McClain v. New York State Department of Taxation and Finance
MEMORANDUM & ORDER: Defendant's 9 Motion to Dismiss is granted. So Ordered by Judge Nicholas G. Garaufis on 8/14/2014. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
13-CV-3104 (NGG) (RML)
-againstNEW YORK STATE DEPARTMENT OF
TA)(ATION AND FINANCE,
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Ernestine McClain brings an employment discrimination action against
Defendant New York State Department of Taxation and Finance, filed on May 24, 2013.
(Compl. (Dkt. 1) at 1.) Plaintiff brings this claim under (1) the Age Discrimination in
Employment Act of 1967 ("ADEA''), 29 U.S.C. §§ 621-34; (2) Title I of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112-17; and (3) Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-l 7. (Id.) Defendant moves to dismiss
under Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss
(Dkt. 9) at 1.) Defendant's Motion to Dismiss is GRANTED.
From May 1993 to August 2012, Plaintiff worked for the Defendant state agency as a
technology specialist. (Compl. at 6, 9.) By November 10, 2010, Plaintiff was the oldest, but not
the most senior, specialist in her office in Brooklyn. (Id.; Feb. 4, 2011, E-mail, Ex. 8 to Pl. Aff.
in Opp'n to Def.'s Mot. ("Aff. in Opp'n") (Dkt. 10-1) ("I am the least senior ITS@ Hanson Pl
[in Brooklyn] .... ").) She injured her back while working and filed a request for reasonable
accommodation on November 12, 2010, seeking "temporary relief from heavy lifting and
handling of large heavy shipments while under doctor's care." (Req. for Reasonable
Accommodation, Ex. I to Aff. in Opp'n.) Attached to Plaintiffs request for reasonable
accommodation was a doctor's note stating that she should avoid any heavy work for two weeks.
(Nov. 11, 2010, Ltr., Ex. II to AfI. in Opp'n.) Ellen Mindel, Assistant Director of the Office of
Diversity and Affirmative Action, (Compl. at 3), received this application and on December 28,
2010, informed the Plaintiff that no heavy work had come in for some time.
(E-mail, Ex. III to Aff. in Opp'n.) In the same e-mail, Mindel instructed Plaintiff to move boxes
near her supervisor's desk. The boxes weighed 320 pounds in total, but Mindel stated that
Plaintiff was permitted to "move them over several days and ... [to] take out some of the
contents in the boxes to reduce the weight." (Id.; Aff. in Opp'n at 3.) After attempting several
times to change her tasks due to her back pain, Plaintiff moved the shipment as she was
instructed. (Compl. at 8-9.)
In January 2011, Plaintiff was reassigned to "a more strenuous job, in a remote location,"
in Nassau County. (Compl. at 6.) The transfer required a lengthy commute. (MJ Plaintiff was
told that she was chosen for the transfer because "there will be the least amount of disruption to
customer service." (Id. at 9.) Plaintiff also learned that the office of her new assignment was
scheduled to close and merge with the existing Suffolk County office. (Id.) On March 3, 2011,
Plaintiff began work in the Nassau office. (Id.) Plaintiff was assigned more strenuous work in
Nassau in spite of her ongoing back pain. (Id. at 10.) After she reinjured her back on August 29,
2011, Plaintiff was placed on medical leave at some later date that is left unspecified in her
complaint. (Compl. at 6; Aug. 27, 2012, Ltr., Ex. XI to Aff. in Opp'n.) Plaintiff was on medical
leave when the Nassau office closed in January 2012, less than one year after her reassignment.
(Compl. at 10.) The Department of Taxation terminated Plaintiff on August 29, 2012, after
being absent from work for one year. (Mem. of Law of the N.Y. State Dept. of Taxation &
Finance in Supp. of Its Mot. to Dismiss ("Mem. in Supp.") (Dkt. 9) at 2.)
On July 18, 2012, Plaintiff filed a discrimination complaint with the New York State
Division of Human Rights alleging employment discrimination on the basis of age and disability.
(Holgado Affirm., Ex. A ("Admin. Compl.") (Dkt. 9-2) at 3-5.) Plaintiff filed a similar
complaint with the Equal Employment Opportunity Commission ("EEOC") on July 23, 2012,
under the ADEA and the ADA but not under Title VII, because Plaintiff alleged discrimination
was based only on age and disability. (Admin. Compl. at 1.)
In December 2012, Plaintiff's supervisor, Emmanuel Pratt, told Plaintiff that she had no
claim against him for discrimination "because [they] are the same." (Id. at 6.) Plaintiff took this
statement to be a racial comment that she could not sue Pratt because both Plaintiff and Pratt are
Plaintiff alleges that she was reassigned in retaliation for her application for a reasonable
accommodation and because she was the oldest person in the Brooklyn office. (Id. at 16.)
Plaintiff states that Defendant's intent was to constructively discharge her from her duties once
the Nassau office closed. (Id.) Plaintiff brought this claim against Defendant, seeking remedies
under the ADEA, the ADA, and Title VII. (Id. at 1.) Defendant filed the instant Motion to
Dismiss, along with Plaintiff's Opposition, on October 18, 2013. (Dkt. 9.)
When reviewing a complaint, a court must construe a prose litigant's pleadings
liberally, see Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially if those pleadings
allege civil rights violations. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiffv.
Sealed Defendant # 1, 53 7 F.3d 185, 191-93 (2d Cir. 2008). Courts must read pro se complaints
with "special solicitude" and interpret them to raise the "strongest arguments that they
suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal
quotation marks omitted).
Rule 12(b)(l) of the Federal Rules of Civil Procedure provides for dismissal of a claim
when the federal court "lacks jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(l). The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence. See Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
After construing all ambiguities and drawing all inferences in plaintiffs favor, a district court
may properly dismiss a case for lack of subject matter jurisdiction under Rule l 2(b)( 1) if it lacks
the statutory or constitutional power to adjudicate it. See id. (citations omitted).
If faced with a motion to dismiss pursuant to both Rules 12(b)(l) and 12(b)(6), a court
should "decide the 'jurisdictional question [under Rule l 2(b)( 1) ] first because a disposition of a
Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction."'
Tirone v. N.Y. Stock Exch., Inc., No. 05-CV-8703 (WHP), 2007 WL 2164064, at *3 (S.D.N.Y.
July 27, 2007) (quoting Magee v. Nassau Cnty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y.
1998)); see also Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.
1990). Because the court dismisses this case for jurisdictional reasons under Rule l 2(b)( 1), it
need not discuss its merits under Rule 12(b)(6).
Defendant argues that this court does not have proper jurisdiction over Plaintiffs ADEA
and ADA claims, as they are barred by the Eleventh Amendment, which confers immunity from
suit on states and their agencies. (Mem. in Supp. at 1.) Defendant further argues that Plaintiff
may not bring a claim under Title VII because she failed to exhaust all remedies at the
administrative level. (IQ) The court accepts these arguments and thus declines to further
examine the merits of Plaintiffs claims.
A. ADEA Claim
Plaintiff claims that she was constructively discharged by her employer because she was
the oldest employee in her office, a violation of the ADEA. (Compl. at 1; Mem. ofL. in Opp'n
to Def.'s Mot. to Dismiss ("Mem. in Opp'n") (Dkt. 10) at l); see 29 U.S.C. § 623(a)(l) (stating
that it is unlawful for an employer to discharge an individual "because of such individual's
age."). Defendant argues that Plaintiffs suit is barred because it has not waived its Eleventh
Amendment sovereign immunity. (Mem. in Supp. at 3-4.)
The Eleventh Amendment to the United States Constitution states: "The Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State." U.S. Const. amend.
XI. This Amendment provides immunity to states by "prevent[ing] congressional authorization
of suits by private parties against unconsenting states." Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 78 (2000) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996)) (internal
quotation marks omitted). This rule applies when a "State or one of its agencies or departments
is named as the defendant ...." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
Some exceptions exist to this rule. Section five of the Fourteenth Amendment empowers
Congress to abrogate state sovereign immunity in order to enforce the provisions of that
amendment. U.S. Const. amend. XIV,§ 5. A state may also choose to waive its sovereign
immunity. However, a state has not waived its sovereign immunity unless it has made a "clear
declaration of [the] state's consent to suit against itself in the federal court." Kennecott Copper
Corp. v. State Tax Comm'n, 327 U.S. 573, 577 (1946).
The language of the ADEA abrogates the sovereign immunity of the states granted by the
Eleventh Amendment. However, the Supreme Court has held that "is not a valid exercise of
Congress' power under§ 5 of the Fourteenth Amendment. The ADEA's purported abrogation of
the States' sovereign immunity is accordingly invalid." Kimel, 528 U.S. at 91; see also Hamad
v. Nassau Cnty. Med. Ctr., 191 F. Supp. 2d 286, 296-97 (E.D.N.Y. 2000). Therefore, a claim
against a state may only be brought under the ADEA ifthe state consents to suit.
Plaintiff brings suit against the New York State Department of Taxation and Finance,
which is an agency of the state for Eleventh Amendment purposes. Miller v. N.Y. State Dep't of
Taxation & Finance, 480 F. Supp. 2d 574, 581 (E.D.N.Y. 2007). New York has not waived its
sovereign immunity for the purposes of the ADEA or the ADA. See Nicolae v. Office of
Vocational & Educ. Servs. for Individuals with Disabilities, 257 F. App'x 455, 457 (2d Cir.
2007). Additionally, there is no evidence that New York has made a "clear declaration" waiving
its sovereign immunity in the case at hand. Rather, Defendant states explicitly that "[n]o such
invocation or declaration has been made by the State of the New York with respect to the ADA
or ADEA." (Mot. to Dismiss at 5.) Therefore, this claim must be dismissed for lack of subject
matter jurisdiction. See Fetcho v. N.Y. State Dep't of Taxation & Finance, No. 10-CV-3881 (JS)
(WDW), 2012 WL 294396, at *3 (E.D.N.Y. Jan. 27, 2011) (dismissing ADEA and ADA claims
against the agency because New York has not abrogated its Eleventh Amendment immunity).
However, Plaintiff may attempt to seek remedies under New York state law for damages against
her former state employer, keeping in mind relevant statutes of limitations. See Kimmel, 528
U.S. at 91-92.
Plaintiff claims that she was not accorded reasonable accommodations by her employer
as required by the ADA. (Mem. in Opp'n at 1.) Defendant again responds that it is immune from
suit under the Eleventh Amendment. (Mem. in Supp. at 3-4.)
Under Title I of the ADA, it is unlawful to fail to "mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a disability,
who is an applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of such
covered entity." 42 U.S.C. § 12112(b)(5)(A). Although the ADA validly abrogated state
sovereign immunity in relation to certain instances of discrimination covered by that Act, the
Supreme Court has held that that state immunity is not waived in relation to reasonable
accommodation in state government employment. Bd. ofTrs.·Ofthe Univ. of Ala. v. Garrett,
531U.S.356, 360 (2001); see also Tennessee v. Lane, 541 U.S. 509, 521-22 (2004)
(distinguishing discrimination against the disabled in the provision of public services from
discrimination against the disabled in public employment).
Plaintiffs ADA claim falls squarely within Title I. The gravamen of her claim is the
failure of her department to grant her what she considers reasonable accommodation for her back
injury, by failing to assign her lighter duties and or transfer her to an office closer to her home.
This failure led to her subsequent re-injury and prolonged absence from work. (See Compl. at 3
("I mailed the doctor's note with the Reasonable Accommodation Request"); Compl. at 5-7
(discussing Plaintiffs request for "Reasonable Accommodation"); Aff. in Opp'n at 1; see also
Aug. 27, 2012, Ltr., Ex. 10 to Aff. in Opp'n .)
Plaintiffs claim is thus barred by the Eleventh Amendment. See Garrett, 531 U.S. at
360. Plaintiff seeks to overcome this deficit by arguing that her treatment was "cruel and
unusual" within the meaning of the Eight Amendment. (Mem. in Opp'n at 1.) However, this
provision was designed to apply in the criminal justice context and not in a context, such as
employment, in which a person remains free to leave the situation. See Ingram v. Wright, 430
U.S. 651, 665-70 (1977) (holding that paddling of schoolchildren was not "cruel and unusual" in
light of the history and purpose of the Eight Amendment and the fact that children are not
physically restrained from leaving public school grounds). As discussed above in relation to the
ADEA, New York has not waived its sovereign immunity for the purposes of the ADA. The
claim must thus be dismissed for lack of subject matter jurisdiction. As with her ADEA claim,
state remedies may remain available to Plaintiff.
C. Title VII Claim
Plaintiff also brought a claim against her employer under Title VII of the Civil Rights
Act, claiming unlawful discharge because of her race. (Aff. in Opp'n at 5; Mem. in Opp'n
at 1-2.) Plaintiff made this claim after her former supervisor made a racial comment to Plaintiff
some time after she had been discharged. (IQJ Defendant argues that the court lacks jurisdiction
over this claim because Plaintiff failed to exhaust her administrative remedies at the EEOC.
(Mem. in Supp. at 6-7.)
An employee may bring a claim under Title VII if an employer unlawfully discharges the
employee because of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l).
However, plaintiffs wishing to bring claims under Title VII must go first to the EEOC and obtain
a right to sue letter after the Commission's investigation of the matter is complete. "A district
court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or
are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that
alleged in the EEOC charge." Butts v. N.Y.C. Dep't of Hous. Pres. & Dev., 990 F.2d 1397,
1401 (2d Cir. 1993) (quoting Stewart v. U.S. Immigration & Neutralization Serv., 762 F.2d 193,
198 (2d Cir. 1985)).
In this case, Plaintiff may not bring her Title VII claim in federal court because Plaintiff
failed to exhaust all remedies with the EEOC. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,
82-83 (2d Cir. 2001) (citing Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)).
Plaintiff filed complaints with the EEOC only under the ADEA and the ADA, noting that the
basis for discrimination was age and disability. (Admin. Compl. at 5.) Plaintiff never made a
claim of employment discrimination on the basis of race, color, religion, sex, or national origin
under Title VII. (See id.)
Plaintiffs supervisor, Pratt's comment that she could not sue him because they were both
black was not "reasonably related" to the earlier complaint. (Id. at 6.) The comment was made
eleven months after Plaintiffs termination, which suggests that it was unrelated to the reasoning
behind Plaintiffs termination. (Aff. in Opp'n at 7.) In addition, her supervisor was not the
person responsible for Plaintiffs constructive termination. It was Mindel who refused her
requests for accommodation, and the department's administrative office, not Pratt, made the
decision to transfer her and to refuse to transfer her back. (Id. at 5.) Therefore, Plaintiff was
required to file a separate EEOC complaint before bringing suit in court. Because Plaintiff failed
to exhaust available remedies before beginning this suit, her Title VII claim must be dismissed.
Plaintiff also claims, in her opposition, that she was punished for reporting that Pratt was
using government resources to conduct his side business. (Aff. in Opp'n at 3.) However, she did
not make this claim in her Complaint, nor is it related to her Title VII claim in any manner. (See
generally Compl.) As result, it cannot provide a rationale for why her claim should be treated as
fully exhausted before the EEOC.
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED.
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFI~
United States District Judge
Dated: Brooklyn, New Yark
August Ji_, 2014
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