C. v. New York State and Local Retir

Filing 21

FORM C, on behalf of Appellant Mary Jo C., FILED. Service date 06/22/2011 by CM/ECF.[321927] [11-2215]

ADDENDUM A

BRIEF DESCRIPTION OF NATURE OF ACTION
This lawsuit is an action under the Americans with
Disabilities Act in which the plaintiff-appellant requested a
reasonable accommodation in the form of a waiver by the New York
State and Local Retirement System ("NYSLRS")of the time
requirements to file an application for disability leave
benefits.

The appellant sought injunctive relief directing

NYSLRS to permit the appellant to file a late application.
The appellant also set forth a claim for damages against
her employer at the time she was eligible to apply for
disability retirement benefits, the Central Islip Public Library
("CIPL"). The claim asserted that CIPL failed to provide a
reasonable accommodation in the form of applying for disability
benefits on behalf of the appellant as CIPL was authorized to
do.
RESULT BELOW
The district court granted the motion to dismiss made by
both defendants.

The court found that the Eleventh Amendment

barred the claim against NYSLRS.

The court concluded that

Eleventh Amendment immunity analysis under U n i t e d S t a t e s v.
G e o r g i a , 546 U.S. 151, 158-59 (2006) first requires a court to

determine whether or not a plaintiff has set forth a violation
of Title I1 of the ADA.
did not.

The court concluded that the appellant

The court first concluded that the appellant did not

plead that she suffered from a disability under the ADA.

The

court further held that the appellant is not a qualified
individual with a disability because she did not timely file her
application for disability retirement benefits and her proposed
accommodation of a waiver of the time requirements for filing
was not a reasonable accommodation. The court found that the
proposed accommodation would require NYSLRS to violate a state
law and any accommodation that requires a state defendant to
violate state law is not reasonable.
The court also dismissed the claims against CIPL.

It held

that only Title I, and not Title 11, governed employment claims
against local governments. The appellant had filed a Title I1
claim only because she did not timely comply with the
requirements for exhausting her administrative remedies under
Title I.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

....................................

X

MARY JO C.
Plaintiff,
NOTICE OF APPEAI;,
-against-

NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM, CENTRAL ISLIP
PUBLIC LIBRARY,
Defendants.

Notice is hereby given that plaintiff Mary Jo C.
appeals to the United States Court of Appeals for the Second
Circuit from a final judgment entered in this action May 6,
2011.
Dated: Central Islip, New York
May 26, 2011

/
WILLIAM M. BROOKS
WB1544
Mental isa ability Law Clinic
Attorney for Plaintiff
Touro College
Jacob D. Fuchsberg Law Center
225 Eastview Drive
Central Islip, NY 11722
[phone]

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Page 1 of 6

APPEAL

U S District Court
..
Eastern District of New York (Central Islip)
CIVIL DOCKET FOR CASE #: 2:W-CV-05635-SJF
-ARL
C. v. New York State and Local Retirement System et al
Assigned to: Judge Sandra J. Feuerstein
Referred to: Magistrate Judge Arlene R. Lindsay
Cause: 42: 1201 Civil Rights (Disability)

PlaintifP
Mary Jo C.

Defendant
New York State and Local
Retirement System

Defendant
Central Islip Public Library

Date Filed: 12/23/2009
Date Terminated: 05/06/2011
Jury Demand: Plaintiff
Nature of Suit: 446 Civil Rights:
Americans with Disabilities - Other
Jurisdiction: Federal Question

represented by William M. Brooks
Touro College Jacob D. Fuchsberg Law
Center
225 Eastview Drive
Central Islip, NY 11722
631-761-7000
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

represented by Patricia M. Hingerton
NYS Office of the Attorney General
300 Motor Parkway
Suite 205
Hauppauge, NY 11788
631-231-2424
Fax: [phone]
Email:
[e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
represented by Laura L. Shockley
Rivkin Radler LLP
EAB Plaza
9th Floor
Uniondale, NY 11556
5 16-357-3209
Fax: [phone]
Email: [e-mail]

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ATTORNEY TO BE NOTICED

William M. Savino
Rivkin Radler LLP
926 EAB Plaza
Uniondale, NY 11556
(5 16)357-3000
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/23/2009

- COMPLAINT (Receipt #2046) against Central Islip Public Library, New York
1

State and Local Retirement System Disclosure Statement on Civil Cover Sheet
completed -No,, filed by Mary Jo C.. (Attachments: # 1 Civil Cover Sheet)
(Ryan, Mary) (Entered: 12/28/2009)

12/23/2009
12/30/2009

Summons Issued as to Central Islip Public Library, New York State and Local
Retirement System. (Ryan, Mary) (Entered: 12/28/2009)

2

DEMAND for Trial by Jury by Mary Jo C. (Brooks, William) (Entered:
12/30/2009)

0 1/04/2010

Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 0 1/04/2010)

02/02/20 10

- SUMMONS Returned Executed by Mary Jo C.. New York State and Local
3
Retirement System served on 1/20/2010, answer due 2/10/2010. (Brooks,
William) (Entered: 02/02/20 10)

02/02/2010

- SUMMONS Returned Executed by Mary Jo C.. Central Islip Public Library
4
served on 1/21/2010, answer due 2/11/2010. (Brooks, William) (Entered:
02/02/2010)

02/18/2010

- NOTICE of Appearance by William M. Savino on behalf of Central Islip
5

Public Library (aty to be noticed) (Savino, William) (Entered: 02/18/2010)

O2/1812010

- NOTICE of Appearance by Laura L. Shockley on behalf of Central Islip Public
6
Library (aty to be noticed) (Shockley, Laura) (Entered: 02/18/2010)

02118/2010

7

STIPULATION AND ORDER re 2 : The time for defendant Central Islip
.
Public Library to answer or otherwise move against the complaint is extended
to 3/16/2010. Ordered by Magistrate Judge Arlene R. Lindsay on 2/19/2010.
(decf) (Warshaw, Aaron) (Entered: 02/19/2010)

02119/20 10

03/02/20 10

STIPULATION re 1 Complaint mending Time to Answer or otherwise move
until March 16, 2010 by Central Islip Public Library (Shockley, Laura)
(Entered: OW 18/2010)

8

NOTICE of Appearance by Patricia M. Hingerton on behalf of New York State
and Local Retirement System (aty to be noticed) (Hingerton, Patricia)
(Entered: 03/02/2010)

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9

03/02/20 10

Page 3 of 6

STIPULATION to extend time to respond to complaint by New York State and
Local Retirement System (Hingerton, Patricia) (Entered: 03/02/2010)
ORDER TO ANSWER re 9 : The time for defendant New York State and
Local Retirement System to answer or otherwise move against the complaint is
extended to 3/18/2010. Ordered by Magistrate Judge Arlene R. Lindsay on
3/3/2010. decf (Miller, Dina) (Entered: 03/03/2010)

03/03/20 10

10 Consent MOTION for Extension of Time to File Answer re 1 Complaint

03/16/2010

(Stipulation Extending time to answer or otherwise move to March 31, 201 0 )
by Central Islip Public Library. (Shockley, Laura) (Entered: 03/16/2010)
I

ORDER granting 10 : On consent, the time for defendants to answer or
otherwise move against the complaint is extended to 313 112010. Ordered by
Magistrate Judge Arlene R. Lindsay on 3/17/2010. (decf) (Warshaw, Aaron)
(Entered: 03/17/2010)

03/17/2010

MOTION to Dismiss (requestforpre-motion conference orfor briefing
schedule) by New York State and Local Retirement System. (Hingerton,
Patricia) (Entered: 03/30/2010)

03/30/2010

1
1

03/30/2010

12 MOTION for Discovery Stay by New York State and Local Retirement
System. (Hingerton, Patricia) (Entered: 03/30/2010)

04/01/2010

2

Consent MOTION for Extension of Time to File Answer re Complaint
(Stipulation) by Central Islip Public Library. (Shockley, Laura) (Entered:
0410 1/2010)

04/01/2010

&
J

Letter in response by plaintifto defendant New York State and Local
Retirement System's pre-motion letter by Mary Jo C. (Brooks, William)
(Entered: 0410112010)

04/02/20 10

ORDER granting 13 : By stipulation, the time for defendant Central Islip
Public Library to answer or otherwise move against the complaint is extended
to 4/30/2010. Ordered by Magistrate Judge Arlene R. Lindsay on 4/2/2010.
( k f ) (Warshaw, Aaron) (Entered: 04/02/20 10)

04/02/20 10

ORDER denying 12 motion to stay discovery pending resolution of the motion
to dismiss. The undersigned will issue a proposed scheduling order after all
defendants have answered or moved against the complaint. Ordered by
Magistrate Judge Arlene R. Lindsay on 4/2/20 10. (c/ecf) (Warshaw, Aaron)
(Entered: 04/02/2010)

04/09/2010

1
5

ORDER REASSIGNING CASE. Case reassigned to Judge Sandra J.
Feuerstein for all further proceedings. Senior Judge Leonard D. Wexler no
longer assigned to case. Ordered by Chief Judge Raymond J. Dearie on
4/9/20 10. (Bowens, Priscilla) (Entered: 04113/2010)

04/21/2010

1
6

Letter indicating service of motion to dismiss on plaintifland co-defendant by
New York State and Local Retirement System (Hingerton, Patricia) (Entered:
0412 1/2010)

04/30/20 10

17 STIPULATION Extending to May 28, 2010, the time for defendant, Central
Islip Public Library, to serve a motion to dismiss the complaint and that

I

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Plaintifs time to oppose defendant, New York State & Local Retirement
System's pending Motion to Dismiss and defendant, Central Islip Public
Library's Motion to Dismiss is extended to and including July 6, 2010.. by
Central Islip Public Library (Attachments: # L Letter to Hon. Sandra J.
Feuerstein from Laura L. Shockley respectfully requesting that the attached
Stipulation be 'so ordered') (Shockley, Laura) (Entered: 04/30/2010)

05/05/20 10

STIPULATION AND ORDER extending deadlines for motion. Ordered by
Judge Sandra J, Feuerstein on 5/5/2010. (Brienza, Lauren) (Entered:
05/06/2010)

1
8

ORDER terminating as moot 1 Motion to Dismiss. Ordered by Judge Sandra
1
J. Feuerstein on 5/7/2010. (Brienza, Lauren) (Entered: 05/10/2010)

05/07/20 10
v

fi

05/28/2010
05/28/2010

MOTION to Dismiss Complaint by Central Islip Public Library. (Attachments:
# 1 Certificate of Service) (Shockley, Laura) (Entered: 05/28/2010)

MEMORANDUM in Support re 19 MOTION to Dismiss Complaint filed by
Central Islip Public Library. (Attachments: # Certificate of Service)
(Shockley, Laura) (Entered: 05/28/2010)

20

ORDER denying 1 Motion to Dismiss WITHOUT PREJUDICE for failure to
9
comply with Rule 4 of Judge Feuerstein's individual rules. Ordered by Judge
Sandra J. Feuerstein on 6/1/2010. decf (Morabito, Bryan) (Entered:
06/01/2010)

0610 1/2010

21 Letter MOTION for Extension of Time to File Memorandum of l;aw in

07/07/2010

Opposition to Defendants' Motions to Dismiss and Modify the Briefing
Schedule by Mary Jo C.. (Brooks, William) (Entered: 07/07/2010)

07/08/2010

22

Letter detailing additional consent to previously filed letter motion seeking
extension of time and modification of briefing schedule by Mary Jo C.
(Attachments: # 1
Attachment) (Brooks, William) (Entered: 07/08/2010)

07/12/2010

23

ORDER granting 21 Motion for Extension of Time to File. Ordered by Judge
Sandra J. Feuerstein on 7/12/2010. (Brienza, Lauren) (Entered: 07/14/2010)

08/12/2010

24

MOTION to Dismiss by New York State and Local Retirement System.
Memorandum in Support, # 2 Memorandum in Opposition,
(Attachments: # 1
# 3 Memorandum in Support) (Hingerton, Patricia) (Entered: 08/12/2010)

08/13/2010

2 Letter MOTION for Extension of Time to File ResponseIReply in Connection
With Pending Motion to Dismiss to August 23, 2010 by Central Islip Public
Library. (Shockley, Laura) (Entered: 08/13/2010)

ORDER granting 25 Motion for Extension of Time to File Response/Reply.
The application is: granted. ( Ordered by Judge Sandra J. Feuerstein on
8116/20 10.) (Fagan, Linda) (Entered: 08118/2010)

08/18/2010

26

08/23/2010

2 MOTION to Dismiss Complaint by Central Islip Public Library. (Shockley,
Laura) (Entered: 08/23/2010)

08/23/2010
I

MEMORANDUM in Support re 27 MOTION to Dismiss Complaint filed by
Central Islip Public Library. (Shockley, Laura) (Entered: 08/23/2010)

28
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MEMORANDUM in Opposition re 27 MOTION to Dismiss Complaint (Part
1 o 4) filed by Central Islip Public Library. (Attachments: # 1 Memorandum
f
of Law in Opposition to Motion to Dismiss (Part 2 of 4), # 2 Memorandum of
Law in Opposition to Motion to Dismiss (Part 3 of 4), # 3 Memorandum of
Law in Opposition to Motion to Dismiss (Part 4 of 4)) (Shockley, Laura)
(Entered: 08/23/2010)

08/23/2010

29

08/23/2010

30 MEMORANDUM in Support re 27 MOTION to Dismiss Complaint / Reply

Memorandum o Law in Further Support filed by Central Islip Public Library.
f
(Shockley, Laura) (Entered: 08/23/20 10)

08/23/2010

2

CERTIFICATE OF SERVICE by Central Islip Public Library re 28
Memorandum in Support, 30 Memorandum in Support, 27 MOTION to
Dismiss Complaint, 29 Memorandum in Opposition, (Shockley, Laura)
(Entered: 08/23/2010)

09/02/2010

32

Letter from Laura L. Shockiey to Judge Feuerstein dated 8/24/2010 enclosing
courtesy copies of dockets which were all filed electronically. (Glueckert, Lisa)
(Entered: 09/02/20 10)

05/05/2011

33

OPINION AND ORDER granting to the extent set forth herein 24 Motion to
Dismiss; For the reasons stated herein, defendants' respective motions to
dismiss the complaint purs. to Rule 12(b) of the Fed. R. Civ. P. are granted to
the extent set forth herein and the complaint is dismissed in its entirety. The
Clerk of the Curt shall enter judgment in favor of defendants and close this
case. ( Ordered by Judge Sandra J. Feuerstein on 51512011.) (Fagan, Linda)
(Entered: 05/06/2011)

05/06/2011

34 CLERK'S JUDGMENT;That pltff take nothing of defts; that defts' respective

motions to dismiss the complaint purs. to Rule 12(b) of the Fed. R. Civ. P. are
granted to the extent set forth in the May 5,201 1 Opinion and Order; that the
complaint is dismissed in its entirety; and that this case is hereby closed.
( Signed by: Catherine Vukovich, Deputy Clerk, on 5/6/201 1) c/m cfecf
(Fagan, Linda) (Entered: 05/09/20 11)

0513 1/2011

2 NOTICE OF APPEAL as to 34 Clerk's Judgment, by Mary Jo C.. (Brooks,
William) (Entered: 0513112011)

0513 1/2011

Electronic Index to Record on Appeal sent to US Court of Appeals. For docket
entries without a hyperlink, contact the court and we'll arrange for the
docurnent(s) to be made available to you. 3 Summons Returned Executed, 14
Letter, 7 Stipulation, 20 Memorandum in Support, 1 Stipulation, 1 Motion
7
0
for Extension of Time to File Answer, 32 Letter, 22 Letter, 8 Notice of
Appearance, Stipulation and Order, 23 Order on Motion for Extension of
Time to File, 5 Notice of Appearance, 2 Jury Demand, 28 Memorandum in
Support, 21 Motion for Extension of Time to File, 30 Memorandum in
Support, 13 Motion for Extension of Time to File Answer, 33 Order on Motion
to Dismiss, 26 Order on Motion for Extension of Time to File ResponseIReply,
25 Motion for Extension of Time to File ResponseIReply, 2 Motion for
Discovery, 34 Clerk's Judgment, 5 Notice of Appearance, Letter, I
Complaint, 4 Summons Returned Executed, 35 Notice of Appeal, 24 Motion to
Dismiss, 9 Stipulation, 19 Motion to Dismiss, 31 Cert~ficate Service,
of

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Motion to Dismiss, 2 Memorandum in Opposition, 11 Motion to Dismiss, 15
Order Reassigning Case, (Russo, Eric) (Entered: 0513 11201 1)
USCA Appeal Fees received $455.00 receipt number 6660 re 35 Notice of
Appeal filed by Mary Jo C. (Russo, Eric) (Entered: 06/17/2011)

06/17/20 1 1

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PACER Service Center
Transaction Receipt

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1

06/22/2011 13:26:25

299-CV-05635-SJF
-

- 1 - 7 1 [ 0 . 3 2

1

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Case 2:Og-c~-05635-SJF
-ARL Document 33

UNITEiD STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MARY J C.,
O

Filed 0510511 1 Page 1 of 26

.
OPINION AND ORDER
09 CV 5635 (SJFWARL)

NEW YORK STATE AND LOCAL
REllREMENT SYSTEM and
CENTRAL, ISLIP PUBLIC LIBRARY,

.
a

FEUERSTEIN, J.
On December 23,2009,plaintiff Mary Jo C. ("plaintifl") commenced this action pursuant

to Titla I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12131, et s q , and New
I
e.

Yo* Executive Law 5 296 ("state law") agaimt Mendants New Yo* State a d Local
Retirement System ("the State defeodantrr) and the Central Islip Public Library ("the Library")

(collectively, "Mendants"), alleging: (1) that the State defendant denied her a reasonable
accornmdon for her mental disability in violation of Title II of the ADA by fRilinP to waive
the nquiremcnts for applying for dhbility retirement benefits under Section 605 of the New

Yo* State Retirement and Social W t y Law (TWRSSL"); and (2) that the Library denied h a
a reasonable accommodation for her mental M t y in violation of both Title I1 of the ADA
and state law by failing (a) to file an application for M t y retirement benefits on ha behalf as
permitted by Section 605(a)(2) of the NYRSSL and (b) to reclassify the termination of her

employment as a leave of absence. The Stata defeadant moves pursuant to Rules 12(bXl) and
(6) of the Federal Rules of Civil Procadure t dismiss the complaint against it for lack of subject
o
ma#cr jurisdiction

and failure to state a claim, respectively; and the Library moves putmint to

C

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 2 of 26

.:
a
=
Rule lZ(bX6) of the Fcdaal Rules of Roecdurr,to dismiss the complaint against it for fhiIure t
o
state a claim. For thO ratsons discus&

herein, &fadants' motions are p t t d in pmt and

denied in part

L

BACKGROUND
A.

Factual ~llegatiorw'

Plaintiff is a fiftycigbt (58) year old woman who has sufferad h m an unidentified
mental illness sincc adolescenca (Complaint [CompL], W1,12). Between1986 and November
2006, plaintiff intemkndy woriccd as a libmian for various libraries on L w Island, including
o
the Library. (CompL, 113). In 1988, plaintiff became a member of the State defendant.

(CompL, '114). Plaintiff allege3 that in or about Novamtter 12,2006, the Library terminated her
employment "as a d

t of behaviom that wera symptomaticof her mental ihcss." (Compl,

16-17). Accodiq to plaintifPl "[als a result of behvim manifested by

fi

m]that wau

symptomatic of her menfal illness, libraries in Suffblk County communicated among themselves
and agreed that [she] should not be hired as a librarian. In vemadar, IphtifQ been
has

blackballed h m working in the public libmy system i Suffolk County." (CompL, 140).
n

Plaintiff alleges that she would have been eligible for disability retirement benefits h m
the State def-t

under S d o n 605 of the NYRSSL as a result of her mental illness if she had

made a timely application for such benefits, i.e., within thrte(3) months fiom her last day of

o
work. (Compl., v18,19). According t p

u her m n a illness prevented her fiom
etl

The factual allegations are taken from the complaint and, although disputed by defendants, an
prcwnad to be tnre for purposes of this motion only. They do not constitute findinna of f'act by
the court.

Case 209-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 3 of 26

"rrcopnir[los) that state law rrquind her t 610her retirema benefits application within
o

(3) month of her l& day of cmploymeatn (Compl., ) 20). Nonabcleg, p l M allcgea that
a

d~(hsin~threc(3)mOnmpsri~hsrbrmhcrua~(edtot.Ls~~asai~~]
in obtainhg bcodits to which rhs was entitled," bludiag spsaldallto the State d c f w ' s
W l i t y rat-

dffCSCtM, Thcrua Shumwy ( " S h u m w . (CompL, n21,22). According

to plaintiff, Stnrmw'ay i

n f ' her brathathat the Library could file an application for disability

rotirernent benefits on her behalf. (CompL, 123).

Plaintiff alleges that on or about Febnrary 11,2007, ha brothex requested that the Libmy
file for retirtment benefits on her behalf. (Compl., 125). According to plaintifltS the Libmy
denied her brother's rcqucst on or about February 12,2007. (Compl.,

Plaintiff all-

26).

that on or about February 13,2007, her brother rcqtuxtcd that the Library

nclassiPy her termination as an unpaid leave of absence, but the Library also denied that quest.
(Compl.,

27.29).

P a n i falleges that she applied for disability retirement benefits in November 2007,
litf
when her clinical condition had improved. (Compl., 7 30). Amording to plaintiff, tbc Stab
defendant denied her application based upon her Wun t comply with the Uve.(3) month filing
o

deadtine prescribed by Section 6 5 b ( ) of the NYRSSL. (Compl., ) 31).
0()2
Plaintiff alleges that on or about July 23,2008, she "nquested an 8~~0mmoddion
under
the [ADA] h m [the Ststc M i t ] in the form of a waiver of the filing dcdine." (CompL, (
32). According to plaintiff, the S a e defendant %ever formally rcqxm&dn t that rapest.
tt
o

(Compl., 133). Meanwhile, plaintitrappealed the State dcfndsnt's denial of her application fm
disability retirement benefits, which was a86rmed by thc hear& officer. (Compl., -35,37).

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 4 of 26

$. *

B.

Proccdd H s o '
itn

On IXecmber 23,2009, plaintiff commnrad this stion @d&andanta act&#: (1)

th.1 by MIng to waive the rqt
c -s

for filing of disability ntirrment benefits lmda W o n

605 of the NYRSSL, the State deferadant denied her a reasonable accommodation for her mental

&ability in violation of Title II of the ADA (first cause of action), (Compl..

144); and (2) that

by failing (a) t file a disability retinmcat apptication on her behalf as prmittsd by Seaion
o
605(aX2) of tha NYRSSL and (b) t reclasaiQ her tamination as a leave of *
o
,

the Library

denid her a reasonable accommodation for h a mental disability in violation of both Title I1 of

the ADA and state law (second through fifth causcs of action), (Compl.,
seeks: (a) judgment declaring that def-

46-52).

P

W

violated Title I1 of the ADA and that the Library

also violated state law; (b) (i) an injunction directing the State defendant to waive the three (3)
month filing Hd m k Section 605(b)(2)of the NYRSSL or, (ii) in the alternative,
o
compensatory damgw against tbe L i w , and (c) attorney's fees and costs pursuant to 42

U.S.C.5 12205. (Compl., "Wherefore" Clause).
The State defendant moves pmumt to Rules 12(b)(l) and (6) of the Federal Rules of
Civil Procedure to dismiss the complaiut against it for lack of subject matterjurisdiction and
fail= to state a claim, rcqmtively; and the Library moves pursuant to Rule 12(bX6) of the

FedcraJ Rules of h c & u f c to dizrmiss thC complaint against it for failure to state a claim,

11,

ANALYSIS
A.

Rule 12(bXl)f

..
Sinca a f e d d court generally may not rule on the merits of a case without f ckbmmmg
b
t
.
that it has jurisdiction, aSinochcm Co. Ltd. v. M
-

*

.

,

Case 2:09cv-05635-SJF -ARL Document 33
A
,

Filed 05/05/1 I Page 5 of 26

L.4;.

1.

StandardofRrvvicw

v. Aibf@l

Federal courts are courts of limited jurisdiction,
5445 U.S. 546,552,125 S C 2611,162 L.Ed.2d 502 (2005);
.t

582 F.3d 393,397 (24C r 2009), and
i.

of

may not presi& over cases abstnt s b e t matter jurisdiction.
ujc

545 U.S. at 552,

125 S.Ct 261 1 (holding that federal courts may not exedss jurisdiction absent a statutory basis);

577 F.3d 89,91 (2d Cir. 2009) (holding that federal

of N d . Y . v.

courts lack power to disregard the limits on their jurisdiction imposed by the Constitution or

atr
Congress). Lack of subject m t e jurisdiction cannot be waived and may ba raised at any time

Oscar.GNss & S Q IInc,v. Hollander. 337 F.3d 186,

by a party or by tha court sua sponte.

.
193 (2d Cir. 2003);v-

B
&

& TrUgt Co. v. Lussier, 21 1 F.3d 697,700 (2d C .
i

2000); a &Q Henderson cxL Henderson 131 S.Ct.1197,1202 (Mar. 1,201I)
("IF]ederal courts have an independent obligation to ensure that they do not exceed the scope of
their jurisdiction, and therefore thcy must raise aad decide jurisdictional questions that the perties
either overlook or elect not to press. *

+

Objections to subject matterjurisdiction * + may be

raid at any time."); Union Pacific R Co. v. B
- -

C
(2009) ("[slubject-mattcr jurisdiction,

130 SC. 584,596,175 L . W d 428
.t

* * refers to a tribunai's power to hear a case,a matter

that can never be forfeited or waived." (internal quotations and citatioas omitted)). Jfa court

lacks subject matter jurisdiction, it must dismiss the action. Fed. R C v P. 12(h)(3);
i.

a549 U.S.422,43 1,127 S.Ct 1184,167 L.Ed.2d 15(2007), I must necessarilydecide the
branch of the State &fadant's motion seeking d h m h l pursuant to Rule 12(b)(l) prior to
rendering any detQminafion on the branch of its motion seeking dismissal pursuaat to Rule
1 ( X ) which requires a decision on the merits of the case.
2b6,

,

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Filed 05/05/11 Page 6 of 26

I6 --%

546 U.S.500,514,126 S.Ct. 1235,163 L.Ed2d 1097(2006);
,

PC.V

565 F.3d 56,62-3 (2d Cir. 2009). n e

plaintiff hsJ the burdmof establishing by a prspandenmcc of the cvidmcc that subject m t e
atr
jurisdiction exists.

v, U 483 F.3d 133,137 (2d Clr, 2007);
&

201 F,3d 110,113 (2d Cir. 2000).

2.

Standing

The SWU defendant contends that plaintiff lacks constitutional standing t assert her
o
ADA claim apainSt it.

"Standing is a ftderai jurisdictional question 'determining the power of the court to
entertain tho s i ' Carver v. CiW of New YQ&, 621 F.3d 22 1,225 (2d Cir. 2010) (citing War@
ut"

422 U.S. 490,498,95 S.Ct. 2197,45 L.E&2d 343 [1975]). Constitutional shading
dctedncs "'whether the plaintiff has mado out a "case or controversy" between himself and the

dcfewirmt w t i the meaning of Article I, and is therefore 'entitled to have the court decide
ihn
I'
I
the merits of the dispute or of particular issues.'" Amnestw Intem. USA v. C b ,

F.3d

2011 WL, 941524, at 9 (2d Ci.. M r 21,201 1) (quoting \Harth. 422 U.S. at 498,95 S.Ct.
a.
2197). "[A] plaintiff m s demonstrate standing for each claim a d form of relief s u h .
ut
ogt"

v,

-F.3d,

201 1 WL 1005427, at * 2 (2d Ck. Mar. 23,201 1)

(quoting &tur v. V e a w 352 F.3d 625,642 n 15 (2d Cir. 2003)). To m e the constitutional
.
et
requirement of standing, a plaintiff m s allege (1) an injury-in-fact, i.e., "an invasion of a legally
ut

protected interest which is (a) concrete and particularizcd. . . and (b)actual or imminent, not
conjectural or hypothetical," Carver.621 F.3d at 225; (2) a "causal connection between the injury

3 'L

Case 2:09-cv-05635-SJF -ARL Document 33

aad the con-

Filed 05/05/11 Page 7 of 26

.

complained oc"

504 U.S.555,560-561, 112

S . a 2130.1 19 L.Ed.2d 35 1 (1992); aDd (3) 8 likelihoad that the injury allepod W l l bs

rrdrrssod by a fsvorable decision," IP;a dpp
131 S . h 1436,1442 (Apr. 4,201 1);

..

..

Co. v.

. .
130 S.Ct

2743,2752.177 L.Ed.2d 461 (2010) (holding that in order t establish Article E standing, a
o
l

plaintiff m s allege an "injury [that i ] mnnato,particularized, and actual or imminent; fkirly
ut
s
traceable to the challenged action; and redressable by a hvorable ruling.") If a plaintiff lacks
constitutionel standing, tho court has no subject matterjurisdiction to hear the claim. central

LLC.433 F.3d 181, 1 98 (2d Cir. 2005). "The party invoking f e d d jurisdiction bean the
,..
burden of establishing the0 elements [of standing]." L&j, 504 U.S.at 561,112 S.Ct. 2130;
&Q

S r l e s 555 U.S.488,129 S.Ct. 1 142,1149,173 L.Ed.2d 1 (2009)
u n n r .

(holding that the plaintiff "bears the burden of showkg that he has standing for each type of
relief sought.")

a

Injury-in-Fact

The State defmdant contend3 that plaintiff has no "legally protected i t r s ' in receiving
neet
disability retirement benefits under state law because she failed to comply with a condition
precedent for receiving such benefits, i.e., filing her application within the sWutoqr time period.

The "critical questionn in determining whether the plaintiff has alleged an "injury-in-factn
"is whether 'the plaintiff has alleged such a personal stake in the outcome of the controversy as

to warrant his invocation of federalcourtjurisdiction."

-F.3d,

201 1 WL

a -

Case 2:09-cv-05635-SJF -ARL Document 33

94 524* d * ( m p h h in origindl

"legally

&ilmum,

Filed 0510511 1 Page 8 of 26

U.S.488,129 S.Ct 1142.1 149). A

'may cxid solely by virtue of s t a ~ e creating legal rights,
s

of which

w
m

-0'"

invaion

591 F.3d 37,41 (26 Cir. 2009) (quoting

422

U.S. at 500,9S S.Ct. 2197). "Accordingly, 'standing is gauged by t b ml common-law,
ic
f
stasutory or constitutional claims that a party prwenb.'"

IB,(qwting

,

v. AdmlruJtraton500 U S 72,77, 111 S.Ct.
..

1700, 114 L.Ed.2d 134 (1991)).
Plaintiffs claim against the State defendant alleges a violation of Title II of the ADA,
which provides, in relevant p r , that "no qualified individual w t a disability shall, by reason of
at
ih

such M t y * be excluded fiom participation in or be denied the benefits of the services,

-

programs, or activities of a public entity,or be subjected to discrimination by any such entity."

42 U.S.C. § 12132. The ADA "provides 'remedies, procedures, and rights ...to any person
allesine

. ..

'on on the basis of disability in violation of section 12132'*

*," Fulton. 592

F3d at 42 (quoting 42 U.S.C. § 12133), and conks standing upon individuals to enforce the
right to bt fna h m disability-based discrimination by public entities. Ig, Accordingly,
plaintiff's

allegation that she was "disc-rily

denied a muonable 8ccomm&on

for her

disability in violation of her rights under [Titie II of the ADA]," is d c i e n t to allege an "injuryin-fact" for Article III standhg p u r p ~ s c ~ . , %& jd,
%
The State defendant misconstrues plainWs claim against it. Although the State
defendant may be c r e t that plaintiff has no legally protected interest in d v i n g disability
orc
r e b e n t benefits under Section 605 of the NYRSSL, the legally pro-

interest implicated

by plaintiff's claim against the State defendant is her right to be fkc h m disability-bad

Case 2:09-cv-05635-SJF -ARL Document 33
L
.

Filed 05/05/11 Page 9 of 26

a
*
-.

d i m o n with respect to her participation in, or receipt of banefits from, the Stats

defendant's disability d m n e n t program. Tha State defendant docs not explain why a violation
of that right, i.a., by failing to provide plaintiff with her rcquwted accommodation of a waiver of

the statutory filing deadbe, as distinct from any right to receive disability d r u n e n t benefits
under state law, does not mate an injury-in-fact.

&,
Q

pg,

591 F.3d at 42 (fIndine that

w W e r the merit of tha d e f m h t s ' argument that the plaintiff had no "legally cognizable

intenst in having her i n c d spouse transferred" to a diffennt prison facility, the plaintiff

had standing to pursw her ADA claim that the defendants' r e f i d to accommodate her disability
o
by transferring her spouse in order t allow her to participate in the visiting program deprived her
of her right to b flea Erom disability-based discrimiaation). Accordingly, contrary to the State
e

defendant's conteation, plaintiff meets the "injury-in-t'act"rcqukment of constitutional
standing.

b.

Causation

The State defendant contends that plaintifYhas not demonstrated a causal connection

between her inability to obtain disability retirement benefits and its conduct bccausc: (1) her
inability to obtain benefits was caused solely by her own nonperformance, i.e., her Mure to
timely filean application for such benefits; and (2) its denial of her application was not
discretionary.
Generally, "causation is shown if the defendants' actions had a 'detemk&ve or coercive

effect' on the action that producedthe injury," Carver. 621 F.3d at 226 (quoting

SDeaf. 520 U.S.154,169,117 S.Ct. 1154,137 LEd.2d 281 (1997)). Although "[tlhe causal

r .+.

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 10 of 26

chain un be braken whao a plaintiff's self-intllacd injury &ts

b m his m n a b l e

6odsion t bring about a hamp that he lrnaw to bo avoidablu, * * * mading is not ddeaed
o
maely bccaum the p1aintHh.m in rcm saa contribucod to his own injury. -S

i
.

defatcd only if it is comludcd that the injury i so complete& due t the plaimiffs own hult at
s
o

-Fd
3
,

tObrealrthecausalctzainLn

201 1 WL 941524, at * 1 1

(internal quotations, alferrrtionrr and citadotu omittbd).
Again, tha State defc11drmt's c o n d o n mismnstrucgplainWs claim against it.

Plaintift*~
claim is that the State &fbdmt nfitsedto provide her wt a msonabIe
ih
accommodation in the form of a waiver of ths statutory filing requircmenta fot disability
retirnnent M 5 thereby depriving her of her right to ba frea ftom disability-besad

-n
o.

.

Thus,plaintiff has alleged a causai cormaction between the State def-'s

conduct, i.e,, its rcfhsal to waive the s t a M a r y filing rtq-ts,

and her hjw,i.e., her right to

be fi.et firom Wility-basad discrimination with resped to her participation in, or receipt of

benefits from, State defendant's dsblt retirand program,
the
iaiiy

c.

Redmsability

The State defendant contends that plaintiff's alleged injury cannot be xedmsd by a
favorable decision f o this Court because this Coutt is without authority to grant the injunctive
rm
relief requested by plaintiff requiring it to waive a filine requhmtllt mandated by state law.

-

"To demonstrate redressability,a plaintiff must show the substantial likelihood that the

requested relief wl remedy the alleged injury in fhct."
il
201 1 WL 94 1524, at

-F.3d

16 n 24 (internal quotations and citations omitted). Homer, "where
.

E

-

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 11 of 26

ltgal rij&ts have been invaded, and a federal statute provides for a g e d right to sua for such
invasion, fectcrai courts may use any available remedy to make good the w m g done."
536 U S 181,189,122 S.Ct. 2097,153 L.Ed2d 230 (2002) (quoting B l 327
..
el

U.S. 678,684-85.66 Sect. 773,90 L.Ed. 939 (1946));

&Q

Franklin v.

p b i 503 U.S. 60,70-1,112 S.Ct 1028,117 L.M2d 208 (1992) (holding that
v lc

generally, "fddcourts have the power to award any appropriate relief in a cognizable cause of

action brought pursuant to a fed& stat~te.")The
question of whether judicial relief is available
for a particular cmof action is a merits determination. Spg m
a

s v. P

e 442 U.S. 228,

245,99 S.Ct. 2264'60 L.Ed.2d 846 (1979).
Since Title II of the ADA provides for a general right to sue for, inter &fa, a failure to

make reasonable accommodation, for which this Court may fashion any appropriate remedy, the
issw of whether judicial relief is available to rernady the alleged discriminationby the Statb

ckfcndrrnt is not appropriately addnmd on a Rule 12(b)(1) motion on tha pladhgs
Accordingly, the branch of the State defendant's motion steking d i s m i d of plaintitrs claim

against it for lack of constitutional standing is denied.

3.

Sovereign Immunity

The Eleventh Amendment to the United States Constitution bars suits in federal court by
private parties against a s a e or one of its agencies, absent consent to suit or an express statWmy
tt

waiver of immunity. Board Univemitv of
of

121 S. Ct. 955,148 L Ed. 2d 866 (2001); Edclman v. Jor.

v. G

w 53 1 U.S. 356,362,

41 5 U.S. 65 1,94 S.Ct. 1347,39

L.Ed.2d 662 (1974). Although the Eleventh Amendmutt generally docs not bar suits against

Case 2:OQ-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 12 of 26

s
state offlcialr seeking prospective rtlfeC m E
x U.S. 123.28 S.Ct, 441.52
209

L.Ed.2d 714 (1908); Convm558 F3d 137.150 (2d Cir. 2009). that exception to
Eleventh Ammdment immunity i inapplicable to suits against the States and their agcncig,
s

which am barred rcgardIss of the relief sought.
506 U.S.139,146,113 S.Ct. 684,121 L M 2 d 605 (1993); gpp gdgp

New YQfk, 354 Fed. Appx. 459,461 (2d Cir. Nov.
13,2009) (holding that under the doctrine of E
x pplaintiffrnay seek
the
only

prospactivc relief f o the
rm

by nftminn a state official, rather than the State or state agency
482 F.3d 612.6 18 (2d Cir. 2007) (accord).

ditectly); IpJa

Although a State may choose to waive its Eleventh Amendment sovereign immunity, its

consent to suit "must be 'unequivocally expressad' in the text of the relevant statuten and may
not be implid SossartlopY.~ 1 S.Ct. 1651,1658 (Apr. 20,201 1). Moreover, Section
13
Five of the Fourteenth Amendment to the U i e States Constitution authorha Congress to
ntd
abrogate states' sovereign immunity in order "to d o r c c the substantive rights gwrautccd by the

.

.

Fourteenth Amendment." Bolmcr v. Ohvwa, 594 F.3d 134,146 (2d Cir. 2010) (citation
omitted);

v. G
-

&
Q

546 U.S. 151,154,158-59,126 S.Ct. 877,163

L.Ed.2d 650 (2006). Pursuant to such authority, "Congnss has unambiguously purported to
abrogate states' immunity from Title I1 [ADA] claims."
U.S.C.

p 12202);

&Q

Bolmer.594 F.3d at 146 (citing 42

Gee- 546 U.S. at 154,158-59,126 S.Ct. 877. Accordingly, the

Suprcmc Court har held ihat "insofar as Title II mates a privtite cause of action for damaga

against the Stata for conduct that a c ~violofa the Fourteenth Amendment, Title II validly
l ~
abrogates state sovereign immunity." Georpia 546 U.S. at 159,126 S.CL 877 (emphasisin

Case 2:09-cv-05635-SJF -ARC Document 33

Filed 0510511 1 Page 13 of 26

ICL

origid). The Suprema Court, thus, established the following three (3)-step analysis for courts to

use "in the &st instance, on a claim-byclaim basis" to determine whather there hiw been a valid

abrogation of sovereign immunity, thereby allowing a Title 11ADA claim againat a stats
& f b h n t to proceed: (1) the COWu t f identi@"whichaspects of the Stater's alleged
ms h
t
conduct violated Title fl" of ther ADA; (2) if a violation of Tide II of the ADA is found, the court
must next determine "to what extent such misconduct also violated the Fourteenth ~rnendment;"

and (3) f b d y , if thc alleged misconduct violated Title II of the ADA but not the Fourteenth
Amendment, the court must then determine "wtKthcr Congress's purported abmgation of
sovereign immunity as to that class of conduct is nevertheless valid*

546 U.S.at 158-

59,126 S.Ct. 877.

a

Title I Violation
[

To state a claim under Title I of the ADA, a plaintiff m s allege: (1) that he or she is a
1
ut
"qualified individual w t a disability"and (2) that he or she was excluded Erom participation in,
ih
or benefitting from, a public entity's services, programs or activities, or was otherwise
discriminated against by that entity, (3) by reason of his or her disability.

am i l i v. VESD

Office.No. 10-77-CV, 201 1 W L 1486085, at * 1 (2d C r Apr. 20,201 I); wt D y.
i.
e .
t
a
Bloom-

33 1 F.3d 261,272 (2d C r 2003).
i.

1
.

Qualified Individual with a Disability

Plaintiff concedes that the State defendant's failure to provide her w t her requested
ih
accommodation does not violate the Fourteenth Amendment. (PlahtWs Memorandum of Law
in Opposition to Defendants' Motions to D s i s plf.Mexr.], p. 10).
ims

r

5

/

Case 2:OQ-cv-05635-SJF -ARL Document 33

A.

Filed 05105111 Page 14 of 26

"Disability"

The ADA d c h 'disability" as "(A) a physical or m n a im-ctlt
etl

that -tially

limits one or more major lifb activities of such individual; (8) a record of such a impaigmrnc or
.
having =h an impsirment

(C) being =a
@d

@

*.* 42 U.S.C.g 12102(1).~ he ADA

further define "major life activities* t include " a i g for oneself: perfo
crn

manuat tasks,

Seeins, hearing, eating, s1etpi.q wallrlng, stding, lifting, bending, speaking, breathing,
learning, reading, concentdng, t i l n ,communicating, and working." 42 U S C 8 12102(2).
hnig
...

The complaint does not suffifcientlyallege that plaintiff has a "disability" w t i the
ihn
meaning of the ADA. Although plaintiff alleges that she has

h m an unidentified

mcntai illness since adolesccncf, she does not allege any additional facts plausibly suggesting
that such mental illness substantially limited one or more of her major lifa activities.

Accordingly, plaintiff's

complaint does not state a cognizable claim under Title II of the ADA.

. .

k ~ e T v l t c l a v . S t . O n g p 297 Fed. Appx. 65,67 (2d Cir. Oct. 28,2008) (£Indingthat the
,

plaintiffs complaint did not adequately plead a disability under Title II of the ADA where it

contained no allegations describing how his supposcd mental condition substantially limited a
major life imctivity). Since the complaint does not state a plausible Title 11ADA claim against the
State &fen-

respect to

t h m was no abrogation of the State defendant's sovereign immunity with

claim against the Statt dcfidant

a

Na&relli201 1 WL 1486085, a
t

* 2 (fin&q tbat the district court correctly dctermimd at the first step of the&!IQ
I
that the state conduct at issue did not violate Title II).

' Only the first definition is relevant in this case.
14

aayi
nlss

t

=*

Case 2:09-cv-05635-SJF -ARC Document 33

B.

Filed 05/05/11 Page 15 of 26

"QualifiedIndividualH

Title a of the ADA &finesbbq&ad individual with a disability to mean Uan individual
with a dkbility who, with or without reasonable d c a t i o n s to rules, policies, or

* *, meets the essential eligibility rquircments for the receipt of services or thu participation in
programs or activities provided by a public entity." 42 U.S.C. 5 1213 l(2). Ths ADA's "use of

the term 'qualified' suggests that [courts]must look not to the administration of the program for
which the plaintiff is qualified, but redher its fonnal legal eligibility ~ t n t s . "
33 1 F.3d a 277 (citing 42 U.S.C. $8 12131-32); a&Q ~ 0 ~ v 1 1
!
-

n,

Rot& of hk&d

Examinen. 364 F.3d 79,87 (2d C r 2004) (finding that the plaintiff failed to demonstrate that
i.
she was a "qualified individualnwithin the meaning of the ADA whm the facts suggested that
she did not meet the essential eligibility req-b

for participation in the defendant's

program). "When reviewing a challenge to the eligibility rcquhemcntsof a program, a couzt

m s first review each eligibility rcqukemmtto determine whether or not the requirement is
ut
essential- which entails determining whether an acco-on

is reasonable- and then m s
ut

dedaminc whether the individual has met those rcquhments that arc &aL"

of New Y
&

946 F.Supp. 249,254 ( . . . .
S D N Y 1996), a

m

CasteMo vt

ggg~&, 142 F3d 58

i.
(2d Cr 1998).
"An eligibility requirement will be essential- or an ebccommodation of it will be
unreasonable- if its alteration either imposes undue ihacial and uhhhative bradens on the
public entity or requires a fimdamental alteration in the nature of the program." Castellano, 946
F.Supp. at 254 (internal quotations, alterations and citations omitted);

&Q

28 C.F.R 8

3 5.130(b)(7) ("A public entity shall make reasonable modifications in policies, practices, or

I

*#

Case 2:09-cv-05635-SJF -ARL Document 33

pmecdurss when *

*

Filed 05/05/11 Page 16 of 26

on the basis of &ability, unless [it]

to avoid dn
l
o

demonstrats that making the modifications would fhdmmtally alter tha natuta of the senice,

program or activity."); 28 C.F.R 6 41.53 ("A lpublic entity] shall make reasonable

accommodation to the known physical or m n a limitations of an otharwi~ d e d
etl
q
M a p p a d applicant or rmployee unless [it] can & m

that the accommodation would

impose an undue hardship on the operation of its program.")
Section 605 of the NYRSSL, pursuant to which plaintiff filed h a application for
disability retirement benefits, provides, in relevant part, that "[alt ths time of the filing of an
application * * *, the member must: 1. Have a least ten years of total service credit, and 2. The
t
application m s be filed
ut

(b) within tbrcc months &om the last date the member w s being
a

paid on the payroll * * *." N.Y. R d and Soc. Scc. Law 6 5 b . New Yo& coutts have
0()

intqmtcd a similar nquinmcnt in Section 62 of the NYRSSL to constitute "a condition

ptcctdent to the ripening of any rightsn or entitlement to disability benefits, gpt Bar\ks_ v. New

Yo*

State a nd

(1%Dept. 2002) (quoting

775 (3d Dept. 1999));

v

.

294 A.D.2d 164,165,741 N.Y.S.2d 413

of G r o w v. bl&& 262 A.D.2d 923,924,692 N.Y.S.2d
ofn NCW
York S
m

#u&w=

s

140

kD.2d 756,757,528 N.Y.S.2d 175 (3d Dept. 1988) (holding that the statutory ninety (W>day
requirement "is a condition prtcadent to the existace of a substantive right to ordinary d i m @

a t " ) , and have spacifically rejected the contention t a the statutory
ht

period may ba

extended or waived by the State agency, even whcn the applicant claims that the disability
giving rise to his or her claim for disability benefits also rnrdered him inuipable of asserting his

or h e claim i a timely manner,gqp Grossman.262 A.D.2d at 924; Callace, 140 A.D.2d at 757n

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05105111 Page 17 of 28

L

I

L

)

58, According to those New Yo* co

the State Lyrislaturc added the statutory f l n
iig

rcquinment Wo alfeviata hardships cnated when members of the [Statc] Rethment System

mistakenly tmninats their &ce

prior to f l n for benefits,"
iig

262 A.D.2d at 924,

and, thus, any nmady of the burden imposed by tha statutory time period "must lie with the
Legislature."

ggg &Q

Callafia 140 A.D.2d at 758.

The cases upon which plaintiffrelies for the proposition that "the duty to provide a
reasonable accommodation under the ADA sometimes entails an obligation to act in
contravention of a state statute," (Plf. M m ,p. 13). a inapposite. None of those wu involved
e.
m
a damnhation of whether the plaintiff met the essential eligibility q u h n c n t s for participation
in a particular program or service or whether waiver of an essential eligibility rq-

for ther

d p t of services or benefits constituted a "reasonable accommodation" under the ADA, and all

of those cases involved some extrcise of discrction by the d e f h t . &g

v. Citv qf

386 F.3d 1259 (pCr 2004) (involving the dtfcndsnD1' enfotcemc~~t a local
i.
of
nuisance ordinance against the plaintiff); yt

A
-it
c

u
i.
(BEcIAp"1. 294 F.3d 35,53 (2d Cr 2002) (involving a refusal by the

d e f d t s to grant the plain=

a special use permit); @

8 19 F.Supp. 1 179,1185 (E.D.N.Y. 1993) (involving the application of a local zoning ordinawe
to evict the plain-);
Conn. 2001),

aie

. . v. Citv of West Uvcg, 180 F.Supp.2d 262,292-93 0.
&J&'B &

352 F.3d 565 (2d Cr 2003) (involving dotcement
i.

of local zoning and land use otdinances against the plaintif&); Oxford H o w Inc. v. To

ofCherrv 799 F.S~upp.
450,463 @. NJ 1992) (same).
..

To the contrary,thh case d m not

involve the exercise of any discretion on the part of the State defendant. Rather,state law, as

,

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 0510511 1 Page 18 of 26

.pp

intopnted by the state courts, spifiePlly p l u c k s the State &f&t

fbm exercising any

dircntion to racnd or waive the statutory filing period for the application of disability rrtimnmt

benefits.
mh rplainwr
l u,

ralucsted eceommodadon from the State dcfmdrmt doss not mmly m k

a reasohable modification of the State dtf'endant's own rules, policies or practices over which it

has discmion. Rather, plaintiff seeks a waiver of an essential eligibility requiremat for d p t
of disability benefitsunder NYRSSL 8 605, which the State courts hava dctumined the State

defendant is without authority to grant. Requiring the State defendant to violate state law is not a
reasonable a c c o r n m ~ o as a matter of law.
n

Herschaft

New Y

m

Elections. No. 00 CV 2748,2001 WL 940923,at * 6 (E.D.N.Y. A q . 13,2001).

at8&r

arounds, 37 Fed. Appx. 17 (2d Cir. 2002) (finding that the plaintiff's requested accommodation
of a two to thne week extension of the six (+week time period within which to gather
signatures for an indcpdtnt mmkahg ptition pursuant to New York Election Law 5 6
138(4), which the Board of Elections had no dahxtory authority to waive, was "unreasonabla
simply because it would require the Board of Elections to violate a state statute
v

* *.");

m 885 F.Supp. 1428,143 1-33 (W.D.
Wash. 1995) (distinguishing cases requesting

mdfication of a defendant's internal eligibility rules or policies from cases seek@ waiver of a
statutory requirement of which the clef-

did not have authority to waive and finding that

since the plaintiffs requested accommodation of a statutory age requirement "would essentially

rewrite the statute, it m s be seen as a fundamental alteration in the naturc of the program * * *
ut
[and] could impose an undue linrurcial burden on the program."). As held by Judge Amon in

Her&&, "an $ccommodation that would nquire a defendant to violate an otherwise

Case 2:09-cv-05635-SJF -ARL Document 33
#

a
.
*

Filed 05/05/11 Page 19 of 26

4

constihttional state law is inherently unreasonabb."' 2001 WL 940923, at 6.

Sinw plaintiff did not Ble ha application for dislbility mirunmt benefits within tbrca
(3) mcmths &om the last dato she "was baing paid on the payroU," N.Y. R c t Sa.Sco. Law 8
605@X2)@), she did not meet "the e ~ t i aeligibility nquircmtllts for the receipt of" disability
i
tdimmant bencflts under NYRSSL g 605. Accordingly, plaintiff is not a "qualified individual

with a disability" within the meanins of Title 1 of the ADA Since plaintiff cannot state a
1

cognizable Title II ADA claim against the Statc

&fe abrogation of the
there was no valid

State ddindant's sovereign immunity f o this suit. Thcnfore, pursuant to Rule 12(bXl), the
rm

complaint is dismissed with prejudice as against the State &f-

as bamd by the Qctriae of

sovereign i m n t !
muiy

B.

Rule 120(6)
1.

Standard of Review

The standanf of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Prwcdm is that a plaintiff plead sufEcicnt facts "to state a claim fm relief that is
plausible on its Eace."

B
e l U.S. 544,127 S.Ct. 1955,1974,167
l550

L.Ed2d 929 (2007). The pleading of specific facts is not rq,
e*

give the &fendant '%r noti- of wbat the *

rather a complaint need only

* claim i and the grounds upon which it rests."
s

' Plaintiff does not challenge the constitutionalityof NYRSSL 8 605.
To the extent that p ~ t i £ f s c c kleave to amend her complaint to assert a claim seeking
s
prospective injunctive relief against the Comptroller, in his official capacity as head of the State
defimbt, in order to avoid the Eleventh Amendment's bar to suit under the doctrine set forth in
Yoher request is denied because any such a mt
would be We. Since, as a
m t e of law, plaintiff is not a "qualified individual with a disability," s cannot stats a valid
atr
h
Title 1 ADA claim against the State defendant or its officials, including the Comptroller.
1

.

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 20 of 26

& &

v. p&

551 U.S. 89,127 S.Ct 2197,2200,167 L.Ed.2d 1081 (2007);

rnBddl

604 F.3dllO.119-20 (2d Cir. 20 1Oxaccord). "A pleading that offers
'labels and ooaolusions' or 'a formulaic rcdtafion of the elemnU of a eauaof d o n will not
do.'"

Ashnoft 129 S.Ct 1937,1949,173 L.Ed.2d 868 (2009) (quoting T

m 550

U.S.at 555,127 S.Ct. 1955). "Nor dow a complaint wflice if it tenden 'naked assertion[s]*
devoid of 'fhther factual erdmcaent.'" I (quoting Twornblu( 550 US.at 557, 127 S.Ct.
$

1955). "Factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in ftt.
ic)"

Twomblu.550 U.S. 544,127 S.Ct at 1959. The plausibility standard requires "more than a sheer
possibility that Qefcndanthas acted unlawfulIy." &j& 129 S.Ct. at 1949.

In deciding a motion pursuant t Rule 12(bX6), the Court must liberally construe the
o
claims, accept all factual allegations in the complaint as true, and draw a l l reasonable inferemu

in fsvor of the plaintiff.
F.3d 57,63 (2d Cir. 2011); -in

.

v. &gd of w o n of City School D - . of New Y
I
&
v, P&&i, 516 F.3d 50,56 (2d Cir. 2008); sns;&Q

631

&&QQ

v. Town B o d for Town of S k a n e 6 10 F.3d 55,59 (2d Cir. 2010), a$eni;b 131 S.Ct.
824,178 L.Ed2d 556 (2010) ("When there arc well-pleaded factual allegations, a court should
assume their veracity and thcn d&mnhe whether they plausibly give rise to an entitlement to
relief:')

However, this tenet "is inapplicable to legal conclusions. lkeadbare recitals of the

elements of a cause of action, supported by m a e conclusory statcmcxtts, do not suffice." Tabal,

129 S.Ct at 1949. " W e legal conclusionscan provide the framework of a complaint, they
m s be supported by factual allegations* ]LBL at 1950;
ut

&J t a 610 F.3d at 59

court

can choose t begin by identiQing pleadings that, because they are no more than conclusions, are
o

Case 2:09-cv-05635-SJF -ARL Document 33

c

Filed 05/05/11 Page 21 of 28

- d

not entitled t th assumption of truth." (quotations and citations omitted)). Nonethelw, a
o
plaintiffis not required to plead "specific c v i h or extra facts kyond what is needed to make

tha claim plausible." Arist.604 F.3d at 120-1;

&Q

&&g~,

631 F.3d at 63 ( " W e

a complaint need not contain detailed factual allegations, it requires mom than m unadorned, the
defw-unlawfully-harmed-me accusation."(internal quotations and citation omitted)).
The Court m s limit itself to the facts alleged in the complaint, which an accepted as
ut
tiw; to any documents attached t the complaint as exhibits or incorporated by nfercnce therein;
o

to mattm of which judicial notice may be taken; or to documents upon t.iw trims and effcct of
which the complaint "relics heavily" and which are, thus,rmdcrd "integralnto the complaint
eW

282 F.3d 147, 152-153 (2d Cir. 2002) (citing
62 F.3d 69,72 (2d Cir. 1995));

olco v. MSNBC Cab=

2.

&Q

622 F.3d 104, 111 (2d Cir. 2010).

Article I1 of the ADA7

The Library contends that since plaintiff seeks benefits to which she would only be
entitled by virtue of her employment relationship with it, her exclusive remedy is M aTitle I,
d
not Title II, of the ADA.
Plainms claims against the Library a (1) that it did not timely file an application for
:

For the reasons set forth above, plaintifFEails to safisfjr the f r telement of a Title II ADA
is
claim, insofar as she has not pled sufticicllt facts in ha complaint plausibly suggesting that she is
a "qualifiedindividual with a disability." Howcvct, since the Library assumes this element fm
ptqmses of its motion, and since it would be possible for plaintiff to amend her Titla I1 claims t
o
sufEiciently plead this element as
the.Library unless those claims would otherwise ba
futile, I will address the Library's contention seeking dimis& of this claim on altcrdve
grounds to dctermhc whether any such amendment would be futile.

Case 2:OQ-cv-05635-SJF -ARL Document 33

Filed 05105111 Page 22 of 26

disability rcd.rcmmtbenefits under MCRSSL 4 605(aX2), which allows "[tlhe bead of tho
department in which [tho applicant] is employed" t file an application on behalf of its employee;
o

and (2) that it did not reclassify its tomhation of plahtifl's employment as a leave of absence,
which would have allowed her additiod time to file her application for disability retirement
bensflts under Stction 605(b)(2)(c) of the NYRSSL. Thus, plaintiffs claim against the Libray
clearly relate t her employment with that entity, as opposed t the programs and services the
o
o
Library offers to the public at large.

As noted above, one of the elements required to state a claim under Title I1 of the ADA is
that the plaintiff was excluded h m participation in, or was dcnicd the benefits of, a public

. .

entity's services, programs or activities, or was otherwise discnmrnated against by the public

entity.

42 U.S.C.8 12132;

331 F.3d at 272. Thm is no dispute that the

Library is a "public entity" within the meaning of Title 1 . & 42 U S C 8 1213l(1) (defhhg
1
...
"public entity" to include "(A) any State or local govcrmn~~~G (B) any departmat, agency,
[and]
special purpose d i i c t or other i n s t r u m d t y of a State or States of local government * +.")

However, courts are split over whether Title IT of the ADA, entitled "Public Services," m y give
a

. ..

rise to claims of employment o
-n

by a public employer, or whether tbe exclusive

remedy for such claims lies within Title I of the ADA.' Comoarr:

v.

170 F.3d 1169 (p 1999) (holding that Title I1 does not cover
Cir.

. .. .

employment -on);

m o m v. Citv

of New YQ&, 715 F.Supp.2d 394,408

Title I of the ADA, entitled "Employment," provides, in relevant part, that "[nlo c o v d entity
shall discrimhate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advan-t,
or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment." 42
U.S.C.g 12112(a).

C

- ,*

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 23 of 26

(E.D.N.Y. (holding that Title I of the ADA "Is the cxclusiva remedy for employment
2010)
dscrimination claims, oven if the employet is a publio entity");

w B 502 F.Supp.2d 324,333-34 (E.D.N.Y.2007) (AQding that the language of the ADA
clearly aud unambiguously devoted Title I exclusively t employment discrimination claims);
o

s of T

T

m No.

3:05CV957,2007 WL 963178, a 2 @. Conn. M r 30,2007) (holding that Title I1 of the ADA
t
a,

does not appiy to employment actions,which m s ba brought under Title I of that Act);
ut

a

133 ~ . 3 d (11" Cu.
816

WaterC
1998) (holding that Title I docs cover employment discrimination);
1

CIO v.+
N

342 F.Supp.2d 160

..

(S.D.N.Y. 2004) (accord); and Jyhkgr v. 0
-

190 F.Supp.2d 444,

449 (E.D.N.Y. 2002) (citing cases in this Circuit concluding that claims of employment
discrimination are permittedunder Title 11).

To date* the Second Circuit has not expressly considmd this issue,
-83

pslm v, S

a

Fed. Appx. 35 1,354 n 1 (2d Ci.. Dec. 3,2003) (declining to reach the isme of whether
.

. .. .

Title I of the ADA covers employment dmrmmWon); M&D v. I & l F.3d 461
[
& ,189
&

(1999) (unpublished opinion) (accord), although it has applied Title 1 of the ADA in
1

..

employment discnrmnation actions where this issue was not raised,
3 15 Fed. Appx. 361 (2d Cir. Mar. 17,2009);

interpreted Title II*santi-disc*on

142 F.3d 58 (2d Cir. 1998), and it has

provisions to be "a catch-all phrase that prohibits all

dimimhtion by a public entity, regardless of the context

tv of

v. New YQ&

~ap,
EO,

117 F.3d37,44-45 (2dCir. 1

*,* W
9

v
9

a

t
7

i

v
)

v
,

~

e

Case 209-cv-05635-SJF -ARL Document 33
9-

Filed 0510511 1 Page 24 of 26

C

YQ&b&

252 F.3d 163,171 n. 7 (2d Cir. 2001).

The Supremo Court also has not resolved this issue, although it har fairly m t l y used
l a m implying that it would resolve the issue in favor of a finding W Title n das not M

. ..

employment drscrtrmnadOn-

V

&IhilSSW V* Lane.541 U.S+509,5 16-7, 124 S.Ct. 1978, 158

LEd.2d 820 (2004) ( ' T b M A "forbids discninination against persons with disabilitiw in three

major a m of pubLic life: employment, which b covered by Title I * * *; public services,
programs, and activities, which arc the subject of Title II; and public accommodations, which are
covered by Title IlI.")P; W A T m lec. v. Martin, 532 U.S.661,675,121 S.Ct. 1 879,149

L.Ed.2d 904 (2001) (accord);

Board of Trustees of U n i v w of

531 U S
..

..

356,360 n 1 (2001) ("No party has briefad the question of whether Title I1 of the ADA . is
.
available for claims of employment di-on
that subject." (citing

v. United S
-

when Title I of the ADA expressly deals with
464 U.S.16,23,104 S.Ct. 2%,78 L.Ed2d 17

(1 983))).

B a d upon the well-reasoned decisions of the most recent district court cases in this
C M t , as well as the aforementioned language in the Supreme C u t cases, I find that Title I of
or

the M A is the exclusive remedy for plaintiffs claims of discrimination against the Libmy, all
of which relate to the Wtrms, conditions, and privileges of

m]employment" with that entity.

The Second Circuit has recognized this same distinction between the fkst three (3) titles of the
ADA Sr;r; w e t t a D 33 1 F.3d at 272.
,
'O In RusselJ~,
the Supreme C u t held that "where Congress includes particular language in one
or
section of a statute but omits it in another d o n of the same Act, it is generally gmcmmcd that
Congress acts intentionally and purposely in the disparate inclusion or exclusion," 464U S at
..
23,104 S.Ct 296. Thus, it m y be i n f d by the S q m e Comt's citation to
a
that it
would deem Title II's omission of any employment language, when such language is expressly
inchded in Titlc I of the ADA, to have been a purposeful exclusion and not a "simple mistake in
ddmanship." Ig,

~

,
p

.-

Case 2:OQ-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 25 of 26

r

42 U.S.C. 12112(a). Accordingly, p1ainWs Title II ADA claims against the Library (second
8

and third causes of action) are dismissed w t prejudice pursuant to Rule 12(b)(6) for failure to
ih
state a claim.LL

3.

StataLawCtaims

Although the dismissal of state law claims is not required when the federal claims in an
a d o n am dismissed,

Xbam&&%

of

SC,
. t 2047,141 L.Ed.2d 364 (1998); Naum v. So-

v. &&.&& 524 U S 381,39 1-92,118
..

. .

New

208 F.3d 384,388 (2d C r 2000), 8 federal court m y decline to exercise supplemental
i.
a

jurisdiction over the state law claims pursuant to 28 U S C 9 1367(cX3).
...

Bio,

129 S C 1862,18661867,173 L.Ed2d 843 (2009) (holding
.t

that a district court's decision whether to exercise supplemental jurisdiction a t r dismissing
fe

every ciaim over which it had originaljurisdiction is purely discretionary). Tha court m s
ut
"consider and weigh in each case, and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and c m t in order to decide whether to exercisejurisdiction"
oiy

. .

over the pendent state law claims.M
7,108 SC. 614,98 L.Ed2d 720 (1988);
.t

&

v. CQBdL 484 U.S.343,350, n
.

v. New York-Pres-

455

F.3d 118,122 (2d Cr 2006). Generally, where all of the federal claims in an d o n are
i.

. .

d m n m d before trial, the balance of factors will hvor k l i n i n g to exercise supplemental

jurisdiction over the mmahhg state law claims. &

484 U S at 350 n 7,108 S C .614;
..
.
.t

Plaintiff does not seek leave to amend her c m l i t to assert a Title I ADA claim, nor refute
opan
the Library's contention that she cannot state a valid Title I M A claim because she failed to
exhaust her administratve remedies with respect to my such claim as required by 42 U S C 8
...
12117(a).

-

Case 2:09-cv-05635-SJF -ARL Document 33

Filed 05/05/11 Page 26 of 26

e ; ;.,
-

N
e
w F.3d
497
(2d CLr. 2007); &&g&

F.3dO9,118-119

455 F.3d at 122.

In light of the dismissal of all fadcrai claims in this action at the pleadings stage, and
upon consideration of all relevant fixton, i.e., judicial economy, convenience, fairness and
d t y , I decline to exercise s u p p l c m jurisdiction over plaintiff's mmaiaiq pendant state
~
law claims. Accordingiy, plaintifFs state law claims against the Library (fourth and Afth causes;

of action) an dismissed pursuant to 28 U.S.C.

28 U.S.C.

5 1367(c)(3). Plaintiff is advised that pursuant to

5 1367(d), the statute of limitations for her state law claims, to the extent those claims

were timely filed in this Court, is tolled for a period of thirty (30) days after the date of tbfr

order, unless a longer tolling period is othcmisc provided under state law.

III.

Conclusion
For tfae reasons stated herein, defendants' respective motions to dismiss the complaint

pursuant to Rule 12(b) of the Federal Rules of Civil Proc&im are granted to the extent set forth

herein and the complaint is dismissed in its tntirety. The Cltrk of the Court shall enter judgment
in favor of defendants and close this c s .
ae

SO ORDERED.

SANDRA J. FEUERSTEIN
United Stertes District Judgu
Dated: May 5,20 11
Central Islip, N.Y.