Opinion
00 CIV. 7417 (DLC)
July 19, 2002
Russell Bogart New York, NY., Rick Ostrove Leeds, Morelli Brown, P.C. Carle Place, NY., For plaintiff.
Paul Marks Office of the Corporation Counsel of the City of New York, New York, NY., For Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Russell Bogart ("Bogart") filed this employment discrimination action on September 29, 2000, alleging that his employer, the New York City Law Department ("Law Department"), maintained a hostile work environment of religious and ethnic discrimination. On June 19, 2001, Bogart moved for leave to amend his complaint to add six additional defendants and three causes of action, as well as to clarify certain facts regarding his claims.
In an Opinion dated December 20, 2001, this Court granted Bogart's request to add Michael Hess, G. Foster Mills, Leonard Koerner, and Larry Sonnenshein as defendants. Bogart v. New York City Law Dept., 2001 WL 1631986, at *10 (S.D.N.Y. Dec. 20, 2001) The Court denied Bogart's request to add Daniel Connolly ("Connolly"), Linda Howard ("Howard"), and the Law Department as defendants and to amend his complaint to add a First Amendment claim, a Fourteenth Amendment claim, a claim of retalitory discrimination based on the defendants' litigation tactics, a claim under New York Civil Rights Law § 40-c, and a claim for constructive discharge. Id.
On April 11, 2002, Bogart ("Bogart") filed a Notice of Appearance in this action. By letter dated April 8, 2002, Bogart's counsel stated that Bogart desired to appear to submit a motion for reconsideration of the December 20 Opinion "based upon recent Supreme Court case law." By Order dated April 18, 2002, this Court granted Bogart's application to appear "to the extent that it is based on a request to present an argument stemming from a Supreme Court decision issued after December 20, 2001." The Court established page limits according to which Bogart's motion and defendants' opposition would be limited to five pages in length and Bogart's reply would be limited to three pages in length. The Court also ordered that Bogart may not appear for any other purpose in connection with his employment discrimination action without prior written application to this Court.
In a three page letter to the Court dated April 26, 2002, Bogart requested that he be permitted to file a twenty-five page memorandum in support of his motion for reconsideration. By memo endorsement dated April 30, 2002, this Court denied Bogart's application for a page extension. The Court also noted that "[t]his three page letter violates in several respects the Court's order of April 18" and "reminded [Bogart] that the only subject for any submission is any Supreme Court decision issued after December 20, 2001."
The Supreme Court case that Bogart cites in support of his motion for reconsideration is Swierkiewicz v. Sorema, N.A., 122 S.Ct. 992 (2002) . In Swierkiewicz, the Supreme Court held that "an employment discrimination plaintiff need not plead a prima facie case of discrimination." Id. at 999. The Court held that the Second Circuit's heightened pleading standard in employment discrimination cases "conflicts with Federal Rule of Civil procedure 8(a)(2), which provides that a complaint must include only a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 998. Nevertheless, a plaintiff in an employment discrimination action must "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Bogart argues that Swierkiewicz requires the granting of each request in his motion to amend that this Court previously denied.
Swierkiewicz, however, has no relevance to the grounds on which Bogart's requests to amend his complaint to add a First Amendment claim, a Fourteenth Amendment claim, a New York Civil Rights Law § 40-c claim, and a constructive discharge claim were denied. Nor does it have any relevance to the denial of Bogart's request to add the Law Department as a defendant.
The denial of Bogart's request to add Daniel Connolly, Special Counsel to the Law Department, and Linda Howard, the Law Department's Equal Employment opportunity Officer, as individual defendants is also unaffected by the Supreme Court's holding in Swierkiewicz. As was set forth in the December 20 Opinion, Connolly and Howard can be held liable for the alleged deprivation of Bogart's civil rights only if they were personally involved in that violation. Bogart, 2001 WL 1631986, at *4. Bogart has not alleged any personal involvement by Howard or Connolly beyond the receipt of forwarded e-mails. The e-mails concerned a dispute between Bogart and a supervisor over whether Bogart's status as a plaintiff in his own personal injury action created a conflict of interest such that he should not represent the City in an appeal in a personal injury action. Bogart does not allege that either defendant was aware of any violation of his rights under federal law. Bogart's allegations against Connolly and Howard fail to meet even the minimum standard adopted by Swierkiewicz.
Finally, Bogart's request to amend his complaint to add a claim of retalitory discrimination based on defendants' litigation tactics was denied because none of the conduct Bogart adduced in support of that request constituted an adverse employment action. Nothing inSwierkiewicz changes this result.
For the reasons stated, Bogart's motion for reconsideration is denied.