Clark v. New York State Office of the State Comptroller et al

Filing 53

ORDER, that Wapner's 36 Motion to Dismiss is DENIED as to Clark's 1983 claim. That Wapner's 36 Motion to Dismiss is GRANTED insofar as it seeks dismissal of Clark's claims under the ADA, the ADEA, and Title VII. That the Sta te defendants' 26 Motion to Dismiss is GRANTED as to the Title VII claims asserted against them in their individual capacities. That the state defendants' 26 Motion to Dismiss is GRANTED insofar as Clark's complaint seeks money damages against OSC under the ADEA. That State defendants' 26 Motion to Dismiss is DENIED in all other respects. That the Unions' 30 Motion to Dismiss is DENIED in all respects. Signed by Judge Gary L. Sharpe on 9/30/2010. (jel, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________ DONNA CLARK, Plaintiff, v. NEW YORK STATE OFFICE OF THE STATE COMPTROLLER, et al., Defendants. _________________________________ APPEARANCES: FOR THE PLAINTIFF: Donna Clark Pro Se 43 Raymo Street Albany, NY 12209 FOR THE DEFENDANTS: State Defendants HON. ANDREW M. CUOMO New York State Attorney General The Capitol Albany, NY 12224 CSEA Defendants Civil Service Employees Association 143 Washington Avenue P.O. Box 7125, Capital Station Albany, NY 12224 Defendant John Wapner ADRIENNE J. KERWIN Assistant Attorney General OF COUNSEL: 1:09-cv-716 (GLS\DRH)

DAREN J. RYLEWICZ, ESQ.

KATHRYN C. COLLINS, ESQ.

Furman, Kornfeld Law Firm 61 Broadway, 26th Floor Suite 403 New York, NY 10006 Gary L. Sharpe District Court Judge

NEIL S. KORNFELD, ESQ.

MEMORANDUM-DECISION AND ORDER I. Introduction Pro se plaintiff Donna Clark commenced this action against various employees of the Office of the State Comptroller (OSC), Civil Service Employees Association (CSEA) members, and John Wapner, alleging violations of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the New York Human Rights Law (NYSHRL), and her First Amendment and Due Process rights pursuant to 42 U.S.C. § 1983. (Compl., Dkt. No. 1.) Pending are motions to dismiss filed by all defendants. (Dkt. Nos. 26, 30, 36.) For the reasons that follow, the motions are granted in part and denied in part. II. Standard of Review The standard of review under FED. R. CIV. P. 12(b) (1) and (6) is well

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established and will not be repeated here. For a full discussion of the standards, the court refers the parties to its decision in Hunt v. United States, No. 1:07-CV-0112, 2007 WL 2406912, at *1 (N.D.N.Y. Aug. 21, 2007), and Ellis v. Cohen & Slamowitz, LLP,701 F. Supp. 2d 215, 217-18 (N.D.N.Y. 2010.) As relevant to this motion, review of a Rule 12(b)(6) motion "is generally limited to the facts and allegations that are contained in the complaint and in any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv., Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004) (citations omitted). III. Background1 Donna Clark was a Calculation Clerk for OSC from June 30, 2005, to March 1, 2007. (See Compl. ¶ 26, Dkt. No. 1.) Clark suffers from posttraumatic stress disorder, chronic pain, amnestic disorder, post-concussive syndrome, cognitive deficits, photophobia, hip and lumbar injuries, headaches, word retrieval problems, and tangential speech patterns. (See Id. at ¶ 23.) Clark requested and was granted medical leave from October

While Clark's complaint is difficult to comprehend, it will nevertheless be construed in the light most favorable to her as a pro se plaintiff and as the non-movant.

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26, 2006, to December 3, 2006. (See Id. at ¶ 34.) On March 1, 2007, OSC placed Clark on involuntary administrative leave from her job. (See Id. at ¶ 136.) Thereafter, Clark underwent a medical examination and participated in a proceeding where it was determined that she was unfit to perform her job. (See Id. at ¶¶ 136, 142.) IV. Discussion A. 1. Sufficiency of the Complaint State Defendants a. Exhaustion

Defendants contend that several claims set forth in the complaint must be dismissed because Clark has not exhausted her administrative remedies with respect to those claims. Specifically, they argue that some claims were neither included in the complaint filed with the EEOC nor reasonably related to those claims, and that various defendants were not specifically named in the EEOC complaint. While defendants concede that Clark has alleged causes of action under Title VII, the ADA, and the ADEA, they specifically dispute factual allegations pertaining to each cause of action in relation to exhaustion. The aspect contesting factual allegations surrounding the causes of action
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is premature. Accordingly, the court declines to dismiss Clark's complaint for failure to exhaust. b. Title VII and Individual Liability

As a preliminary matter, the court notes that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (citation omitted). Accordingly, to the extent that Clark raises a claim against individual state defendants under Title VII the claim is dismissed. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004). In addition, OSC argues that Clark has failed to state a claim under Title VII. At this juncture, the court will permit the complaint to survive and denies the motion. c. Age Discrimination in Employment Act

The Eleventh Amendment bars claims for money damages against state agencies or state officials in their official capacity under the ADEA. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). Consequently, to the extent that Clark's complaint alleges money damages against OSC under the ADEA, that claim is dismissed. d. Remaining Claims
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The state defendants maintain that Clark has failed to state a viable claim under the FMLA, § 1983, the First Amendment, and the NYSHRL. Again, at this juncture, these claims survive. The state defendants motion to dismiss is denied. 2. Defendant John Wapner Clark's complaint alleges that John Wapner is liable in his personal capacity pursuant to the ADA, the ADEA, and Title VII. Wapner contends that this portion of the complaint should be dismissed because he is not Clark's employer and individual liability is not viable. The court concurs and dismisses the complaint, insofar as it seeks to hold Wapner liable under the ADA, the ADEA, or Title VII. Also, Wapner contends that Clark has failed to state a retaliation claim pursuant to the FMLA or the NYHRL because the complaint does not allege that Wapner is her employer. Again, the court concurs and dismisses the complaint insofar as it seeks to hold Wapner liable under the FMLA and NYSHRL. However, the court declines to dismiss Clark's §1983 claim against Wapner at this juncture. 3. Union defendants
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Although difficult to decipher, the complaint appears to be suing CSEA for a variety of claims. At this juncture, CSEA's motion to dismiss is denied. IV. Conclusion WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Wapner's motion to dismiss (Dkt. No. 36) is DENIED as to Clark's § 1983 claim; and it is further ORDERED that Wapner's motion to dismiss (Dkt. No. 36) is GRANTED insofar as it seeks dismissal of Clark's claims under the ADA, the ADEA, and Title VII; and it is further ORDERED that state defendants' motion to dismiss (Dkt. No. 26) is GRANTED as to the Title VII claims asserted against them in their individual capacities; and it is further ORDERED that state defendants' motion to dismiss (Dkt. No. 26) is GRANTED insofar as Clark's complaint seeks money damages against OSC under the ADEA; and it is further ORDERED that state defendants' motion to dismiss (Dkt. No. 26) is DENIED in all other respects; and it is further ORDERED that the Unions' motion to dismiss (Dkt. No. 30) is
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DENIED in all respects; and it is further ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties. IT IS SO ORDERED. September 30, 2010 Albany, New York

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