Second Circuit Dismisses Selective Enforcement Claim Due to Plaintiffs’ Failure to Identify and Plead a Similarly Situated Comparator

This post was authored by Amy Lavine, Esq.

The plaintiffs were issued fines by the New York City Department of Buildings during the course of their drilling and excavation work at a construction sites. They challenged the fines under 42 U.S.C. §§ 1981 and 1983, claiming that city officials had singled them out and discriminated against them and other Asian individuals in the construction industry. The district court ruled in the city’s favor, however, and dismissed the plaintiffs’ claims of race-based and malice-based selective enforcement. In a prior decision, Hu v. City of New York, 927 F.3d 81 (2d Cir. 2019), the Second Circuit had vacated the dismissal of the plaintiffs’ equal protection and selective enforcement claims, finding that their amended complaint “just barely” alleged that were treated differently than their proffered similarly situated comparator. On remand, however, the district court again dismissed the plaintiffs’ claims on the basis that their proffered comparator was not similarly situated enough to support their discrimination claims. The plaintiffs appealed again to the Second Circuit Court of Appeals, and in its second decision in 2023, the court affirmed the dismissal of the plaintiffs’ equal protection claims.

In opposition to the defendants’ motion for summary judgment and in their appeal to the Second Circuit, the plaintiffs emphasized two incidents at one of their jobsites as supporting their selective enforcement claim; on the first date, the building inspector had spoken to a white foreman about several violations but he ultimately declined to issue any fines, while on the second date, when the white foreman was not present, the building inspector did issue fines. As the defendants argued, however, these incidents had not been included in the plaintiffs’ amended complaint, which instead identified a subsequent incident after the date when the violations were issued as the relevant comparator.

The Second Circuit agreed with the defendants and found that the plaintiffs were bound by the allegations in their amended complaint and were barred from raising a new theory of selective enforcement at the summary judgment stage or on appeal. As the court explained: “When a party fails to explain or reconcile inconsistent and contradictory statements between a  party’s complaint and opposition to summary judgment, such statements can ‘transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.'”

As for the proffered comparator in the plaintiffs’ amended complaint, the court agreed with the district court’s finding that the plaintiffs had failed to establish that the circumstances were reasonably similar to the circumstances when the building inspector issued violations to them. The plaintiffs offered no details regarding the relevant jobsite conditions showing that they were materially the same on both occasions, and even if they had shown the circumstances were similar, the court noted that when the building inspector revisited the site after the date when he issued the violations, he could not have issued any additional violations because that visit occurred during the prescribed time period that was allotted for the violations to be cured. The court therefore affirmed the dismissal of the plaintiffs’ selective enforcement claims.

With no federal claims remaining, the court also affirmed the district court’s decision not to exercise supplemental jurisdiction, finding that the district court properly considered that the lengthy pendency of the case and the district court’s familiarity with the issues did not warrant retaining jurisdiction over a lone state claim.

Hu v. City of New York, 2023 U.S. App. LEXIS 12318 (2d Cir. May 19, 2023)