008, but was removed from that position and returned to his original position in April 2009. (Compl. ¶¶ 30-31). When he inquired about the demotion, Medicaid Inspector in Charge Howley "stat[ed] in sum and substance you don't know how Albany works.'" (Compl. ¶ 32).
Plaintiff applied for a promotion to be a G-21 Medicaid Inspector II in 2010. (Compl. ¶ 33). Kevin Dowell, Fern DePaulo, and Susan Hamill served on the panel that interviewed Plaintiff. (Compl. ¶ 33). Assistant Medicaid Inspectors in Charge Byrnes and Aharonyan supervised the panelists. (Compl. ¶ 34). Dowell allegedly told Howley that Plaintiff was the "highest ranking candidate for the promotion." (Compl. ¶ 35). Following a discussion among Howley, Byrnes, and Aharonyan regarding the promotions process, Howley contacted the panelists and asked them to remove Plaintiff as the top candidate because "Albany was questioning the selection, " but the panelists refused to do so. (Compl. ¶¶ 36-38).
On October 19, 2010, Deputy Inspector General Hennessey forwarded Plaintiff's resume to Mack, who served as then-Governor Paterson's Deputy Appointments Secretary. (Compl. ¶¶ 18, 39). Hennessey proposed that OMIG offer the promotion to Plaintiff, effective November 4, 2010. (Compl. ¶ 40). Plaintiff inquired of Byrnes and/or Howley about the status of the promotion in 2010 and/or 2011. (Compl. ¶ 41). They responded with "words to the effect that the OMIG was waiting on budgetary approval' and that his promotion would be delayed because of budget issues.'" (Compl. ¶ 41). Plaintiff did not decline the promotion, nor was he ever advised that his promotion "had expired or been controverted." (Compl. ¶ 42).
In a letter dated May 11, 2012 to Governor Cuomo's Assistant Appointments Secretary DeRosa, Hennessey proposed offering Bedell a promotion to be a G-21 Medicaid Inspector II. (Compl. ¶¶ 43-44). At that time, Bedell was a G-17 Medicaid Inspector I. (Compl. ¶ 43). Bedell is a Caucasian male from the United States who is approximately twenty years younger than Plaintiff. (Compl. ¶ 45).
Plaintiff alleges that in 2012 there were approximately fifteen occupied supervisor positions, classified as G-21 or higher, in the OMIG's New York City office. (Compl. ¶ 46). He claims that "[o]nly one of those supervisor positions was filled by a non-white individual, and none were filled by individuals of foreign national origin." (Compl. ¶ 47).
Plaintiff believes that the position offered to Bedell is the same position that was originally offered to him, and that the position remained vacant until Bedell's appointment. (Compl. ¶ 48). This position was neither publicly offered nor publicly posted. (Compl. ¶ 49). Plaintiff alleges that Bedell was not initially qualified for the position but in June 2012 OMIG changed, or asked the New York State Civil Service Department to change, the requirements so that Bedell could be appointed. (Compl. ¶¶ 50-51). On August 27, 2012, Bedell was appointed to the position. (Compl. ¶ 52). Plaintiff claims that Bedell had worked in OMIG for less than two years and had less than five years of relevant experience at the time of the promotion. (Compl. ¶ 53).
All Individual Defendants, except for Bedell, are alleged to have "directly participated in the decision to annul [Plaintiff's] promotion, change the requirements for the promotional position, and instead offer" the promotion to Bedell. (Compl. ¶ 56). All are alleged to have taken these actions because of their "discriminatory animus" toward Plaintiff based on his age, race, and national origin. (Compl. ¶ 57).
Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") and the United States Equal Opportunity Commission ("EEOC") on March 29, 2013 "alleging discrimination based on his race and national origin." (Compl. ¶ 22). On November 4, 2013, he amended his NYSDHR complaint to also allege age discrimination. (Compl. ¶ 23). On December 24, 2013, NYSDHR issued a Determination After Investigation, "finding that probable cause' exists to believe that discrimination based on age, race, and national origin occurred." (Compl. ¶ 24). The EEOC issued a right to sue letter on June 16, 2014. (Compl. ¶ 25). On June 25, 2014, NYSDHR issued an Amended Final Order of Dismissal for Administrative Convenience. (Compl. ¶ 26).
Plaintiff commenced this action on September 15, 2014. ( See Dkt. No. 1). The First and Second Causes of Action allege that OMIG and Cox are liable for damages for engaging in racial and national origin discrimination in violation of Title VII. (Compl. ¶¶ 64-71). In the Third Cause of Action, which arises under the ADEA, Plaintiff seeks "prospective injunctive relief" against the Individual Defendants in their individual capacities "in the form of a promotion to a G-21 Medicaid Inspector II and/or promotion to a higher grade and title." (Compl. ¶ 72-74). Finally, in the Fourth and Fifth Causes of Action, which arise under 42 U.S.C. §§ 1981 and 1983, Plaintiff seeks monetary damages against the Individual Defendants in their individual capacities and prospective injunctive relief against them in their official capacities "in the form of a promotion to a G-21 Medicaid Inspector II and/or promotion to a higher grade and title." (Compl. ¶ 75-86).
III. STANDARD OF REVIEW
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). On a motion to dismiss, the Court must accept "all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While Rule 8(a) (2) "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me-accusation." Id. (citation and internal quotation marks omitted). A claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint which "tenders naked assertion[s]' devoid of further factual enhancement'" is insufficient. Id. (citation omitted).
a. Viability of both § 1981 and § ...