United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, United States District Judge.
Adam Wapniak brings this action against the City of New York
and various city officials (collectively
"defendants") following the termination of his
employment with the New York City Administration for
Children's Services ("ACS"). On May 16, 2016,
ACS hired Wapniak as an Engineering Audit Officer on a
provisional basis. He reported a number of potential rule
violations both to his superiors and to the Comptroller's
Office, After making these reports, he was demoted on June
17, 2016 to a permanent architect position with a
probationary period. As a result of his demotion, he filed a
complaint with the NYC Department of Investigation, seeking
whistleblower protection. One week later, on June 24, 2016,
he was fired. Wapniak did not bring an Article 78 proceeding
in state court to challenge these adverse employment actions.
Instead, he brought this suit against defendants in federal
court, alleging violations of (1) due process, (2) equal
protection, (3) N.Y. Civil Service Law § 75-b, and (4)
N.Y. General Municipal Law § 51. Defendants now move to
dismiss the complaint. For the reasons that follow, the Court
dismisses Wapniak's federal claims with prejudice and his
state-law claims without prejudice.
the availability of an Article 78 proceeding defeats
Wapniak's due process claim. Article 78 of the New York
Civil Practice Law is "the customary procedural vehicle
for review of administrative determinations" in New
York. Mitchell v. Fishbein, 377 F.3d 157,
170 (2d Cir. 2004) (citation omitted). The law is clear that,
when addressing "claims based on random, unauthorized
acts by state employees, " due process "is not
violated when a state employee intentionally deprives an
individual of property or liberty, so long as the State
provides a meaningful postdeprivation remedy."
Hellenic Am. Neighborhood Action Comm. V. City of New
York, 101 F.3d 877, 880 (2d Cir. 1996), Random,
unauthorized acts include acting "in flagrant violation
of [state or local law]" by taking adverse employment
actions "without according any of the protections set
forth in [state or local law]." Id. at 881. And
the Second Circuit has "held on numerous occasions that
an Article 78 proceeding is a perfectly adequate
postdeprivation remedy" in such situations. Id.
contends that an Article 78 proceeding "was not an
adequate post-deprivation remedy" in his case because
"an Article 78 is either inapplicable to this case or
does not provide a sufficient state law remedy." ECF 43
at 8, 13, He argues that he could not raise his claims in an
Article 78 proceeding because "no process was provided,
" so "no administrative determination was made,
" and thus he could not raise the issue of "whether
a determination was made in violation of lawful
procedure." See N.Y. C.P.L.R. § 7803(3).
there was no predeprivation hearing, that does not mean there
was no "determination." The City determined to fire
him. Although its determination was not preceded by a
hearing, Wapniak's complaint that he did not receive a
hearing could have been raised in an Article 78 proceeding.
See Campo v. New York City Employees' Retirement
Sys., 843 F.2d 96, 101 (2d Cir. 1988) ("An Article
78 court can . .. decide if a remand for an administrative
hearing is required.").
also complains that he could not receive damages related to
his wrongful discharge in an Article 78 proceeding.
Nevertheless, "[a]n Article 78 proceeding is adequate
for due process purposes even though the petitioner may not
be able to recover the same relief that he could in a §
1983 suit." Hellenic, 101 F.3d at 881.
Moreover, even though an Article 78 proceeding is now
time-barred, Wapniak may not "resuscitate [his] due
process claim simply because an Article 78 proceeding is now
barred by Article 78's four-month statute of
limitations." See Id. at 881.
because Wapniak had the opportunity to institute an Article
78 proceeding, he has failed allege a cognizable due process
violation. See Id. at 882 ("[T]here is
no constitutional violation (and no available §
1983 action) when there is an adequate state postdeprivation
procedure to remedy a random, arbitrary deprivation of
property or liberty." (citations
omitted)). Accordingly, the Court dismisses his due
process claim with prejudice under Federal Rule of Civil
Wapniak's equal protection claim is foreclosed by the
Supreme Court's decision in Engquist v. Oregon
Department of Agriculture, 553 U.S. 591 (2008). Wapniak
does not allege that he is a member of a protected class,
such as race, sex, or national origin. Rather, the crux of
his claim is that he is a class of one and that "[t]here
is no rational basis for the difference in treatment between
[him] and others similarly situated." See ECF 1
at ¶ 144. As the City points out, Engquist bars
the use of this "class-of-one" theory in the public
employment context. Wapniak's response takes liberties
with Engquist, claiming that it "merely states
'the class-of-one-theory of equal protection ... is
simply a poor fit in the public employment context' [but]
does not per se bar its use." ECF 43 at 20. The
opinion in Engquist could not be clearer.
See 553 U.S. at 594 ("We hold that such a
'class-of-one' theory of equal protection has no
place in the public employment context."); id.
at 598 ("[T]he class-of-one theory of equal protection
does not apply in the public employment context.").
Similarly, Wapniak mistreats the holdings in two lower court
cases, stating that they narrowly read Engquist as
not barring "class-of-one" in the public employment
context, when in fact they do nothing of the sort. See
Vlahadamis v. Klernan, 837 F.Supp.2d 131, 143-45
(E.D.N.Y. 2011) (analyzing whether the reasoning in
Engquist "had the effect of eliminating all
selective enforcement claims"); Conyers v.
Rossides, 558 F.3d 137, 151-52 (2d Cir. 2009)
(recognizing that Engquist "rejects" the
class-of-one theory in this context, and affirming dismissal
of plaintiff s claim because he did "not assert an
employment-related equal protection claim arising out of his
membership in any particular group"). Therefore, Wapniak
fails to allege a cognizable equal protection violation, and
the Court dismisses his equal protection claim with prejudice
under Rule 12(b)(6).
upon dismissing all of the federal claims, the Court declines
to exercise supplemental jurisdiction over the two remaining
state-law claims. "[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine-judicial economy, convenience, fairness, and
comity-will point toward declining to exercise jurisdiction
over the remaining state-law claims."
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
n.7 (1988). Here, comity in particular suggests that a state
court decide these sensitive issues of state law. For
example, defendants contend that Wapniak has not adequately
pled a violation of N.Y. Civil Service Law § 75-b
because he "does not make any allegation that he
disclosed any violation of federal, state or local law, rule,
or regulation." ECF 40 at 9-10. Wapniak's complaint,
however, alleges that he reported at least nineteen separate
irregularities and identifies some of them as violations of
"city protocols and procedures" and agency
"rules, " which "placed the City at risk for
waste, fraud, and abuse." ECF 1 at ¶
70(h)(m)(o)(q)(r). The Court finds that is more appropriate
for a state court to decide whether such allegations suffice
to state a claim under N.Y. Civil Service Law § 75-b.
Therefore, the Court declines to exercise jurisdiction over
these claims, and it dismisses them without prejudice.
foregoing reasons, the Court GRANTS the motion to dismiss,
The Clerk of the Court is directed to terminate this case.
 As a result, it is not necessary to
address defendants' argument that Wapniak had no property
interest in his employment. Nevertheless, the Court notes
that Wapniak was a provisional and probationary employee and
had no civil service status. Thus, he seemingly had no such
property interest. See Preddice v. Callanan, 506
N.E.2d 529, 529 (N.Y. 1987); 4 NY.C.R.R. § 1.1.
 Wapniak also raises a separate claim
against the City alleging municipal liability under
Monell v. Department of Social Services, 436 U.S.
658 (1976). ECF 1 at 24-26. As a result of the dismissal of
both federal constitutional claims, Wapniak's
Monell claim necessarily fails. See Segal v.
City of New York,459 F.3d 207, 219 (2d Cir. 2006)
“Monell does not provide a separate cause of
action for the failure by the government to train its
employees; it extends liability to a municipal
organization where that organization's ...