278 F.3d 93 (2nd Cir. 2002), 00-9348, Abramson v Pataki
|Docket Nº:||Docket No. 00-9348|
|Citation:||278 F.3d 93|
|Party Name:||JUDITH ABRAMSON ET AL., PLAINTIFFS-APPELLANTS, v. GEORGE E. PATAKI, INDIVIDUALLY AND IN HIS CAPACITY AS THE GOVERNOR OF THE STATE OF NEW YORK AND WILLIAM L. MACK, INDIVIDUALLY AND IN HIS CAPACITY AS CHAIRMAN OF THE BOARD OF DIRECTORS OF THE NEW YORK CONVENTION CENTER OPERATING CORPORATION, DEFENDANTS, NEW YORK CONVENTION CENTER OPERATING CORPORATIO|
|Case Date:||January 23, 2002|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
May 25, 2001
Appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge), entered October 10, 1997 and September 25, 2000, dismissing plaintiffs' complaint brought under 42 U.S.C. § 1983 by granting in part defendants' motion to dismiss and granting defendants' motion for summary judgment.
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Kevin Costello, Flushing, Ny, for Plaintiffs-Appellants.
Steven E. Obus, Proskauer Rose Llp, New York, Ny, for Defendants-Appellees.
Before: Walker, Chief Judge, Katzmann, and Cudahy,1 Circuit Judges.
Richard D. Cudahy, Circuit Judge
The plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge), entered October 10, 1997 and September 25, 2000, dismissing their complaint brought under 42 U.S.C. § 1983. This judgment was based on two orders issued by the district court; the first granted in part defendants' motion to dismiss, Sacco v. Pataki, 982 F.Supp. 231 (S.D.N.Y. 1997), and the second granted defendants' motion for summary judgment, Sacco v. Pataki, 114 F.Supp.2d 264 (S.D.N.Y. 2000).
The appellants, 191 members of Local 829 of the Exposition Worker's Union, filed their complaint in December 1996, and this action was consolidated with a similar one brought by the present and former members of the Truck Drivers Local Union 807 of the International Brotherhood of Teamsters.2 The appellees are the New York Convention Center Operating Corporation (NYCCOC) and Robert E. Boyle, President and Chief Executive Officer of the NYCCOC.3 The complaint challenges various changes in hiring practices, which resulted in plaintiffs not being hired for work at the Javits Center, and various statements made by the appellees in the context of publicized allegations of corruption and mob infiltration at the Center.
The appellants appeal from the district court's dismissal of their claim that the NYCCOC deprived them of a property interest in their employment at the Javits Center without due process. They also appeal the grant of summary judgment on their claim that statements made by the appellees to the media deprived them of a liberty interest in other employment without due process.
For the reasons set forth below, we affirm the judgment of the district court.
Because we are reviewing defendants' motion to dismiss and a motion for summary judgment, we recount and review the facts as alleged in the complaint in the light most favorable to the plaintiffs in a manner appropriate to the nature of the motion. McPherson v. Coombe, 174 F.3d 276, 279-80 (2d Cir. 1999); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993).
The NYCCOC is a public benefit corporation created by statute for the purpose of operating and maintaining the Javits Center-a large convention hall in New York City established in 1986. N.Y. Pub. Auth. Law § § 2560-2572 (McKinney 1995). The NYCCOC enters into license Page 98
agreements with various exhibitors entitling them to use the space at the Javits Center for trade shows and other events. Prior to the reorganization giving rise to the present litigation, the show managers of the tenant exhibitors usually hired general contractors to help move freight, erect and dismantle exhibit booths and lay rugs. Most of these contractors were members of the New York Trade Show Contractors' Association (TSA), which has had collective bargaining agreements with three different unions. The contractors typically selected employees from one of these unions for the various jobs maintained by the exhibitors. The appellants are members of one of these unions, Local 829 of the Exposition Worker's Union.
In November 1985, the NYCCOC entered into a memorandum of understanding (MOU) with a number of unions, including Local 829. The MOU provided, inter alia, that the work on exhibitions at the Javits Center would be performed by workers represented by certain specified unions-including Local 829. The appellants argue that this memorandum created a protectable property interest by "requiring a comprehensive system for employment of the plaintiffs pursuant to collective bargaining agreement [sic] and by providing that the Memorandum would not be modified or terminated without consent of the parties...." Appellants' Br. at 18.
Local 829 had collective bargaining agreements with various trade show contractors. These agreements provided that Local 829 would be the exclusive representative of employees who installed exhibits and booths for Javits Center trade shows and exhibitions.
The TSA arranged to provide much of the labor for the trade shows at the Javits Center. But in early 1995, concerns arose (with accompanying publicity) about corruption at the Javits Center and its workers' ties to organized crime. At that time, Governor Pataki and Boyle made public statements indicating their intention to clean up the reported corruption. In June 1995, the NYCCOC decided to hire workers directly instead of through the contractors, and to enter into its own collective bargaining agreements with unions certified to represent the new workers. The new labor force would be divided into two bargaining units and would consist of members of two unions, one representing employees handling freight and the other for booth erectors. Boyle also distributed a letter indicating his intent to "formally disavow and terminate" the MOU.
Local 829 agreed to the reduction in the number of unions involved from three to two, after seeking and receiving assurances that its own members would be rehired. In this recognition agreement, the NYCCOC pledged to recognize two unions as the collective bargaining representatives for the new workforce upon a showing that the majority of hired or rehired employees were members of those unions. On June 30, 1995, the appellants filled out applications for employment at the Javits Center. But the NYCCOC instead hired hundreds of new workers, not members of any of the unions that had previously been utilized for the Javits Center workforce. Only 15 to 20 of the approximately 200 members of Local 829 who applied were rehired. In July 1995, Local 829 requested arbitration pursuant to the recognition agreement with the NYCCOC that it had signed (agreeing to the reduction in the number of bargaining units). The union alleged that the NYCCOC had discriminated against it in hiring and certification processes, in violation of the recognition agreement. After the requested arbitration was concluded without a requirement that the NYCCOC recognize or hire any of Page 99
its members, appellants brought the instant suit.
We review de novo a district court's dismissal of a complaint for failure to state a claim, taking all factual allegations as true and construing all reasonable inferences in favor of the plaintiff. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Lee v. Bankers Trust Co., 177 F.3d 540, 543 (2d Cir. 1999). "Dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Lee, 177 F.3d at 543 (internal citations omitted). The appellants first argue that the district court incorrectly applied this procedure, and erroneously found that the plaintiffs had no protectable property interest in their employment; they had not, therefore, been deprived of property without due process of law.
To survive a motion to dismiss, a due process claim under section 1983 must allege the deprivation of a constitutionally protected interest. See Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994) (affirming dismissal of a section 1983 claim because plaintiff had no constitutionally protected property interest). In order to have an interest protectable under the Constitution, a person must have a "legitimate claim of entitlement to it." Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). An abstract need, desire or unilateral expectation is not enough. See id. Employees at will have no protectable property interest in their continued employment. See Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 608-9 (2d Cir. 1983); see also Roth, 408 U.S. at 578 (stating that plaintiff had no claim of entitlement to reemployment where he was appointed to faculty position for one-year term only). But a protectable property interest may arise in a situation where an employee may be removed only for cause. See Arnett v. Kennedy, 416 U.S. 134, 151-52 (1974) (plurality). Indeed, in this circuit, a person may possess a protected interest in public employment if contractual or statutory provisions guarantee continued employment absent "sufficient cause" for discharge or he can prove a de facto system of tenure. See Goetz, 698...
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