Islamic Society of Fire Dept. v. City of Ny

• Decision Date: 11 June 2002
• Docket Number: No. 00 CV 3075 ILG.,00 CV 3075 ILG.
• Citation: 205 F.Supp.2d 75
• Parties: ISLAMIC SOCIETY OF FIRE DEPARTMENT PERSONNEL and Kevin James, on behalf of himself and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 75

205 F.Supp.2d 75

ISLAMIC SOCIETY OF FIRE DEPARTMENT PERSONNEL and Kevin James, on behalf of himself and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.

No. 00 CV 3075 ILG.

United States District Court, E.D. New York.

June 11, 2002.

COPYRIGHT MATERIAL OMITTED

Robert T. Perry, Esq., Center for Constitutional Rights, New York.

Laura H. Corvo, Esq., Assistant Corporation Counsel, New York.

MEMORANDUM & ORDER

GLASSER, District Judge.

Plaintiffs Islamic Society of Fire Department Personnel (the "Islamic Society") and Kevin James ("James") (collectively, "Plaintiffs") have moved the Court for leave to file a Second Amended Complaint. Defendants City of New York, Mayor Rudolph Giuliani, Fire Commissioner Thomas Von Essen, First Deputy Fire Commissioner William Feehan, Fire Department Chief Joseph Casaburi, Chief Fire Marshal Louis Garcia, and Chief of Staff Michael Vecchi (collectively, the "City Defendants") oppose Plaintiffs' motion on the ground that the proposed additional claims are futile.¹ For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part.

BACKGROUND

The Islamic Society is a non-profit, fraternal membership organization incorporated and existing under New York law. (See Proposed Sec. Am. Compl. ¶ 20.) The Islamic Society is a "line organization" of the Fire Department of the City of New York ("FDNY"). (Pl. Mem. at 2.)² Members of the Islamic Society are current and former personnel of the FDNY who are "primarily of the Islamic faith." (Id.) The Islamic Society was formed in 1997 to "represent Muslim FDNY employees and act as an interface between the FDNY and the Muslim community in New York City." (Id.) Plaintiff James is a founding member, and the current President, of the Islamic Society, and is a Fire Marshal with the FDNY. (Id. ¶ 24.)

Plaintiffs allege that the City Defendants—which include the City, the former Mayor and various senior FDNY personnel—have engaged in a "longstanding pattern" of discrimination against Muslim employees of the FDNY. This purported discrimination allegedly includes, among other things, having denied the Islamic Society the same privileges granted to other line organizations (see Pl. Mem. at 2); refusing to appoint a Muslim chaplain (see id.); and retaliating against Muslim employees who have complained about this alleged discrimination (see id.).³

On June 23, 2000, Plaintiffs commenced this purported class action to remedy the alleged discrimination. At that time, Plaintiffs also sought a mandatory injunction compelling the City Defendants to appoint a Muslim chaplain in the FDNY. (See Perry Aff. ¶ 4.) At an initial status conference, Plaintiffs agreed to limit the initial discovery in this case to class certification issues and Plaintiffs' preliminary injunction motion. (Id.)

In June of 2001, the FDNY apparently decided to hire a Muslim chaplain. (See id. ¶ 7.) Once advised of the FDNY's decision, Plaintiffs agreed (i) not to seek class certification, (ii) to stay all discovery, and (iii) to attempt to resolve the remaining issues in this case. (See id. ¶ 8.) Plaintiffs and the Majlis Ash-Shura (the Islamic Leadership Council of New York City) then recommended that Imam Muhammad Abdulmalik be given the chaplain job. (See id.) The FDNY agreed to interview Imam Abdulmalik. (See id.)

However, Plaintiffs allege that by the time the FDNY actually interviewed Imam Abdulmalik (in August 2001), the FDNY had already decided to hire Dr. Abd'allah A. Adesanya as the Muslim chaplain. (See id. ¶¶ 10, 13-14.) In doing so, Plaintiffs contend that the FDNY "departed from its usual practice of deferring to the leadership of the respective religious communities in New York City when selecting chaplains of the respective faiths." (Id. ¶ 12.) Furthermore, Plaintiffs assert that Dr. Adesanya's credentials "pale in comparison to Imam Abdulmalik's" (id. ¶ 14), and that the FDNY has proffered no reason why Dr. Adesanya was chosen over Imam Abdulmalik (id.).

In light of these events, Plaintiffs now seek leave to amend their complaint to add four new claims against the City Defendants, each of which is based on the decision not to hire Imam Abdulmalik as the FDNY's Muslim chaplain. In the first claim (referred to hereinafter as "Proposed Claim 1"), Plaintiffs allege that, in rejecting Imam Abdulmalik as the Muslim chaplain, the City Defendants discriminated against them based on their religion, in violation of Title VII. In the second claim ("Proposed Claim 2"), Plaintiffs allege that the City Defendants, in violation of Title VII, refused to hire Imam Abdulmalik in retaliation for Plaintiffs' decision to (i) bring this lawsuit and (ii) publicly criticize the FDNY's decision to hire Edward McMellon.⁴ The third claim ("Proposed Claim 3") is based on the same allegations as the second claim, but alleges a violation of the First Amendment instead of Title VII. In the fourth claim ("Proposed Claim 4"), Plaintiffs allege that, as a result of the decision not to hire Imam Abdulmalik, the City Defendants violated the First Amendment's Establishment Clause. (See Pl. Mem. at 5.)

The City Defendants oppose Plaintiffs' motion for leave to amend. According to the City Defendants, each of Plaintiffs' newly added claims fails as a matter of law, and thus the proposed amendment is futile. (See Def. Mem. at 5-11.) Specifically, the City Defendants argue that Proposed Claims 1-3 fail because (i) Plaintiffs have not suffered an "adverse employment action" due to the decision not to hire Imam Abdulmalik, and (ii) Plaintiffs cannot establish a causal connection between their protected activities and the allegedly "adverse" action. (See id. at 5-9.) The City Defendants further argue that Proposed Claim 4 fails because Plaintiffs have not suffered a "palpable injury" sufficient to establish their standing to sue under Article III of the Constitution. (See id. at 9-11.)

DISCUSSION

I. Motion to amend principles

The decision whether to grant or deny a motion for leave to amend a complaint is within the sound discretion of the Court, see, e.g., O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir.2002) (citation omitted); Krumme v. WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir.1998) (citations omitted), though leave to amend should be "freely given when justice so requires," Fed.R.Civ.P. 15(a). It is proper to permit an amendment to a complaint to "set[] forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed.R.Civ.P. 15(d). A motion seeking leave to add such transactions or occurrences should be evaluated under the same liberal standard as a motion for leave to amend under Rule 15(a). See, e.g., 3 James Wm. Moore et al., Moore's Federal Practice § 15.30 (3d ed. 2000) ("The same principles that support the liberal amendment of pleadings also apply to supplemental pleadings [under Rule 15(d)]."); Novak v. Nat'l Broad. Co., 724 F.Supp. 141, 145 (W.D.N.Y.1989) ("Although Rule 15(d) does not include Rule 15(a)'s mandate that leave to amend be freely given when justice so requires, the same standards apply to motions under both these subdivisions of Rule 15.") (citation omitted).

In determining whether leave to amend should be granted, the Court should consider the futility of the proposed amendment. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). However, Second Circuit courts have also held that, in certain circumstances, it is appropriate to deny leave to amend where the proposed amendment could not withstand a motion for summary judgment. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (appropriate to deny motion for leave to amend filed in response to summary judgment motion where proposed new claims would not survive summary judgment); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (affirming district court's decision denying leave to amend complaint where facts demonstrated proposed amendments failed as a matter of law); Stoner v. N.Y.C. Ballet Co., No. 99 Civ. 0196, 2002 WL 523270, at *14 n. 10 (S.D.N.Y. Apr.8, 2002) (denying motion for leave to amend seeking to add claim which "might survive a motion to dismiss" because "the claim would ... be subject to dismissal on a motion for summary judgment"); 131 Maine St. Assocs. v. Manko, 179 F.Supp.2d 339, 345 n. 5 (S.D.N.Y.2002) ("leave to amend will be denied if the proposed amended complaint could not survive a summary judgment motion"); Azurite Corp. v. Amster & Co., 844 F.Supp. 929, 939 (S.D.N.Y.1994) (denying plaintiff leave to amend complaint where proposed amendment "would be futile because the factual foundations of [plaintiff's] new allegations are insufficient, as a matter of law, to withstand defendants' motion for summary judgment"), aff'd, 52 F.3d 15 (2d Cir.1995).⁵

II. The Motion Should Be Denied Vis-a-Vis Proposed Claims 1-3

Proposed Claims 1-3 allege discrimination (Proposed Claim 1) and retaliation (Proposed Claim 2) in violation of Title VII, and retaliation in violation of the First Amendment (Proposed Claim 3). All of these claims are predicated on the City Defendants' decision to hire Dr. Adesanya, and not Imam Abdulmalik, as the FDNY's Muslim chaplain. (See Pl. Mem. at 5; Pl. Reply at 1-2.)

The City Defendants argue that, in order to state a prima facie case on each of these claims, Plaintiffs must demonstrate that they have suffered an "adverse employment action." (See Def. Mem. at 6-7.) According to the City Defendants, the decision to hire Dr. Adesanya instead of Imam...