Dollinger v. New York State Insurance Fund
Filing
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MEMORANDUM-DECISION AND ORDER granting 25 Motion to Amend/Correct; denying 30 Letter Request; granting 20 Motion for Judgment on the Pleadings: The Court hereby ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; a nd the Court further ORDERS that Plaintiff's motion to amend the complaint is GRANTED; and the Court further ORDERS that Defendant's letter motion (Dkt. No. 30) is DENIED as moot; and the Court further ORDERS that the Clerk of the Court shall accept for filing Plaintiff's proposed second amended complaint (Dkt. No. 27), which is now the operative pleading in this matter; and the Court further ORDERS that all further non-dispositive pretrial matters are referred to Magistrate J udge Peebles; and the Court furtherORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 12/10/15. [copy mailed to plaintiff] (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT A. DOLLINGER,
Plaintiff,
vs.
3:14-CV-908
(MAD/DEP)
NEW YORK STATE INSURANCE FUND,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
ROBERT A. DOLLINGER
84 State Line Road
Vestal, New York 13850
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant
JOSHUA L. FARRELL, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pro se plaintiff, Robert Dollinger, brought this action against his employer, the New York
State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work
environment based on his disability in violation of Title VII of the Civil Rights Act of 1964
("Title VII") and the Americans with Disabilities Act ("ADA"). See Dkt. No. 1. Defendant filed
a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt.
No. 5-1. Plaintiff responded, filed a cross-motion to amend his complaint, and submitted a
proposed amended complaint in support of his motion. See Dkt. No. 8-1.
On March 30, 2015, the Court issued a Memorandum-Decision and Order granting in part
and denying in part Defendant's motion to dismiss. See Dkt. No. 10 at 21. The Court dismissed
Plaintiff's Title VII discrimination, retaliation, and hostile work environment claims, as well as
Plaintiff's ADA discrimination claims, but denied the motion as to Plaintiff's ADA hostile work
environment and retaliation claims. See Dkt. No. 10 at 22. Moreover, the Court granted
Plaintiff's cross motion to amend the complaint. Thereafter, Defendant filed a motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure seeking
dismissal of the amended complaint. See Dkt. No. 20-1. Plaintiff opposed the motion and filed a
cross-motion to amend his complaint, but failed to submit a proposed amended complaint. See
Dkt. No. 23, 25. On August 26, 2015, Plaintiff filed his proposed amended complaint. See Dkt.
No. 27. Defendant opposed Plaintiff’s motion for leave to amend. See Dkt. No. 26. Currently
before the Court is Defendant's motion for judgment on the pleadings and Plaintiff's motion to
amend the amended complaint. Also before the Court is Defendant's letter motion asking the
Court to disregard Plaintiff's proposed second amended complaint.
II. BACKGROUND
A.
Defendant's Motion for Judgment on the Pleadings
On June 2, 2015, Defendant filed a motion for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure, arguing that "[b]ecause the Eleventh Amendment
to the United States Constitution affords the New York State Insurance Fund [] sovereign
immunity from Plaintiff's two remaining causes of action . . . ", Plaintiff's amended complaint
must be dismissed. See Dkt. No. 20-1 at 1. Defendant argues that the Eleventh Amendment bars
a citizen from bringing a federal action against his state and its agencies, regardless of the type of
relief sought, unless the state waives immunity or Congress exercises its power under the
Fourteenth Amendment to override immunity. See id. at 3-4. Further, Defendant argues that the
NYSIF was held to be a "state agency" within the meaning of the Eleventh Amendment by the
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Second Circuit, and therefore entitled to sovereign immunity. See id. at 4. Finally, Defendant
argues that because Title I of the ADA "constitutes the exclusive remedy for employment
discrimination claims under the ADA," and because Title I claims are barred by the Eleventh
Amendment, Plaintiff's claims must be dismissed. See id.
B.
Plaintiff's Motion to Amend the Complaint
On July 31, 2015, Plaintiff filed a motion to amend the complaint, arguing that there is no
undue delay, repeated failure to cure deficiencies, undue prejudice, or futility, absent which, the
Court must grant Plaintiff leave to amend and supplement the pleadings. See Dkt. No. 25 at 3.
Plaintiff contends that there has been no undue delay because "the parties are within the discovery
time frame . . . and no depositions have been conducted." See id. Plaintiff argues that there has
been no repeated failure to cure deficiencies in the pleadings because there has only been one
prior amendment to the complaint. See id. Further, Plaintiff asserts that granting the amendment
would not create undue hardship because the only claims that would be added would be
retaliation claims stemming from events that occurred after the original complaint was filed. See
id. Finally, Plaintiff argues that granting the amendment would not be futile because the claims
of retaliation to be added to the amended complaint would survive a motion to dismiss. See id. at
3-4. Plaintiff, however, failed to include with his motion to amend a proposed amended
complaint.
After Defendant had already responded to Plaintiff's motion to amend, primarily
on the ground that Plaintiff failed to attach a proposed pleading, Plaintiff filed a proposed
amended complaint. See Dkt. No. 27. In a one-page response, Defendant asks the Court to
disregard the proposed amended complaint because the filing disregarded the briefing schedule
set by the Court and because it was not submitted until after Defendant had already submitted its
response to Plaintiff's motion to amend, thereby preventing Defendant from responding to the
merits of the proposed pleading. See Dkt. No. 30.
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III. DISCUSSION
A.
Standard of Review
In deciding a Rule 12(c) motion, the court "'employ[s] the same standard applicable to
dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss pursuant
to Rule 12(b)(6) tests the legal sufficiency of the party's claim, accepting as true all well-pleaded
facts and drawing all reasonable inferences in favor of the pleader. See Patane v. Clark, 508 F.3d
106, 111-12 (2d Cir. 2007); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). Ultimately, "when the allegations in a complaint, however true, could
not raise a claim of entitlement to relief," the complaint must be dismissed. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007). When the pleader is pro se, the court must hold their
pleadings to a more lenient standard than "formal pleadings drafted by lawyers." Govan v.
Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) ("A pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers").
According to Rule 15 of the Federal Rules of Civil Procedure, since a responsive pleading
has already been filed, "a party may amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely give leave when justice so requires." Fed. R.
15(a)(2). In particular, a pro se litigant "should be afforded every reasonable opportunity to
demonstrate that he has a valid claim.'" Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting
Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). However, leave will only be granted
absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
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virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S.
178, 182 (1962).
B.
Sovereign Immunity
Under the Eleventh Amendment of the United States Constitution, states and their
agencies are not amenable to suit by their citizens in federal court unless the state waives
immunity or Congress unambiguously exercises its power under section five of the Fourteenth
Amendment to override immunity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). A
state is deemed to have waived its Eleventh Amendment protection "only where stated 'by the
most express language or by such overwhelming implications from the text as will leave no room
for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting
Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 241 (1985).
Section Five of the Fourteenth Amendment states as follows: "The Congress shall have
the power to enforce by appropriate legislation, the provisions of this article." U.S. CONST.
AMEND.
XIV, § 5. Acting pursuant to this section, Congress can abrogate a state's sovereign
immunity by enacting "appropriate legislation" to that end, meaning legislation enacted "pursuant
to a valid grant of constitutional authority." Id.; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73
(2000); see e.g., Will, 491 U.S. at 66. However, such legislation must be an "unequivocal
expression of congressional intent" to override the sovereign immunity of the state. Atascadero
State Hosp., 473 U.S. at 240 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
99 (1984)).
In Bd. of Trustees of Univ. of Alabama v. Garrett, the Supreme Court examined whether
Congress effectively abrogated sovereign immunity by enacting Title I of the ADA, which
governs employment discrimination. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S.
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356 (2001). The Court held that the ADA was not within the scope of Congress's constitutional
authority under Section One of the Fourteenth Amendment. The Equal Protection Clause does
not require states to make special accommodations for the disabled, as long as they have a
rational basis for their actions. Id. at 367 (citing City of Cleburne, Tex. v. Cleburne Living
Center, 473 U.S. 432 (1985)). Although Congress is not strictly limited to the Supreme Court
jurisprudence on the matter, legislation that goes beyond the scope of Section One must
demonstrate a "congruence and proportionality between the injury to be prevented or remedied
and the means adopted." Garrett, 531 U.S. at 365 (internal quotation omitted).
In examining the legislative record, the Court found that it "simply fail[ed] to show that
Congress did in fact identify a pattern of irrational state discrimination in employment against the
disabled." Id. at 368. Therefore, Congress' enactment of Title I of the ADA was not an exercise
of its power under Section Five, and does not allow private citizens to sue states and their
agencies in federal court under this provision. Id. at 374. By this same reasoning, claims brought
pursuant to Title V of the ADA, which governs retaliation, are also barred by the Eleventh
Amendment. Warren v. Goord, No. 99 CV 296F, 2006 WL 1582385, *17 (W.D.N.Y. May 26,
2006), aff'd, 2008 WL 5077004 (2d Cir. Nov. 26, 2008); Salvador v. Lake George Park
Commission, No. 1:98-CV-1987, 2001 WL 1574929, *3 (N.D.N.Y. Apr. 26, 2001), aff'd sub
nom., Salvador v. Adirondack Park Agency of the State of New York, 35 Fed. Appx. 7 (2d Cir.
2002).
In a suit against a state or state agency, a plaintiff's claim will be barred by sovereign
immunity regardless of whether the relief sought is monetary or injunctive. Seminole Tribe of
Fla., 517 U.S. at 58 ("[W]e have often made it clear that the relief sought by a plaintiff suing a
State is irrelevant to the question whether the suit is barred by the Eleventh Amendment");
Penhurst, 465 U.S. at 100. However, under the doctrine set forth in Ex Parte Young, 209 U.S.
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123 (1908), a suit may proceed against a state official in his or her official capacity –
notwithstanding the Eleventh Amendment – when a plaintiff "alleges an ongoing violation of
federal law" and seeks injunctive relief "properly characterized as prospective." In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotation and other citations omitted). "Such
claims, however, cannot be brought directly against the state, or a state agency, but only against
state officials in their official capacities." Ghent v. Moore, 519 F. Supp. 2d 328, 334 (W.D.N.Y.
2007) (citing Santiago v. New York State Dep't of Correctional Services, 945 F.2d 25, 32 (2d Cir.
1991)) (other citations omitted).
The amended complaint as pled does not entitle Plaintiff to relief. Plaintiff filed this
action solely against the NYSIF. The amended complaint does not name any other persons in
either their official or individual capacities. See Dkt. No. 12. at ¶ 3. In a previous suit against
Defendant, the Second Circuit held that the NYSIF is a state agency, and therefore "entitled to
sovereign immunity." Perry v. State Ins. Fund, 83 Fed. Appx. 351, 353 (2d Cir. 2003). Plaintiff's
only remaining claims are hostile working environment and retaliation claims brought pursuant to
Title I of the ADA. See Dkt. No. 10 at 18, 21. Since Defendant's immunity has not been waived
and claims under Title I of the ADA did not override sovereign immunity, Plaintiff's claims are
barred by the Eleventh Amendment. For these reasons, Defendant's motion for judgment on the
pleadings is granted.
C.
Leave to Amend or Supplement the Complaint
Insofar as Plaintiff intends to sue the NYSIF under the ADA, his claims are barred by the
Eleventh Amendment. However, in his proposed second amended complaint, Plaintiff names
sixteen individuals in addition to the NYSIF and its Board of Commissioners. Because the only
relief Plaintiff seeks is that Defendant "cease and desist from wrongful activity," he is able to
bring suit against the individual actors in their official capacity under the Ex Parte Young
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exception. See Dkt. No. 12 at 15. Plaintiff may bring a valid claim against the individuals that
perpetrated the harassment and retaliation, named in their official capacity; therefore, granting
leave to amend would not be futile in this case.
Additionally, the Court notes that, in his proposed second amended complaint, Plaintiff
has alleged violations not only of his rights under the ADA, but also violations of the
Rehabilitation Act. See Dkt. No. 27 at 4 (alleging violations of the Americans with Disabilities
Act and the Rehabilitation Act of 1973). Since New York and its agencies have continued to
accept federal funds, the courts in the Second Circuit have repeatedly held that sovereign
immunity has been waived for claims brought pursuant to Section 504 of the Rehabilitation Act.
See, e.g., Quadir v. New York State Dep't of Labor, 39 F. Supp. 3d 528, 537 (S.D.N.Y. 2014)
(citing cases); Marino v. City Univ. of New York, 18 F. Supp. 3d 320, 331-32 (E.D.N.Y. 2014)
(citing cases).
There has been no undue delay because Plaintiff filed this motion in July 2015 and some
of the events Plaintiff intends to add to his complaint occurred as recently as June and July 2015.
There has been nothing to suggest bad faith on Plaintiff's part, and Plaintiff has not repeatedly
failed to cure deficiencies, as there has only been one prior amendment to the complaint. Finally,
granting the amendment would not unduly prejudice Defendant. Finally, the Court notes that,
although Defendant argued prejudice because the proposed second amended complaint was filed
after it filed its opposition to Plaintiff's motion to amend, Defendant did not seek to supplement or
amend its original response to the proposed pleading.
In light of the special solicitude afforded to pro se litigants and for the reasons set forth
above, the Court grants Plaintiff's motion to amend.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
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applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the
Court further
ORDERS that Plaintiff's motion to amend the complaint is GRANTED; and the Court
further
ORDERS that Defendant's letter motion (Dkt. No. 30) is DENIED as moot; and the Court
further
ORDERS that the Clerk of the Court shall accept for filing Plaintiff's proposed second
amended complaint (Dkt. No. 27), which is now the operative pleading in this matter; and the
Court further
ORDERS that all further non-dispositive pretrial matters are referred to Magistrate Judge
Peebles; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 10, 2015
Albany, New York
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