Jessamy v. City of New Rochelle, New York

• Decision Date: 19 November 2003
• Docket Number: No. 02 CIV. 10148(WCC).,02 CIV. 10148(WCC).
• Parties: Dwaine JESSAMY, Plaintiff, v. CITY OF NEW ROCHELLE, NEW YORK; Lewis Wendell, Deputy Commissioner of Development; Michael Ritchie, Commissioner; and Timothy Idona, Mayor, Defendants.
• Court: U.S. District Court — Southern District of New York

292 F.Supp.2d 498

Dwaine JESSAMY, Plaintiff, v. CITY OF NEW ROCHELLE, NEW YORK; Lewis Wendell, Deputy Commissioner of Development; Michael Ritchie, Commissioner; and Timothy Idona, Mayor, Defendants.

No. 02 CIV. 10148(WCC).

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

November 19, 2003.

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Law Offices of Sanford A. Kutner (Sanford A. Kutner, Esq., Of Counsel), Metairie, LA, for Plaintiff.

Law Office of Vincent Toomey, (Vincent Toomey, Esq., Thomas J. Marcoline, Esq., Of Counsel), Lake Success, NY, for Defendants.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiff Dwaine Jessamy brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 for damages and declaratory and injunctive relief against defendants City of New Rochelle (the "City"), Lewis Wendell, the City's Deputy Commissioner of Development, Michael Ritchie, the City's former Commissioner of Development and Timothy Idoni,¹ the City's Mayor. (Complt. ¶¶ 1, 3-7.) Plaintiff claims that defendants violated his Fourteenth Amendment rights when they acted under color of law and pursuant to official policy in connection with his employment by the City and: (1) discriminated against him on the basis of his race; (2) harassed him on the basis of his race; and (3) conspired to violate his Fourteenth Amendment rights.² (Id. ¶¶ 20-22.) Defendants move this Court to dismiss plaintiff's Complaint pursuant to FED. R. CIV. P. 12(b)(5) for insufficiency of service of process. (Defs. Mem. Supp. Summ. J. at 9-12.) Defendants also move to dismiss plaintiff's Complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and alternatively, for summary judgment pursuant to FED. R. CIV. P. 56. (Id. at 1, 12-29.) With respect to defendants' Rule 12(b)(5) motion, which must be addressed before turning to the merits of the case,³ we will deny that motion as we assume without deciding that plaintiff's service of process was proper.⁴ For the reasons set forth herein, the Court converts defendants' Rule 12(b)(6) motion into one for summary judgment pursuant to Rule 56 and grants defendants' motion for summary judgment dismissing plaintiff's claims: (1) against the City and the individual defendants in their official capacities; and (2) against defendants for harassment and racial discrimination. The Court also dismisses plaintiff's remaining claims, without leave to replead.

BACKGROUND

I. Procedural Posture of Defendants' Motion

The procedural posture of this case affects directly the source of the facts contained herein. The court may convert a motion to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(6) into a FED. R. CIV. P. 56 motion for summary judgment if it relies on material outside of the pleadings and the opposing party has both notice of the court's intent and the opportunity to respond with extrinsic material outside of the pleadings. Washington v. County of Rockland, 211 F.Supp.2d 507, 512 n. 8 (S.D.N.Y.2002) (Conner, J.) ("However, because this Court relies on material outside of the pleadings in deciding this motion, treating the instant motion as one under 12(b)(6) is inappropriate."); Metrokane, Inc. v. Wine Enthusiast, 185 F.Supp.2d 321, 325 (S.D.N.Y.2002) (Conner, J.) (citing Green v. Doukas, 205 F.3d 1322, 2000 WL 236471, at *2 (2d Cir.2000), and In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir.1985), for the proposition that notice by the opposing party is the "essential inquiry"). This Court has held that a plaintiff has had the requisite notice when it responds to the defendants' "explicit request" for conversion of a motion to dismiss to one for summary judgment by submitting extrinsic materials of its own. Metrokane, Inc., 185 F.Supp.2d at 325.

In the instant case, defendants' notice of motion expressly states that they seek summary judgment, and the motion papers include a multitude of supporting affidavits and exhibits in addition to a Rule 56.1 Statement. (Defs. Notice of Mot.) Plaintiff's opposition memorandum acknowledges expressly the nature of defendants' motion by citing the Rule 56 standard of review and by arguing that he "has unequivocally established there exists a genuine issue of material facts that should be properly triable by a jury." (Pl. Mem. Opp. Summ. J. at 1.) Moreover, plaintiff's opposition memorandum discusses expressly facts that go beyond the allegations contained in the Complaint, albeit without the aid of supporting citations. (Id. at 3-5.) Accordingly, we conclude that plaintiff had the requisite notice of the nature of defendants' motion and that it is appropriate to treat defendants' motion as one for summary judgment.

Defendants accompanied their Motion to Dismiss and For Summary Judgment with a Statement of Undisputed Facts, as is required by Local Rule 56.1.⁵ Plaintiff, however, did not file with his response the required counter-statement admitting or denying these facts. Generally, the "plaintiffs' failure to respond or contest the facts set forth by the defendants in their Rule 56.1 statement as being undisputed constitutes an admission of those facts, and those facts are accepted as being undisputed." NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd., 262 F.Supp.2d 134, 139 (S.D.N.Y.2003); see also Millus v. D'Angelo, 224 F.3d 137, 138 (2d Cir.2000) (concluding that there was no genuine issue of material fact to be tried following plaintiff's failure to deny defendants' allegations in Rule 56.1 statement). This Court endeavors, however, to avoid penalizing parties harshly as a result of technical errors by their attorneys, and "will deem the facts set forth in plaintiff's memorandum of law sufficient to satisfy Rule 56.1 to the extent that the rule is otherwise complied with. However, where a stated fact is nowhere controverted, it will be deemed admitted." Williams v. R.H. Donnelley, Inc., 199 F.Supp.2d 172, 173 n. 1 (S.D.N.Y.2002) (Conner, J.); see also Shepard v. Frontier Comms. Servs., Inc., 92 F.Supp.2d 279, 284 (S.D.N.Y.2000) (Conner, J.) ("However, plaintiff's Rule 56.1 statement includes several statements of disputed facts that are not supported by a citation to the record.... Although not grounds for deeming all of the material facts set forth by defendants' Rule 56.1 statement as true, this Court will not consider any statements made by plaintiff in her Rule 56.1 statement that are not supported by a citation to the record."). In the present case, plaintiff's brief in opposition to defendants' motion contains a Statement of Facts. That statement is, however, of minimal helpfulness to the Court because it is not supported by citations to admissible evidence in the record. (Pl. Mem. Opp. Summ. J. at 2-5.) Thus, we are left with no choice but to treat as admitted all statements of fact contained in defendants' Rule 56.1 Statement that are supported and verified by admissible evidence contained in the record. Accordingly, we now turn to defendants' Rule 56.1 Statement for an account of the underlying facts.

II. Facts

The City employed plaintiff, an African-American male, from April 1994 until June 30, 2002 as a rehabilitation specialist in the City's development department.⁶ (Defs. Rule 56.1 Stmt. ¶¶ 2-4; Complt. ¶¶ 3, 8-9, 14.) In that position, plaintiff was responsible for coordinating the residential rehabilitation program, which provided City-subsidized home improvement loans to qualified City residents. (Defs. Rule 56.1 Stmt. ¶ 7; Complt. ¶ 10.) In addition to advising homeowners and tenants who sought to rehabilitate their residential properties, plaintiff also was responsible for obtaining and monitoring contractors that performed the actual rehabilitation work. (Defs. Rule 56.1 Stmt. ¶ 7.) Plaintiff's 2002 annual salary was $68,480 and he received benefits pursuant to a union contract that included paid sick and vacation time and health insurance contributions. (Id. ¶ 6.) From 1998 through 2001, the residential rehabilitation program performed an average of ten, but not more than fourteen home improvement projects per year. (Id. ¶ 9; Wendell Aff. ¶¶ 7-8.) The development department and its residential rehabilitation program are funded with City money that includes the proceeds from an annual Community Development Block Grant ("CDBG") from the Department of Housing and Urban Development ("HUD"). (Defs. Rule 56.1 Stmt. ¶¶ 12, 16.)

During 2001, the City consolidated the development department's offices from several different buildings into a single office at City Hall. (Id. ¶ 31.) Wendell, the Deputy Commissioner of Development, asked plaintiff to assist with this move by helping to pack and move boxes, a task that Wendell and other department employees performed as well. (Id.) Plaintiff refused to assist with the department's relocation.⁷ (Id.) The City has an antidiscrimination and harassment policy and complaint procedure that prohibits harassment based on, inter alia, race, a copy of which was given to plaintiff. (Id. ¶ 32.) Neither plaintiff nor his union ever filed a complaint or grievance against Wendell pursuant to the policy. (Id. ¶¶ 32-33.)

Thereafter, as a result of declining revenues,⁸ the City faced a fiscal crisis that resulted in significant budget cuts in 2002. (Id. ¶ 10.) Specifically, the City reduced its appropriated expenditures for 2002 by $109 million, but still had to draw upon its fund balance. (Id. ¶ 14.) The reduced expenditures led to a variety of program and service cuts, which included removing a fire truck from service, deferring the hiring of police officers, reducing contributions to self-insurance funds and eliminating 14.5 employee positions. (Id. ¶ 15; Allen Aff., Ex. A at v.) Among these budget cuts, HUD reduced the City's 2002 CDBG from $2,041,000 to $1,961,000, a diminution of $80,000. (Defs. Rule 56.1 Stmt. ¶ 13.) As a result of the CDBG reduction and the shortage of other funds in the City's...