CASTRO v. SIMON LLP (2019)

SUMMARY ORDER

Ivon Castro, proceeding pro se, appeals from a judgment of the District Court (Donnelly, J.) dismissing her amended complaint. On appeal, Castro challenges only the District Court’s dismissal of her claims against Dina Simon and the City of New York for violating 42 U.S.C. § 1983 and New York Civil Service Law § 75. Those claims arose from her termination, allegedly without a hearing, as a Correction Officer with the New York City Department of Correction.¹ We assume the parties’ familiarity with the underlying facts and prior record of proceedings, to which we refer only as necessary to explain our decision to affirm.

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6), accepting the factual allegations of the complaint as true. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012). A pro se complaint must be “liberally construe[d] ․ to raise the strongest arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

The District Court dismissed Castro’s due process and New York Civil Service Law claims on the ground that, as a probationary employee at the time of her termination, Castro lacked a property interest in her continued employment and section 75 did not apply to her. In determining that Castro was a probationary employee, the District Court relied in part on documents attached to the defendants’ motion to dismiss, which indicated that Castro’s initial probationary period had been extended through the day after her termination. These documents were not “integral” to Castro’s complaint or subject to any other exception that would have permitted the District Court to consider them on a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The better course would have been to convert the motion to one for summary judgment, see Fed. R. Civ. P. 12(d), or to exclude the documents from consideration, see Palin v. N.Y. Times Co., 933 F.3d 160, 167 (2d Cir. 2019). Nonetheless, even without the defendants’ exhibits, documents incorporated into and attached to Castro’s amended complaint show that she was a probationary employee at the time of termination. Although Castro disputes whether the 24-month probationary period was applicable to her as a matter of the City personnel rules, she has not argued—either before the District Court or on appeal—that the 24-month probationary period and relevant extension had in fact expired prior to her termination. We therefore affirm, on this alternative ground, the District Court’s decision to dismiss Castro’s due process and section 75 claims.² With respect to Castro’s arguments under Rule 5.2.7(c) of the Personnel Rules of the City of New York, we affirm substantially for the reasons stated by the District Court.

Castro further argues that, even if she had been on probation, she was entitled to a hearing under In re Perry, 49 A.D.2d 309, 374 N.Y.S.2d 850 (1975), because the allegations of misconduct leading to her termination affected her reputation. But Perry involved a termination “predicated upon considerations reaching beyond the scope of [the probationary employee’s] job performance,” and the hearing in that case was required on that ground. Id. at 855. Castro’s termination was based entirely on allegations of job-related misconduct.

Castro’s argument that her termination was void because the termination letter was not issued directly by the Commissioner of Correction has previously been considered and rejected by New York State courts. See, e.g., In re Gagedeen, 170 A.D.3d 1013, 96 N.Y.S.3d 349, 351–52 (2019); In re Meighan, 164 A.D.3d 504, 77 N.Y.S.3d 871, 872 (2018).

We have considered Castro’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

FOOTNOTES

1.   In her appellate brief, Castro abandons any claims against Defendants-appellants Castro, Correction Officers’ Benevolent Association, Inc., Koehler & Isaacs LLP, Isaacs, and Maldonado. Her brief does not address the District Court’s dismissal of her § 1983 liberty interest claim, the dismissal of any equal protection claims, or the decision not to exercise supplemental jurisdiction over state law claims. We therefore deem any challenges on these grounds to be abandoned also. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995).

2.   Because we affirm on this ground, we need not consider the District Court’s alternative holding that, even if Castro had a protected property interest in continued employment, the availability of a post-deprivation hearing through Article 78 proceedings satisfied due process.