Hussey v. N.Y. State Dep't of Law

933 F.Supp.2d 399

Jeanna E. HUSSEY, Plaintiff,

v.NEW YORK STATE DEPARTMENT OF LAW/OFFICE OF ATTORNEY GENERAL, Hon. Governor Andrew Cuomo, James Rogers, Eugene Leff, Katherine Kennedy and Janice Dean in their Individual Capacities, Defendants.

No. 11–CV–0206 (RRM)(RLM).

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

March 20, 2013.

Jaha C. Smith, New York, NY, for Plaintiff.

Barbara K. Hathaway, Attorney General's Office, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

Plaintiff Jeanna E. Hussey brings this action against defendants New York State Office of the Attorney General (“OAG”), and James Rogers, Eugene Leff, Katherine Kennedy and Janice Dean in their individual capacities. ¹ She sues the OAG for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the individual defendants for race discrimination under 42 U.S.C. § 1983. (Second Am. Compl. (“Compl.”) (Doc. No. 7.) at 1, ¶ 1.) She also asserts a state law claim of defamation. ( Id.) Plaintiff alleges that defendants unlawfully failed to promote her to the position of Section Chief of the OAG's New York City Environmental Protection Bureau, hiring defendant Dean instead, that they removed her as lead attorney on a major case, and that they made defamatory statements about her work performance. (Compl. at 3–4, ¶ 13–14; 9, ¶ 42; 10, ¶ 46.)

On August 8, 2012, all defendants moved to dismiss the action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 15.) For the reasons that follow, defendants' motion is granted in its entirety and plaintiff's complaint is dismissed.

BACKGROUND

Upon information and belief, plaintiff Jeanna Hussey, an attorney with a background in environmental law, has been an Assistant Attorney General (“AAG”) at the OAG since 1999. (Compl. at 3, ¶ 9.) ² Between October 14, 1999 and February 27, 2011, she worked in the OAG's Environmental Protection Bureau. ( Id.) In February of 2011, she was transferred to the OAG's Consumer Fraud and Protection Bureau. Plaintiff alleges that events prior to this transfer constituted unlawful discrimination under Title VII and 42 U.S.C. § 1983.

First, plaintiff claims that defendants unlawfully failed to promote her because she is African American, promoting defendant Dean, who is white, instead. (Compl. at 4, ¶¶ 15–16; 5, ¶ 5.) In support, plaintiff alleges that in December 2008, plaintiff orally applied to defendant Katherine Kennedy, the Chief of the Environmental Protection Bureau, for the position of Toxic and Cost Recovery Section Chief. (Compl. at 3, ¶¶ 12–13.) The former Section Chief, defendant Eugene Leff, had recently been promoted to Deputy Bureau Chief, and plaintiff believed that she was qualified for his former position based on her extensive litigation experience and seniority in the Toxic Cost and Recovery Section. ( Id. at 3, ¶ 12; 4, ¶ 16.) In January 2010, Mr. Leff informed plaintiff that defendant Dean had been selected for the position of Section Chief. ( Id. at 3–4, ¶ 14.) Plaintiff alleges, “upon information and belief,” that the decision to deny her the promotion in favor of Ms. Dean was motivated by racial discrimination. ( Id. at 5, ¶ 21.) However, when plaintiff asked Kennedy why she hadn't received the promotion, Kennedy told plaintiff that plaintiff's writing needed improvement and that there was a concern that her duties as a single parent would interfere with increased responsibilities at work. ( Id. at 5, ¶ 20.) In addition to the non-discriminatory reasons that defendant Kennedy offered to plaintiff, plaintiff provides the Court with two more of her own. She alleges, “upon information and belief,” that if she had received the promotion, her salary would have eventually exceeded defendant Leff' s, and that “defendants Rogers, Leff and Kennedy did not want that scenario to happen.” ( Id. at 5, ¶ 24.) Plaintiff also alleges solely “upon information and belief, it was general knowledge in defendant's [ sic ] environmental protection bureaus that defendants Rogers and Dean had a personal relationship outside the office.” ( Id. at 5, ¶ 25.)

Despite these alternative explanations, plaintiff alleges “upon information and belief” that she “could only view ... Kennedy's response ... as being a pretext to cover up racial discrimination,” because defendant Dean had also received criticism on her written work product in the past. ( Id. at ¶ 21.) In support of her race discrimination theory, plaintiff argues (entirely “upon information and belief”) that there was policy of discrimination against African Americans with respect to hiring during Governor Andrew Cuomo's tenure as New York State Attorney General. ( Id. at 6, ¶¶ 27–30.) According to plaintiff, only twenty-five out of 800 attorneys employed by the OAG were African American, and of those twenty-five attorneys, only four were section chiefs. ( Id. at 7, ¶ 29.) Those four allegedly held those positions before Governor Cuomo was elected Attorney General. ( Id.) Plaintiff claims that the failure to promote her to Section Chief was a direct result of this alleged “policy and custom of disproportionate hiring and promoting.” ( Id. at 7, ¶ 31.)

Next, plaintiff alleges that her removal as lead counsel on State v. Next Millenium Realty (“ Next Millenium ”), a complex environmental litigation that she worked on between 2006 and 2010, was racially discriminatory. (Compl. at 7, ¶ 33; 9, ¶ 42; 14, ¶¶ 62–63.) As alleged by plaintiff, at some point between 2008 and 2009, defendants Leff and Kennedy tasked defendant Dean with preparing the State's privilege log in that case. ( Id. at 7, ¶ 34, 36.) In November, 2009, opposing counsel in Next Millenium complained that the State's log was deficient. ( Id. at 8, ¶ 37.) When the magistrate judge presiding over discovery asked plaintiff whether she had read the privilege log, she answered “no” on the record because defendant Dean had prepared the log and plaintiff had not personally reviewed it. ( Id.) The purported deficiencies in the log subsequently became the subject of a sanctions motion that the defendants in Next Millenium filed in March, 2010. ( Id. at ¶ 38.) Shortly after the motion was filed, plaintiff alleges “upon information and belief” that defendant Rogers “could be heard yelling in the open area where the secretaries, [other defendants] and other assistant attorney general's [ sic ] are located, that, ‘She (meaning plaintiff) fucked the case up.’ ” ( Id. at ¶ 39.) About a week later, plaintiff left for a scheduled vacation. ( Id. at ¶ 40.) Upon her return, defendant Rogers removed her as lead counsel on Next Millenium and instructed her to continue working on the case in a non-leadership capacity. ( Id. at 6–7, ¶ 41–42.) Plaintiff believes that she was used as a “black scapegoat” for defendant Dean's mistakes with respect to the privilege log and subsequent motion for sanctions. (Pl.'s Br. in Opp'n Mot. Dismiss (“Pl.'s Br.”) at 9.)

As alleged by plaintiff, defendants subsequently placed a “write-up in plaintiff's personnel file which alleged that plaintiff had been stealing time.” (Compl. at 8, ¶ 39; 10, ¶ 46.) This “write-up,” which is more aptly described as a counseling memo, was produced, upon plaintiff's information and belief, by defendant Dean at the instruction of defendants Rogers and Leff and placed in plaintiff's personnel file on June 22, 2010. ( Id. at 9, ¶ 44; 10, ¶ 46.) It contained a variety of criticisms pertaining to plaintiff's work ethic and work product, all of which plaintiff disputed in a written response that was also placed in her file. ( Id. at 11–13, ¶¶ 46–57.) Plaintiff alleges that she was encouraged to respond orally instead of in writing to the memo, and that because she chose to respond in writing she was subjected to increased supervision and assigned less challenging cases. ( Id. at 9, ¶ 45; 15, ¶ 69.)

Finally, plaintiff claims that defendants defamed her, though she does not identify which of the statements she describes are allegedly defamatory, or how. (Compl. at 1, ¶ 1.) As the Court construes the Complaint, plaintiff is referring to two statements: defendant Rogers' oral accusation that plaintiff “fucked the case up,” and the counseling memo that was placed in plaintiff's file following her removal as lead counsel from Next Millenium. Plaintiff claims that this memo was an attempt to blame her for errors made by defendant Dean and that it “defam[ed] her reputation by asserting untruths.” ( Id., at 11, ¶ 48; Pl.'s Br. at 8) Other than that, she pleads no facts pertaining to a defamation claim.

As a result of these events, plaintiff filed a discrimination claim with the New York State Department of Human Rights (“DHR”) on July 12, 2010. (Compl. at 13, ¶ 58.) She received a “right to sue” letter from that department dated October 29, 2010. ( Id. at 14, ¶ 66.) Plaintiff states that she is the only African American attorney in the Manhattan office of the Environmental Law Bureau and that defendants “have never treated another attorney in the environmental bureau as they have treated” plaintiff. ( Id. at 14, ¶¶ 62, 64.) She now claims that her reputation as an expert in toxic litigation has been damaged by defendants' actions and that defendants have “created an atmosphere” in which she does not feel comfortable working, which in turn has “affected her passion for environmental law.” ( Id. at 14–15, ¶ 67.) In addition, she claims that she “suffered and continues to suffer emotional harm.” ( Id. at 15, ¶ 71.)

STANDARD OF REVIEW

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiencyof a complaint. As required by Rule 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss, “a complaint must contain...