Pro se plaintiff wins due process and Title VII appeal

Due process is enshrined in the Constitution, but the courts have made it difficult to sue over due process violations. In this case, the pro se plaintiff wins her appeal, reinstating her due process claim against the City of New York.

The case is Xu v. City of New York, a summary order decided on November 2. We don't know much about the due process claim, but the Second Circuit notes that if your due process rights are violated, the usual procedure is to bring an Article 78 following the property or liberty deprivation. That rule applies when a relatively low-level government employee shafts you through an "random or unauthorized act[]." In those cases, the Article 78 procedure is the due process. That rule does not apply, however, when the deprivation was perpetrated by "officials with final authority over significant matters, which contravene the requirements of a written municipal code, and can constitute established state procedure."

Since plaintiff "was improperly fired without a postdeprivation hearing because Municipal Defendants wrongly believed her to be a probationary employee who was not entitled to such a hearing," and plaintiff claims a high-level official orchestrated her termination, plaintiff has a due process claim. Plaintiff does not have to worry about the CPLR. She can avail herself of the beauties of the Federal Rules of Civil Procedure.

Plaintiff also has a discrimination claim under Title VII. She says a younger white male was treated more favorably on the basis of race. The disparate treatment included plaintiff receiving negative feedback while the white comparator got positive feedback. These and other allegations of disparate treatment allow plaintiff's case to proceed. Since this was a Rule 12 dismissal, mind you, the parties must pursue discovery. No doubt, the City will move for summary judgment once discovery is complete. Hey, why not? Government lawyers love moving for summary judgment.