Harry v. McDonald

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

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:

JOSEPH H. HARRY, SR. : Civ. No. 3:21CV01355(SALM)

:

v. :

:

ANDREW J. MCDONALD, et al. : August 19, 2022

:

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RULING ON MOTION TO DISMISS [Doc. #17]

Plaintiff Joseph H. Harry, Sr. (“plaintiff”) brings this

action against seven current or former members of the

Connecticut Criminal Justice Commission, in their individual

capacities: the Honorable Andrew J. McDonald; the Honorable

Melanie L. Cradle; Robert Berke; Reginald Dwayne Betts; Scott

Murphy; Richard J. Colangelo, Jr.; and Moy N. Ogilvie

(collectively the “defendants”). See Doc. #1 at 3-4. Plaintiff

alleges that defendants “refused to interview” him for three

different jobs “because of his age in violation of the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution.” Doc. #1 at 14-15, ¶96. Plaintiff asserts

three causes of action against all defendants for unlawful age

discrimination in violation of the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitution. See

generally Doc. #1 at 15-23.

Defendants have filed a motion to dismiss the Complaint

[Doc. #17]. Plaintiff has filed a memorandum in opposition to

the motion to dismiss [Doc. #20], and defendants have filed a

reply [Doc. #23]. For the reasons stated below, defendants’

Motion to Dismiss [Doc. #17] is GRANTED, without prejudice to

the filing of an Amended Complaint.

I. FACTUAL BACKGROUND

For purposes of deciding the motion to dismiss, the Court

presumes the following factual allegations from the Complaint

[Doc. #1] to be true.

A. Plaintiff’s Background

Plaintiff was born on August 6, 1957, making him 62 to 63

years old at the time of the interview selection processes. See

Doc. #1 at 2, ¶7. “[P]laintiff holds a Bachelor of Science

Degree, with a major in Criminal Justice/Political Science, and

a Master of Arts Degree in Legal Studies” from the University of

New Haven. See id. at 5, ¶29. Plaintiff also holds a Juris

Doctor (“J.D.”) degree from the University of Bridgeport School

of Law. See id. at 5, ¶30. Plaintiff is licensed to practice law

in the State of Connecticut. Id. at 5, ¶31.

Prior to becoming an attorney, plaintiff worked as a police

officer from 1978 through 1989. See id. at 5, ¶¶32-33. After

receiving his J.D., plaintiff briefly worked for the United

States Immigration and Naturalization Service, before beginning

his employment with the Connecticut State Division of Criminal

Justice as a Senior Assistant State’s Attorney in 1990. See id.

at 5, ¶¶34-36. Plaintiff “currently holds” that same position.

Doc. #1 at 5, ¶57.

Plaintiff has also “had a distinguished military career,

honorably serving in the United States Army Reserve, from 1991

through 2017, when he retired holding the rank of Lieutenant

Colonel.” Id. at 5-6. While in the Reserve, plaintiff attended

the Army Command and General Staff College and the Army

Inspector General’s School. See id. at 6, ¶¶39-40. At various

times during his service, plaintiff was assigned to the Judge

Advocate General Corps and the United States Army Reserve

Inspector General’s Corps. See id. at 6, ¶¶41-42.

B. The Chief State’s Attorney Position

“On or about January 31, 2020,” defendants appointed

Richard J. Colangelo, Jr. (“Colangelo”) as Chief State’s

Attorney for the State of Connecticut. Id. at 7, ¶44.1 “When the

defendants ... posted a notice that it was accepting

applications for the position of Chief State’s Attorney from

qualified candidates, the plaintiff submitted his application

along with five other candidates.” Id. at 7, ¶45 (sic). After

1 Colangelo, who is also a former member of the Commission and a

named defendant, did not participate in this selection process.

See Doc. #1 at 7, ¶43.

one of the applicants withdrew his application, defendants

interviewed four of the five remaining applicants for this

position. See Doc. #1 at 7, ¶¶46-47. Plaintiff was the only

applicant for this position who was not offered an interview,

even though he possessed the necessary qualifications to serve

as the Chief State’s Attorney. See id. at 7, ¶¶48-49. Plaintiff

alleges that his “experience, skills, and abilities exceeded

those of the candidates” that were interviewed, and that those

candidates “were substantially younger than the plaintiff.” Id.

at 8, ¶¶51-52. Defendants selected Colangelo, who is

substantially younger and less qualified than plaintiff, for the

Chief State’s Attorney position. Id. at 8, ¶54, ¶57.

C. State’s Attorney for the Judicial District of

Fairfield, Connecticut

“On or about May 1, 2020,” defendants appointed Joseph T.

Corradino (“Corradino”) as State’s Attorney for the Judicial

District of Fairfield, Connecticut. Id. at 9, ¶59. “When the

defendants ... posted a notice that it was accepting

applications for the position from qualified candidates, the

plaintiff submitted his application along with seven other

candidates.” Id. at 9, ¶60 (sic). Defendants interviewed five

out of eight applicants for this position. See id. at 9, ¶¶61-

62. “Except for Robert Satti, the candidates” interviewed by

defendants “were substantially younger than the plaintiff.” Id.

at 9, ¶63.

Plaintiff was not offered an interview by defendants, even

though he was qualified to serve in this position. See Doc. #1

at 9, ¶¶64-65. Plaintiff alleges that his “experience, skills,

and abilities exceeded those of the candidates” interviewed. Id.

at 10, ¶66. Defendants selected Corradino, who is substantially

younger and less qualified than plaintiff, for the position of

State’s Attorney for Fairfield County. Id. at 10, ¶68, ¶71.

D. Deputy Chief State’s Attorney/Inspector General

“On or about September 2020,” defendants sought

applications for the position of Deputy Chief State’s

Attorney/Inspector General (hereinafter the “Deputy Chief”). Id.

at 11, ¶73. “When the defendants ... posted a notice that it was

accepting applications for the position of Deputy Chief ... from

qualified candidates, the plaintiff submitted his application

along with three other candidates.” Id. at 11, ¶74 (sic).

Defendants interviewed two out of four applicants for this

position, including Robert Satti. See id. at 11, ¶¶75-76.

“Except for Robert Satti, the other candidate” interviewed for

this position “was substantially younger than the plaintiff.”

Id. at 11, ¶77.

Plaintiff was not offered an interview for this position

even though he was qualified to serve as Deputy Chief. See id.

at 12, ¶¶78-80. Plaintiff alleges that his “experience and

qualifications exceeded those of the candidates the defendants”

interviewed, including one applicant who was “substantially

younger” than plaintiff. Doc. #1 at 12, ¶82; see also id. at 12,

¶84, ¶87.

Defendants later held a second round of interviews for the

Deputy Chief position, but again did not interview plaintiff.

See id. at 13, ¶89. The four applicants interviewed in the

second round of interviews were not more qualified than

plaintiff and were substantially younger than plaintiff. See id.

at 13-14, ¶¶90-91.

Plaintiff “was eminently qualified for the three positions,

... but the defendants, without a legitimate, rational, non-

discriminatory reason, refused to consider the plaintiff for any

of the three positions.” Id. at 14, ¶93. “By refusing to

interview” him for these positions, “defendants barred the

plaintiff from being appointed to any of the positions.” Id. at

14, ¶95. Defendants “refused to interview the plaintiff for the

three positions ... because of his age in violation of the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution.” Id. at 14-15, ¶96.

II. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation and quotation marks omitted);

accord Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854

(2d Cir. 2021). In reviewing such a motion, the Court “must

accept as true all nonconclusory factual allegations in the

complaint and draw all reasonable inferences in the Plaintiffs’

favor.” Kaplan, 999 F.3d at 854 (citations omitted). “In

considering a motion to dismiss for failure to state a claim

pursuant to Rule 12(b)(6), a district court may consider the

facts alleged in the complaint, documents attached to the

complaint as exhibits, and documents incorporated by reference

in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,

111 (2d Cir. 2010).

“[W]hile this plausibility pleading standard is forgiving,

it is not toothless. It does not require [the Court] to credit

legal conclusions couched as factual allegations or naked

assertions devoid of further factual enhancement.” Mandala v.

NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (citation and

quotation marks omitted). “A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause

of action will not do.” Iqbal, 556 U.S. at 678 (citations and

quotation marks omitted).

III. DISCUSSION

Defendants move to dismiss the Complaint on four grounds:

(1) plaintiff fails to state a section 1983 Equal Protection

claim; (2) plaintiff fails to allege personal involvement of

each named defendant; (3) defendants are entitled to qualified

immunity because they acted in an objectively reasonable manner;

and (4) defendants are entitled to qualified immunity because it

is not clearly established that plaintiff had a right to an

interview under the circumstances presented. See generally Doc.

#17 at 8-18. Plaintiff’s memorandum in opposition to the motion

to dismiss is rambling and the argument is difficult to follow.

However, plaintiff appears to contend that he has pled a prima

facie case of discrimination and that defendants are not

entitled to qualified immunity. See generally Doc. #20. In

reply, defendants note that plaintiff fails to address the issue

of personal involvement, and reassert that defendants are

entitled to qualified immunity. See generally Doc. #23. The

Court first considers whether plaintiff has adequately alleged

the personal involvement of each defendant in the alleged

constitutional violations.

A. Personal Involvement

Defendants assert that plaintiff’s section “1983 claims

against the individual defendants in their individual capacities

must be dismissed because he has not set forth sufficient

allegations to establish the individual defendants’ personal

involvement in the alleged violations.” Doc. #17-1 at 11.

Plaintiff does not respond to this argument.

“It is well settled in this Circuit that personal

involvement of defendants in alleged constitutional deprivations

is a prerequisite to an award of damages under §1983.” Spavone

v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir.

2013) (citation and quotation marks omitted). “As a corollary of

the personal involvement requirement, complaints that rely on

group pleading and fail to differentiate as to which defendant

was involved in the alleged unlawful conduct are insufficient to

state a claim.” Gonzalez v. Yepes, No. 3:19CV00267(CSH), 2019 WL

2603533, at *7 (D. Conn. June 25, 2019) (citation and quotation

marks omitted).

Plaintiff relies on inappropriate group pleading. Although

plaintiff identifies the defendants individually at the outset

of the Complaint, see Doc. #1 at 3-4, he otherwise refers

exclusively to “defendants” throughout the Complaint.2 “Plaintiff

provides absolutely no detail about these individuals apart from

the fact that they sit on the [Commission]; otherwise, he

complains that the [Commission] writ large violated his rights.

2 The only exceptions are paragraphs 45 through 63, which

“refer[] to the named defendants except for Colangelo, who could

not participate in the selection of Chief State’s Attorney.”

Doc. #1 at 7, ¶43.

Failing to explain what each [Commission] Member did to violate

Plaintiff’s rights is fatal to any claim under 42 U.S.C.

§1983 because such allegations rely on impermissible group

pleading.” Williams v. Novoa, No. 19CV11545(PMH), 2022 WL

161479, at *10 (S.D.N.Y. Jan. 18, 2022).

In section 1983 actions, “a plaintiff must plead that each

Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 556

U.S. at 676. The allegations of the Complaint fail to adequately

allege the personal involvement of each individual defendant.

Merely serving as a member on a commission that made an

allegedly discriminatory hiring decision does not render every

individual member personally responsible or personally liable

for that decision. Indeed, if plaintiff were to prevail against

a given defendant, that defendant would be found to have

personally and individually violated plaintiff’s Equal

Protection rights, and would be personally liable for monetary

damages. Even if the effect of defendants’ actions is felt

collectively by plaintiff, defendants’ liability for damages can

only be personal.

There are no allegations of any personal, individual

actions taken by any individual defendant. Accordingly,

defendants’ motion to dismiss is GRANTED. See, e.g., Williams,

2022 WL 161479, at *10 (dismissing section 1983 action against

individual Parole Board Members where plaintiff “fail[ed] to

explain what each Board Member did to violate Plaintiff’s

rights”); Johnson v. City of New York, No. 1:15CV08195(GHW),

2017 WL 2312924, at *10 (S.D.N.Y. May 26, 2017)

(dismissing section 1983 claim where plaintiff “fails to satisfy

the personal-involvement requirement because she relies entirely

on impermissible group pleading and fails to specify which

defendant or defendants were involved” (footnote omitted)).

The Complaint is DISMISSED, without prejudice, for failure

to adequately allege the personal involvement of defendants. If

plaintiff seeks to re-assert these claims in an Amended

Complaint, he must allege specific facts from which each named

defendant’s personal involvement in a constitutional violation

can reasonably be inferred. The Court notes that discovery has

now been underway for some time, so plaintiff should have

additional information regarding the actions of each defendant.

B. Equal Protection Claims

Plaintiff has failed to adequately allege the personal

involvement of defendants. However, plaintiff may elect to file

an Amended Complaint; the Court therefore addresses defendants’

remaining arguments in the interest of efficiency. The Court

next considers whether the substantive allegations of the

Complaint state a claim upon which relief may be granted.

Plaintiff asserts three claims for violation of the Equal

Protection Clause of the Fourteenth Amendment on the basis of

“unlawful age discrimination[.]” Doc. #1 at 15 (capitalizations

altered); see also id. at 18, 21. Defendants assert that

“plaintiff’s Equal Protection claim must be based on selective

enforcement alone[]” because “[a]ge is not a protected class

under the Fourteenth Amendment[,]” and “[a] public employee

cannot bring a class of one claim.” Doc. #17-1 at 8. Plaintiff

responds, in relevant part, that “defendants mischaracterize the

plaintiff’s cause of action ... the plaintiff has neither

alleged a ‘class of one’ claim nor that he was the victim of

‘selective enforcement.’ He specifically alleges that his

constitutional right to equal protection of the laws was

violated by the defendants’ acts of irrational age

discrimination.” Doc. #20 at 18. Plaintiff also contends that

courts in this Circuit “have consistently recognized causes of

action based on claims of age discrimination brought pursuant

to” section 1983. Id. at 20.3 Defendants do not address this

3 Plaintiff argues that the ADEA does not preempt his section

1983 claims. See Doc. #20 at 22-24. “It is an open question in

our circuit whether the ADEA preempts age discrimination claims

under Section 1983.” Piccone v. Town of Webster, 511 F. App’x

63, 64 n.1 (2d Cir. 2013). Defendants do not raise this as an

independent basis for dismissal, but only in connection with

their qualified immunity defense. Because the Court finds that

the issue of qualified immunity is better resolved at summary

judgment, the Court does not further address this “open

question[.]” Id.

aspect of plaintiff’s argument in their reply brief. See

generally Doc. #23.

Certain courts in this Circuit have indicated that “[a]ge

is not a protected class under the Fourteenth Amendment’s Equal

Protection Clause.” Leon v. Rockland Psychiatric Ctr., 232 F.

Supp. 3d 420, 431 (S.D.N.Y. 2017) (citation and quotation marks

omitted); see also Chizman v. Scarnati, 218 F. Supp. 3d 175, 181

(E.D.N.Y. 2016). These same courts have concluded: “Where the

plaintiff does not allege he is a member of a protected class,

his Equal Protection claim may only be based on two theories:

selective enforcement or class of one.” Chizman, 218 F. Supp. 3d

at 181 (citation and quotation marks omitted); see also Leon,

232 F. Supp. 3d at 431 (same). In the view of the undersigned,

this line of decisions does not accurately reflect the current

state of the law.

In concluding that age is not a “protected class,” this

line of cases generally relies on Shein v. New York City

Department of Education, No. 15CV04236(DLC), 2016 WL 676458

(S.D.N.Y. Feb. 18, 2016). Shein, in turn, relies on the Supreme

Court decision of Kimel v. Florida Board of Regents, 528 U.S.

62, 83 (2000), for the following proposition: “Age is not a

protected class under the Fourteenth Amendment’s Equal

Protection Clause.” Shein, 2016 WL 676458, at *6. Kimel does not

support that statement.

Kimel states that “age is not a suspect classification

under the Equal Protection Clause.” Kimel, 528 U.S. at 83

(emphasis added).4 The paragraph immediately following that

statement acknowledges that “States may discriminate on the

basis of age without offending the Fourteenth Amendment if the

age classification in question is rationally related to a

legitimate state interest.” Id. (emphases added). In contrast,

where a state discriminates based on membership in a suspect

class, a higher standard of review applies; “we require a

tighter fit between the discriminatory means and the legitimate

ends they serve.” Id. at 83.

Thus, a plaintiff may bring an Equal Protection claim based

on age, but “because an age classification is presumptively

rational, the individual challenging its constitutionality bears

the burden of proving that the facts on which the classification

is apparently based could not reasonably be conceived to be true

by the governmental decisionmaker.” Id. (citation and quotation

marks omitted). Kimel does not stand for the blanket proposition

that discrimination based on age cannot violate the Equal

Protection Clause, but rather, that age is not a suspect class.

4 The court in Pejovic v. State Univ. of N.Y. at Albany also

noted Shein’s misplaced reliance on Kimel for the proposition

that age is not a “protected” class. See Pejovic, No.

1:17CV1092(TJM)(DTS), 2018 WL 3614169, at *5 n.5 (N.D.N.Y. July

26, 2018).

See Neary v. Gruenberg, 730 F. App’x 7, 9–10 (2d Cir. 2018)

(“Because age is not a suspect class, age-based discrimination

does not offend equal protection ‘if the age classification in

question is rationally related to a legitimate [government]

interest.’” (quoting Kimel, 528 U.S. at 83)), as amended (Apr.

5, 2018). This affects the level of scrutiny applied to state

action, not the viability of the claim itself.

The Supreme Court’s “equal protection jurisprudence has

typically been concerned with governmental classifications that

affect some groups of citizens differently than others.”

Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601 (2008); see

also Fierro v. City of New York, No. 1:20CV09966(GHW), 2022 WL

428264, at *7 (S.D.N.Y. Feb. 10, 2022) (“The Fourteenth

Amendment[] ... offers some level of protection against all

discrimination, stating that no state shall deny to any person

within its jurisdiction the equal protection of the laws.”

(citation and quotation marks omitted)). Thus, although age is

not a suspect or quasi-suspect class, an individual is “still

afforded limited protection” from discrimination on the basis of

age. Fierro, 2022 WL 428264, at *7; see also Purdy v. Town of

Greenburgh, 166 F. Supp. 2d 850, 868 (S.D.N.Y. 2001) (“Because

age is not a suspect class, the Equal Protection Clause only

requires a rational basis for discrimination on the basis of

age.”), on reconsideration in part, 178 F. Supp. 2d 439 (2002);

Goodmaster v. Town of Seymour, No. 3:14CV00060(AVC), 2015 WL

1401966, at *6 n.8 (D. Conn. Mar. 26, 2015) (“[I]t is well-

established that states may not discriminate on the basis

of age if the age classification is not rationally related to a

legitimate state interest.”). Thus, “the Equal Protection Clause

still applies to public employees, and ... ‘is implicated when

the government makes class-based decisions in the employment

context, treating distinct groups of individuals categorically

differently.’” Volpi v. Ctr. Moriches Union Free Sch. Dist., 9

F. Supp. 3d 255, 258 (E.D.N.Y. 2014) (quoting Engquist, 553 U.S.

at 605).

Courts in the Second Circuit have routinely recognized

claims for age discrimination asserted pursuant to section 1983.

See, e.g., Spain v. Ball, 928 F.2d 61, 63 (2d Cir. 1991)

(“Because Spain’s equal protection claim is based on a theory

of age discrimination, the proper standard of review is the

rational basis test.”); Pejovic, 2018 WL 3614169, at *5-6;

Markovich v. City of New York, No. 09CV05553(ENV)(CLP), 2013 WL

11332465, at *10 (E.D.N.Y. Aug. 21, 2013), aff’d, 588 F. App’x

76 (2d Cir. 2015); Weinstein v. Garden City Union Free Sch.

Dist., No. 11CV02509(AKT), 2013 WL 5507153, at *20 (E.D.N.Y.

Sept. 30, 2013); Anand v. N.Y. State Dep’t of Tax’n & Fin., No.

10CV05142(SJF)(WDW), 2013 WL 3874425, at *12 (E.D.N.Y. July 25,

2013); Purdy, 166 F. Supp. 2d at 868; Natale v. Town of Darien,

Conn., No. 3:97CV00583(AHN), 1998 WL 91073, at *4 (D. Conn. Feb.

26, 1998). Thus, defendants’ argument that plaintiff cannot

proceed with an age discrimination claim pursuant to the Equal

Protection Clause is without merit. The Court next considers

whether the allegations of the Complaint state a claim for age

discrimination in violation of the Equal Protection Clause

pursuant to section 1983.5

“Age-based employment discrimination claims brought

pursuant to §1983 are analyzed under the three-step, burden-

shifting framework established by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05

(1973).” Burkhardt v. Lindsay, 811 F. Supp. 2d 632, 651

(E.D.N.Y. 2011); see also Sorlucco v. New York City Police

Dep’t, 888 F.2d 4, 6–7 (2d Cir. 1989) (“The Supreme Court has

outlined a three-step analysis of factual issues in Title VII

claims. By analogy, the same analysis applies to claims

under section 1983.” (citations omitted)). Absent direct

evidence of discrimination, “what must be plausibly supported by

facts alleged in the complaint is that the plaintiff is a member

5 “To state a claim under §1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). The Complaint pleads these basic

requirements of a section 1983 claim. However, as previously

discussed, the Complaint does not adequately allege the personal

involvement of each defendant.

of a protected class, was qualified, suffered an adverse

employment action, and has at least minimal support for the

proposition that the employer was motivated by discriminatory

intent.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d

Cir. 2015). At the motion to dismiss stage, the facts alleged

“need not give plausible support to the ultimate question of

whether the adverse employment action was attributable to

discrimination. They need only give plausible support to a

minimal inference of discriminatory motivation.” Id.6

For each of the three counts asserted, plaintiff has

adequately alleged that he is a member of a protected class,

having been 62 to 63 years old at the time of the events in

question. See Doc. #1 at 2, ¶7; see also Kunik v. New York City

Dep’t of Educ., 436 F. Supp. 3d 684, 693 (S.D.N.Y. 2020) (“The

record establishes that Plaintiff is a member of a protected

class, as the parties stipulate that she is a 69-year-old Jewish

female, satisfying the first prong of the analysis for both age

and religious discrimination.”), aff’d, 842 F. App’x 668 (2d

Cir. 2021), as amended (Jan. 26, 2021), cert. denied, 142 S. Ct.

786, (2022), reh’g denied, 142 S. Ct. 1403, (2022).

6 “Although Plaintiff need not allege facts sufficient to make

out a prima facie case for any of h[is] discrimination claims in

h[is] Complaint, the elements thereof provide an outline of what

is necessary to render h[is] claims for relief plausible.”

Sommersett v. City of New York, No. 09CV05916(LTS)(KNF), 2011 WL

2565301, at *5 (S.D.N.Y. June 28, 2011).

Plaintiff has also alleged adequate facts to support an

inference that he was qualified for each of the three positions,

including, but not limited to, his lengthy experience as a

prosecutor and police officer. See Doc. #1 at 5-6, ¶¶29-42; id.

at 8, ¶56; id. at 10, ¶70; id. at 12, ¶¶79-81.

Plaintiff has also adequately alleged that he suffered an

adverse employment action because defendants did not extend him

an interview for any of the three positions, thereby eliminating

him from hiring consideration. See id. at 7, ¶¶48-49; id. at 8,

¶53, ¶55; id. at 9, ¶64; id. at 10, ¶69; id. at 11, ¶72; id. at

12, ¶78; id. at 13, ¶85, ¶88; see also Szewczyk v. Saakian, 774

F. App’x 37, 38 (2d Cir. 2019) (The plaintiff stated an

analogous ADEA age discrimination claim where, inter alia, she

“was not selected to advance in the interview process[.]”);

Ndremizara v. Swiss Re Am. Holding Corp., 93 F. Supp. 3d 301,

310 (S.D.N.Y. 2015) (The term adverse employment action is

“broadly” defined “to include discharge, refusal to hire,

refusal to promote, demotion, reduction in pay, and

reprimand.”).

Plaintiff has not, however, pled adequate facts to “give

plausible support to a minimal inference of discriminatory

motivation.” Littlejohn, 795 F.3d at 311. As to each count

asserted, plaintiff has adequately pled that a younger and less

qualified applicant proceeded further in the application process

than plaintiff. See, e.g., White v. Huntington, No.

14CV07370(ST), 2021 WL 826221, at *7 (E.D.N.Y. Mar. 4, 2021)

(“In the failure to hire context, an employer’s choice of a less

qualified employee not from plaintiff’s protected class raises

an inference of discrimination sufficient to establish a prima

facie case of discrimination.” (citation and quotation marks

omitted)). However, plaintiff fails to plead that any defendant

had knowledge of the applicants’ ages. In a comparable ADEA

case, the Second Circuit found that “where a plaintiff relies on

a substantial age discrepancy between herself and her

replacement, she must adduce some evidence indicating

defendants’ knowledge as to that discrepancy to support the

inference of discriminatory intent required by the fourth prima

facie factor. ... [D]iscriminatory intent cannot be inferred,

even at the prima facie stage, from circumstances unknown to the

defendant.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 82–83 (2d

Cir. 2005). Likewise in an Equal Protection case, discriminatory

intent cannot be inferred from circumstances unknown to a

defendant. Compare, e.g., Largo v. Vacco, 977 F. Supp. 268, 274

(S.D.N.Y. 1997) (“In the absence of ... knowledge [that

plaintiff belonged to a certain group], plaintiffs cannot

establish the discriminatory intent required to make out

an Equal Protection claim.”), with Sughrim v. New York, 503 F.

Supp. 3d 68, 91 (S.D.N.Y. 2020) (“Plaintiffs have also alleged

that Defendants acted with discriminatory intent by singling

them out with the knowledge that shaving would violate their

religious beliefs, and by making derogatory remarks, such as the

questioning of Gleixner’s Muslim faith.” (emphasis added)).

Accordingly, plaintiff has failed to plead adequate facts to

support a minimal inference of discrimination.

Last, in the “Prayer for Relief,” plaintiff asks the Court

to “[d]eclare the conduct engaged by the defendant to be in

violation of the plaintiff’s rights under the Equal Protection

Clause of the Fourteenth Amended to the United States

Constitution[,]” and to “[e]njoin the defendant from engaging in

such conduct.” Doc. #1 at 23 (sic). Plaintiff sues defendants in

their individual capacities only. See id. at 1, 3-4. “Injunctive

relief is not available from defendants in their individual

capacities[.]” Patterson v. Lichtenstein, No. 3:18CV02130(MPS),

2020 WL 837359, at *2 (D. Conn. Feb. 20, 2020). The declaratory

relief sought is unnecessary. See Kuhns v. Ledger, 202 F. Supp.

3d 433, 443 (S.D.N.Y. 2016) (“Dismissal of a declaratory

judgment action is warranted where the declaratory relief

plaintiff seeks is duplicative of his other causes of action.”

(citation and alterations omitted)). Additionally,

“[d]eclaratory relief operates prospectively to enable parties

to adjudicate claims before either side suffers great damages.”

Orr v. Waterbury Police Dep’t, No. 3:17CV00788(VAB), 2018 WL

780218, at *7 (D. Conn. Feb. 8, 2018). Plaintiff’s requests for

declaratory relief are based solely on his past treatment by

defendants. Accordingly, plaintiff’s requests for injunctive and

declaratory relief are DISMISSED, with prejudice, as against the

individual defendants in their individual capacities.

C. Qualified Immunity

Finally, defendants assert that they are entitled to

qualified immunity because they acted objectively reasonably,

see Doc. #17-1 at 12-14, and “because it is not clearly

established that the plaintiff has a right under the Equal

Protection Clause to be interviewed when individuals who are the

same age or older were interviewed by the defendants.” Id. at

14; see also Doc. #23 at 5-6.

The motion to dismiss was filed well before the parties

engaged in any meaningful discovery. The Court finds that the

more appropriate time for determining the issue of qualified

immunity is on a motion for summary judgment. See, e.g.,

Interboro Inst., Inc. v. Maurer, 956 F. Supp. 188, 201 (N.D.N.Y.

1997) (“[T]he standard for determining qualified immunity in

federal court, was designed to facilitate resolution of the

defense on a motion for summary judgment.” (citation and

quotation marks omitted)); see also Purdy, 166 F. Supp. 2d at

869 (“Here, there is no dispute that age discrimination is

contrary to clearly established federal law.”).

Accordingly, defendants’ motion to dismiss on the grounds

of qualified immunity is DENIED, without prejudice. Defendants

may reassert this defense at summary judgment, if appropriate.

IV. CONCLUSION

For the reasons stated, defendants’ Motion to Dismiss [Doc.

#17] is GRANTED, without prejudice to the filing of an Amended

Complaint.

Any Amended Complaint must be filed on or before September

9, 2022, or this case will be closed.

It is so ordered at Bridgeport, Connecticut, this 19th day

of August 2022.

/s/ _________

HON. SARAH A. L. MERRIAM

UNITED STATES DISTRICT JUDGE