Dwyer v. Regan
| Decision Date | 11 June 1986 |
| Docket Number | No. 84-7956,84-7956 |
| Citation | 793 F.2d 457 |
| Parties | Francis J. DWYER, Plaintiff-Appellant, v. Edward V. REGAN, Individually and as Trustee and Administrative Head of the New York State Employees Retirement System, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Eileen M. Kelley, Albany, N.Y. (William F. Sheehan, Hinman, Straub, Pigors & Manning, P.C., Albany, N.Y., on brief), for plaintiff-appellant.
William J. Kogan, Asst. Sol. Gen., Albany, N.Y. , for defendant-appellee.
Before TIMBERS, NEWMAN and KEARSE, Circuit Judges.
Appellee having moved for rehearing of the above case and for modification of this Court's decision filed on November 21, 1985, 777 F.2d 825, and appellant having filed a brief in opposition, it is hereby
ORDERED that the opinion filed on that date, officially reported at 777 F.2d 825-37, be modified at page 833 in the following respects:
(1) The first full paragraph, beginning "Nonetheless," is deleted, and the following is substituted in its place:
We recognize, of course, that a state may well, from time to time, decide to make its operations more efficient by abolishing or consolidating positions or by implementing a considered substantial reduction in its work force. We are not persuaded that the state must routinely provide hearings for employees whose positions are targeted for elimination whenever the state adopts such efficiency measures. Where, however, as here, there is no indication that the state has undertaken substantial measures such as these but rather is alleged to have targeted a single employee for termination, we hold that if the...
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...the factual allegations of the Complaint must be accepted as true, Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985), modified, 793 F.2d 457 (1986), and a complaint must be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). ......
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