Appealing a federal district court's dismissal of civil rights complaints brought pursuant to 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964

In this appeal to the United States Court of Appeals for the Second Circuit, Petitioner challenged a federal district court’s dismissal of her claims under 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964 against the State University of New York at Albany [SUNY Albany] and several named SUNY Albany administrators [Administrators].  The district court had granted SUNY's motion to dismiss the Petitioner's lawsuit, ruling that SUNY Albany is immune from suit, that Petitioner’s due process claims could have been raised in an Article 78 proceeding in New York state court, and that Petitioner failed to plausibly allege an unlawful conspiracy, an equal protection violation, or a Title VI violation.

The district court did permit Petitioner to amend only her equal protection claim but Petitioner failed to file an amended complaint. The district court subsequently dismissed her equal protection claim with prejudice. Petitioner appealed the district court's ruling to U. S. Circuit Court of Appeals [Appeals], Second Circuit.

Noting that pro se submissions are construed liberally to raise the strongest arguments they suggest, Appeals observed that "a pro se complaint must nonetheless contain factual allegations sufficient to meet the plausibility requirement, citing Hill v. Curcione, 657 F.3d 116.

Addressing Petitioner's "Constitutional Claims", Appeals concluded that the district court correctly held that her constitutional claims against SUNY Albany are barred by the Eleventh Amendment, which precludes suits by citizens against states unless the state expressly waives its immunity or Congress abrogates that immunity. Here, said Appeals, “For Eleventh Amendment purposes, SUNY is an integral part of the government of the State of New York and when it is sued the State is the real party” and New York has not waived its immunity, nor has Congress abrogated it.

As to Petitioner argument that New York waived its sovereign immunity in §8 of the Court of Claims Act, Appeals explained that the §8 waiver Plaintiff relied upon applies only to actions against the State in the Court of Claims and thus the district court correctly dismissed Petitioner’s claims against SUNY Albany.

Turning to Petitioner’s due process claim, Appeals opined that the district court correctly held that Petitioner received due process in the face of allegedly random and unauthorized state conduct. Petitioner. said Appeals, "apparently availed herself of SUNY Albany’s internal complaint procedures" and could also have commenced an Article 78 proceeding in New York state court to challenge the denial of her grade-change program related request and her dismissal from the program. This satisfied "the requirements of due process" and thus Petitioner failed to state a claim.

Considering Petitioner’s equal protection claim, Appeal's decision notes that "To state an equal protection claim, a plaintiff must allege that the defendant discriminated against her on the basis of her membership in a protected class, such as race or national origin. Here, however, Appeals held that the district court correctly dismissed Petitioner’s equal protection claim as Petitioner failed "to plausibly allege that she was treated differently based on her membership in a protected class" and failed to allege the existence of similarly situated comparators.

Although Petitioner contended that SUNY Albany's treatment of her violated SUNY Albany policy, she does not adequately allege or argue that Administrators treated other students differently. Moreover, Appeals said this conclusory allegation fails to establish that the other students were “similarly situated” or, for a class-of-one claim, “prima facie identical.” Accordingly, Petitioner’s equal protection claim was properly dismissed.

Appeals also rejected the arguments advanced by Petitioner based on membership in "a protected class," her allegations that her treatment was motivated by discriminatory animus, her intellectual property claim and her Title VI claim. In addition Appeals found that the district court correctly dismissed Petitioner’s § 983 conspiracy claim, citing Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 and that "conclusory, vague, or general allegations” that the defendants engaged in a conspiracy fail to state a claim.

Finally, Appeals held that the district court did not err by denying Petitioner leave to amend as a district court properly denies leave to amend if the amendment would be futile. Here, said Appeals, "the existence of Article 78 relief barred her procedural due process" and her equal protection claims. Similarly, any amendment to Petitioner’s intellectual property, conspiracy, and Title VI claims would have been futile for the reasons stated above. As far as Petitioner’s challenge to the district court’s later dismissal of her equal protection claim with prejudice, "she failed to file an amended complaint as directed by the district court, and therefore failed to demonstrate that further opportunity to amend would not have been futile."

Click HERE to access the Circuit Court's ruling.

University of Alabama asks employees to sign confidentiality agreement

On October 8, 2021, Inside Higher Ed posted on item on the Internet written by Emma Whitford reporting that the "U of Alabama Asks Employees to Sign Confidentiality Agreement."

Click HERE to access the Internet posting of this item.

Audits and reports issued during the week ending October 8, 2021 by the New York State Comptroller

On October 8, 2021, New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued.

Click on the text highlighted in color to access the complete audit report.

 STATE DEPARTMENTS AND AGENCIES.

 

Department of Civil Service: New York State Health Insurance Program – Payments by CVS Health for Pharmacy Services for Ineligible Members (2020-S-17) From Jan. 1, 2014 through Dec. 31, 2019, auditors identified 132,051 claims, totaling $30,695,221, that were paid for pharmacy services provided during periods when members were not eligible. Further, Civil Service paid CVS Health $170,359 in administrative fees for processing these claims.  

 

Department of Civil Service:  New York State Health Insurance Program – Payments by UnitedHealthcare for Medical/Surgical Services for Ineligible Members (2020-S-34) Auditors identified $5.7 million that United paid for members who were not eligible for Empire Plan coverage. The improper payments occurred because the member was retroactively disenrolled ($4.6 million), or the claims were paid for services that occurred either before a member was enrolled or after United was notified the member was disenrolled ($1.1 million).

 

State Board of Elections (BOE): Use of Federal Funding for Election Technology and Security (2020-S-18) Generally, the BOE has utilized available funding from its Help America Vote Act Election Security Grant to enhance the state’s election technology and infrastructure. Specifically, the BOE has planned for and spent funds for the activities described in its cybersecurity plan. Although a portion of the funds remains unspent as of February 2021, the BOE has designated the remaining funds for ongoing, multi-year initiatives that continue to address constantly evolving cybersecurity threats and enhance election infrastructure and security.  

 

Department of Health (DOH): Oversight of Registration, Licensing, and Inspection of Radioactive Materials (RAM) Facilities and Radiation Equipment Facilities (2019-S-64) DOH completed 94% of RAM facility and radiation equipment facility inspections on time; however, it completed 44% of those inspections beyond the established 1- to 5-year inspection time frames by relying on a buffer intended to allow for more flexibility and extensions to the inspection intervals for staff time and travel. DOH did not complete all license actions within its 1-year benchmark. For example, as of July 20, 2020, DOH had not completed 55 licensing actions that were beyond the 1-year benchmark. This could potentially jeopardize the quality of the department’s licensing program, which can have a direct bearing on public health and safety, as well as security. 

 

Department of Health (DOH): Medicaid Program – Claims Processing Activity April 1, 2020 Through Sept. 30, 2020 (2020-S-22)

The audit identified over $9.7 million in improper Medicaid payments that require DOH’s prompt attention, including: $4.5 million paid for an incorrect retroactive rate adjustment; and $2.1 million paid for inpatient claims that were billed at a higher level of care than what was actually provided. By the end of the audit fieldwork, about $6.8 million of the improper payments had been recovered. 

 

Department of Health: Medicaid Program – Cost Saving Opportunities on Payments of Medicare Part C Claims (2020-S-65) New York’s current Medicaid payment rules for Medicare Part C cost-sharing liabilities compared to the allowable alternatives have significantly different costs to the Medicaid program. If New York Medicaid had limited its cost-sharing so that the total payment (Medicare’s payment plus what Medicaid was billed for the copayment or coinsurance) was no more than the typical Medicaid fee, it could have saved over $419 million from July 1, 2016 to Dec. 31, 2020. Other states already use this approach, and it is similar to how New York Medicaid currently pays Medicare Part B cost-sharing. Using this reimbursement formula, auditors estimate the state could save over $122 million annually. 

 

State Education Department (SED): Review of Advance Contract Payments (2019-BSE2-01) For the period of July 2012 through July 2018, SED made 216 advance payments totaling $546,625 to 113 contractors whose 25 percent advance payment was the only expenditure made under the contract prior to its expiration. These contacts had a total value of nearly $2.2 million. Auditors selected 13 contracts valued at $224,000 ($56,000 in advance payments) for review and found SED did not obtain any reports from the 13 contractors documenting how the advance funds were expended. As a result, SED needed to improve its contract monitoring to ensure contractors expended advanced funds in accordance with the terms and conditions of the contracts. 

 

State Education Department (SED): Westchester County Chapter NYSARC Inc. (WARC) – Compliance With the Reimbursable Cost Manual (2020-S-27) WARC is an SED-approved, non-profit special education provider located in Westchester County, serving students from Westchester and Putnam counties. Among other programs, WARC provides preschool special education services to children with disabilities who are 3 and 4 years of age. WARC is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2016, auditors identified $49,605 in ineligible costs reported by WARC for reimbursement.  

 

Workers' Compensation Board: Assessment of Costs to Administer the Workers' Compensation Program for the Three State Fiscal Years Ended March 31, 2020 (2021-M-1) Auditors performed certain procedures, which were agreed to by the board, to ascertain the expenses it incurred in administering the program for the three State Fiscal Years ended March 31, 2020. On average, the board incurred $207 million in expenses, including about $6 million attributable to administering self-insurance, to administer the program for each of the three years. 

 

Office of General Services (OGS): Compliance With Executive Order 95 (Open Data) (Follow-Up) (2021-F-12) An audit covering the period March 11, 2013 through Dec. 6, 2019 found OGS had taken steps to meet the requirements of EO 95; however, certain aspects of the order were not fully addressed and there was limited assurance OGS provided a complete catalogue of its publishable state data or accompanying schedules for making that data public, as required. In a follow-up, auditors found OGS made limited progress in addressing the problems identified in the initial audit report.

Evaluating jurisdiction of courts to address claims of national origin discrimination, violation of Civil Service Law §75-b, sovereign immunity and subject matter jurisdiction

Supreme Court granted New York State Office of Temporary and Disability Assistance's [ODTA] CPLR §211 motion to dismiss the Petitioner's claims against it under the New York City Human Rights Law [City HRL] alleging national origin discrimination under the New York State Human Rights Law [State HRL], and for alleged violation of Civil Service Law §75-b.

The Appellate Division sustained the dismissal on the ground of sovereign immunity and lack of subject matter jurisdiction, citing Jattan v Queens Coll. of City Univ. of N.Y., 64 AD3d 540. Further, opined the court, Petitioner failed to identify "any independent duty on the part of [ODTA's Deputy Commissioner] to him, outside of the City HRL, which could serve as a vehicle for holding the State "secondarily liable for the tortious acts under respondeat superior".]

Addressing Petitioner's allegations of violation of Civil Service Law §75-b, the Appellate Division sustained Supreme Court's action, explaining that "claims under CSL 75-b are committed to the exclusive jurisdiction of the Court of Claims," citing Article VI, §9 and the Court of Claims Act §§ 8-9. Accordingly, said the Appellate Division, the lower court "properly severed and dismissed that cause of action for lack of subject matter jurisdiction."

With respect to Petitioner's cause of action alleging national origin discrimination against defendants OTDA and the Deputy Commissioner, the Appellate Division ruled "[l]iberally construing the complaint, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference," Petitioner's complaint asserted that [the Deputy Commissioner] was aware of a long chain of discrimination against [Petitioner] and condoned it." 

Further, the Appellate Division said "[i]t can also be inferred that [the Deputy Commissioner] was aware of [Petitioner's] national origin, and condoned the continuing discrimination and concurrent retaliation against him, culminating in the ultimate adverse action of termination of employment."

Accordingly, the Appellate Division reinstated the amended complaint's State HRL cause of action for national origin discrimination against OTDA and the Deputy Commissioner and the accompanying aiding and abetting discrimination claim against the individual defendants.

Click HERE to access the text of the Appellate Division's decision.