Goonewardena v. State of New York Workers Compensation Board et al

Filing 32

MEMORANDUM ORDER: Defendants' motion to dismiss the Title VII claim is denied as against the WCB and granted as against Farnum. The motion to dismiss the NYSHRL and NYCHRL claims is denied as against Farnum in his personal capacity and granted i n all other respects. The motion to dismiss Plaintiffs § 1983 due process claim is granted in its entirety. The motion to dismiss Plaintiffs § 1983 equal protection claim is granted as against WeB and as against Farnum for damages in his of ficial capacity, and is denied in all other respects. This Memorandum Order resolves docket entry number 24. This case remains referred to Magistrate Judge Pitman for general pretrial management. The parties are directed to meet promptly with Judge Pitman to discuss settlement.(Signed by Judge Laura Taylor Swain on 9/29/2011) (rdz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------J(
BERNARD W. GOONEWARDENA,
Plaintiff,
No. 09 Civ. 8244 (LTS)(HBP)

-v-

NEW YORK STATE WORKERS'
COMPENSATION BOARD
Defendants.

-------------------------------------------------------x
MEMORANDUM ORDER

In this action, Plaintiff Bernard W. Goonewardena ("Plaintiff'), proceeding pro
se, asserts claims under 42 U.S.c. § 1983; Title VII ofthe Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e
U.S.c. § 621 et

the Age Discrimination in Employment Act of 1967 ("ADEA"), 29
the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12010

et seq.; the New York State Human Rights Law CNYSHRL"), N.Y. Exec. L. § 290 et~; and
the New York City Human Rights Law CNYCHRL"), N.Y.C. Admin. Code. § 8-101

et~

against Defendants the New York State Workers' Compensation Board ("the WCB") and
Winston Farnum ("Farnum"). The Court has jurisdiction ofthis action pursuant to 28 U.S.C.
§§ 1331, 1367.

Defendants have filed a motion pursuant to Federal Rules of Civil Procedure
12(b)(1) and (6) to dismiss the Second Amended Complaint. The Court has reviewed carefully
the parties' submissions and, for the reasons that follow, Defendants' motion is granted in part
and denied in part.
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BACKGROUND

This following is a summary of the relevant allegations in Plaintiffs Second
Amended Complaint.
Plaintiff was unlawfully terminated from his position as a Compensation
Investigator at the WCB on account of his race, national origin, age and disability. Plaintiff is a
South Asian man from Sri Lanka who was 69 years old and recovering from a knee injury at the
time he was terminated.
Plaintiff was well qualified for the position of Compensation Investigator, having
"served for 18 Y2 years receiving 'outstanding' ratings in performance" as a Compensation
Claims Investigator and Compensation Insurance Underwriter at the New York State Insurance
Fund, where his duties were "much more comprehensive and complex than the duties of [a]
Compensation Investigator" at the WCB. (2d Am. Compi.

~~

16, 19.) However, the position of

Compensation Investigator was first offered to two men "of African racial lineage" rather than to
Plaintiff (id.
WCB (id.

~

~

48(A)), because "White, Hispanic and African lineage are favored in hiring" at the

19). The men turned down the position because, at pay grade 14, they felt that the

compensation was inadequate. (Id. ~~ 33, 48(A).) Plaintiff was eventually hired despite the
WCB's alleged preference for White, Hispanic, and African employees, as "Defendants could not
have rejected or pass[ ed] over Plaintiff in initial hiring ... under the one in three rule required to
be followed."1 (Id. ~ 29.) Plaintiff was hired on a probationary basis.

Presumably, Plaintiff is referring to New York Civil Service Law § 61(1), which
constrains hiring and promotion decisions in the New York State civil service, and
which reads in pertinent part, "Appointment or promotion from an eligible list to a
position in the competitive class shall be made by the selection of one of the three
persons certified by the appropriate civil service commission as standing highest on
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In December 2007, the pay grade for the position of Compensation Investigator
rose from 14 to 16. (Id. '133.) Plaintiff received a letter dated March 6,2008, terminating his
employment at WCB, while he was away from work recovering from a knee injury.

M

~

7.) At

approximately the same time, the WCB hired the two men who had originally declined offers of
employment as Compensation Investigators on account of the lower pay grade.

®

~

33.)

Plaintiff alleges that he was terminated to create an open position for one of these men at the
newly elevated pay grade.

®

~

33.) These men were less qualified than Plaintiff but were

preferred for employment, in part, because they shared a common "racial lineage" with Plaintiffs
supervisor, Farnum. (Id.

~~

33, 48(A).)

Plaintiff received a letter dated March 14,2008, from the WCB Director of
Personnel with an enclosed performance evaluation which, according to the letter, should have
been given to Plaintiff with his termination notice. (Id.

~

8(a).) Plaintiff alleges that the

performance evaluation was "false" and "used as a means to terminate employment." (Id.

~

7.)

Plaintiff was reinstated on March 20,2008, after he threatened to "give the story
to the newspapers for the benefit of other workers in the private sector who may be dismissed by
their employers after an injury when a Compensation Investigator of the New York State
Worker's Compensation Board himself was dismissed while on leave of absence due to an
injury."

M

~

6.)
Plaintiffs employment was terminated a second time on July 2,2008, after

Plaintiff received another allegedly false performance evaluation.

M

~

8( d).) Plaintiff claims

that he was reinstated "in bad faith, and for discriminatory purposes, ... to prepare new grounds
for the second dismissal." (Id. ~ 66(A).) Between the time of his reinstatement and his second

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termination, defendant Farnum called Plaintiff"garbage" and "senile" and "engaged in daily
harassment, hostility and discriminatory verbal attacks."
(Id. ~~ 94, 115, 123(A).) According to Plaintiff, Farnum once stated:
You claim to be a diplomat. . .. You are not diplomat. You are garbage. Do you
know who is a diplomat? Condoleezza Rice is a diplomat, she is a smart
diplomat. She is a smart black. You are black[;] you are not white.
(Id. ~ 117(A).) Farnum is also alleged to have "verbal[ly] attack[ ed]" Plaintiff by stating:
Yes, you come from a third world country. What else it is. [sic] You have to be
grateful that you have a living in the United States better than in your country.
(Id.

~

125.)
Plaintiff has attached multiple evidentiary proffers to the Second Amended

Complaint, including an Equal Employment Opportunity Commission ("EEOC") Intake
Questionnaire as well as a document labeled "United States Equal Employment Opportunity
Commission Complaint of Discrimination Against an Employer," both stamped "Received Apr
272009 EEOC-NYDO-CRTIU." Defendants have also submitted evidentiary proffers including
an unfiledjudgment in the case of Goonewardena v. NYS Worker's Compo Bd. from an Article
78 proceeding in the Supreme Court of the State of New York, New York County, dated October
1,2009,2 and an EEOC Notice of Charge of Discrimination form, stamped "Received lun 05
2009." (Dec1. of Michael l. Siudzinski, Exhs. A, B.)
DISCUSSION

The inquiry on a motion to dismiss for lack of subject matter jurisdiction under

2

Defendants have chosen to preserve for any further proceedings the argument that
Plaintiffs claims are barred by the doctrine of res judicata in connection with the
Article 78 proceeding. (Defs.' Mem. of Law in Support of Mot. to Dismiss the
CompL 5 n.2.)

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Rule l2(b)(l) concerns whether the district court has the statutory or constitutional power to
adjudicate the case.

Makarova v. United States, 201 F.3d 110,113 (2d Cir. 2000).

"[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v. Drakos,
140 F .3d 129, 131 (2d Cir. 1998). "A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists." Makarova, 201 F .3d at
113.
In deciding a Rule 12(b)(6) motion to dismiss, the Court accepts as true the
non-conclusory factual allegations in the complaint and draws all reasonable inferences in the
plaintiffs favor. Roth v. Jennings, 489 F.3d 499,501 (2d Cir. 2007); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face. '"
Iqbal, 129 S. Ct. at 1949 (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." rd. at 1949.
ADA and ADEA Claims
The Eleventh Amendment bars suits against States and State agencies unless the
State expressly waives its immunity or Congress validly abrogates that immunity. See generally
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996). The WCB is an agency and an arm
of the State of New York entitled to the protections of the Eleventh Amendment. See Petway v.
N.Y. City Housing Authority, 10-cv-1419, 2010 WL 1438774, at *2 (E.D.N.Y. Apr. 7,2010).
The Supreme Court of the United States has unequivocally held that Congress did not validly

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abrogate Eleventh Amendment immunity in either the ADEA or Title I of the ADA, which is the
title concerning employment discrimination. See Bd. of Trustees v. Garrett, 531 U.S. 356,374
(200 I) (addressing Title I ofthe ADA); Kimel v. Florida Board of Regents, 528 U.S. 62, 92
(2000) (addressing the ADEA). Thus, Plaintiffs ADA and ADEA claims against the WCB will
be dismissed for lack ofjurisdiction.
The ADA and ADEA claims will also be dismissed as against Farnum because, in
the absence of abrogation of Eleventh Amendment immunity, he is immune from suit for
damages in his official capacity, see Edelman v. Jordan, 415 U.S. 651, 663 (1974), and because
the ADA and ADEA do not themselves provide for individual, supervisor liability, Darcy v.
Lippman, 356 Fed. App'x 434,437 (2d Cir. 2009) (summary order) (H[T]he ADA and ADEA ...
do not provide for actions against individual supervisors.").
Title VII Claim
Plaintiffs Title VII claim will be dismissed as against Furman because Title VII,
like the ADA and ADEA, does not provide for actions against individual supervisors. 356 Fed.
App'x at 437.
Defendants also argue that Plaintiffs Title VII claim must be dismissed because it
is untimely. Claims brought under Title VII must be filed with the EEOC within 300 days of the
alleged unlawful act. 42 U.S.c. § 2000e-5(e)(1). As evidence of untimeliness, Defendants
proffer a HNotice of Charge of Discrimination" form that was filed by Plaintiff with the EEOC
and which bears a stamp ofHReceived Jun 05 2009." (Decl. of Michael J. Siudzinski, Exh. B.)
A claim filed on that date would be untimely, as Plaintiff was terminated more than 300 days
earlier. However, in response to Defendants' proffer, Plaintiff has submitted an EEOC Intake

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Questionnaire as well as a document labeled "United States Equal Employment Opportunity
Commission Complaint of Discrimination Against an Employer," both stamped "Received Apr
272009 EEOC-NYDO-CRTIU," which is a date within the 300-day window. CPl.'s Aff. in Opp.
to Mot. to Dismiss; attached exhibit available approximately 54 pages into the 100+ page
sUbmission.) A motion to dismiss serves to test the sufficiency of a complaint and not to weigh
competing evidentiary proffers and, thus, the Court will not dismiss Plaintiffs Title VII claim on
timeliness grounds.
Defendants assert further that the Title VII claim should be dismissed for failure
to allege facts sufficient to state a claim upon which relief can be granted. To establish a prima
facie case of Title VII employment discrimination, a plaintiff must show that (1) he is a member
of a protected class; (2) he was qualified for the position held; (3) he suffered an adverse
employment action; and (4) the circumstances surrounding the action gave rise to an inference of
discrimination. S1. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). At the pleading
stage, however, a plaintiff need not go so far as to establish a prima facie case. Swierkiewicz v.
Sorema N.A., 534 U.S. 506,511-12 (2002). Rather, "the ordinary rules for assessing the
sufficiency of a complaint apply," id. at 511, and thus, to state a claim, a complaint need only
contain a "short and plain statement [of] the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a). A plaintiff alleging employment discrimination must plead sufficient facts
to give a defendant reasonable notice of the claims against it and must "amplify [his] claim with
some factual allegations in those contexts where such amplification is needed to render the claim
plausible." Boykin v. KeyCorp, 521 F.3d 202, 212-13 (2d Cir. 2008) (quoting Iqbal v. Hasty,
490 F.3d 143, 157-58 (2d Cir. 2007)) (emphasis omitted). Here, Plaintiff has alleged that he was

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a member of multiple protected classes (defined variously by his race, national origin, color, age
and disability), was qualified for the position of Compensation Investigator and was unjustifiably
terminated from his employment. He has also alleged that his termination took place under
circumstances giving rise to an inference of unlawful discrimination - specifically, that Farnum
made hostile racial remarks to Plaintiff, and that Plaintiff was terminated so that Farnum could
hire someone who shared his "racial lineage" but had less relevant work experience than Plaintiff
had. This is sufficient, at the pleading stage, to support an inference of discrimination.
Norville v. Staten Island University Hosp., 196 F.3d 89, 95 (2d Cir. 1999) ("A plaintiff may
support an inference of race discrimination by demonstrating that similarly situated employees of
a different race [from plaintiff] were treated more favorably."). Accordingly, the motion to
dismiss Plaintiffs Title VII claim as against the WCB will be denied.
NYSHRL and NYCHRL Claims
Plaintiffs claims made pursuant to the NYSHRL and NYCHRL will be dismissed
as against the WCB and against Farnum in his official capacity because they enjoy immunity,
pursuant to the Eleventh Amendment. See Tuckett v. N.Y. State Dep't of Taxation & Fin., 99
Civ. 679,2000 WL 1028662, at *2 (S.D.N.Y. Jul. 24,2000) ("[N]othing in the text of the
[NYS]HRL constitutes a waiver of immunity or consent to be sued."); Leiman v. State of New
York, 98 Civ. 5538, 2000 WL 1364365, at *7 (S.D.N.Y. Sept. 20,2000) (dismissing NYCHRL
claims against state defendants on Eleventh Amendment grounds); see also Dube v. State Univ.
of New York, 900 F.2d 587, 595 (2d Cir. 1990) (holding that the Eleventh Amendment grants
immunity to state officials acting in their official capacity for injunctive and other types of relief).
However, "[t]he Eleventh Amendment provides no immunity for state officials sued in their

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personal capacities." Dube, 900 F.2d at 595. Accordingly, Defendants' motion to dismiss
Plaintiffs NYSHRL and NYCHRL claims will be denied as to Farnum in his personal capacity
and granted in all other respects.
Section 1983 Claims
In his Opposition Memorandum, Plaintiff asserts that Defendants' discriminatory
employment actions violated his constitutional right to equal protection and due process. The
Court construes these assertions to be claims made pursuant to 42 U.S.C. § 1983. Defendants
argue that, because Plaintiff failed to specifically plead these theories of relief pursuant to § 1983
in the Second Amended Complaint, Plaintiff must not now be permitted to argue for such relief.
Defendants are mistaken. A complaint must give "full notice of the circumstances giving rise to
the plaintiffs claim for relief' but "need not also correctly plead the legal theory or theories and
statutory basis supporting the claim." Simonton v. Runyon, 232 F.3d 33, 36-37 (2d Cir. 2000).
Thus, Plaintiffs § 1983 claims will not be dismissed on account of his failure to identify them in
the Second Amended Complaint.
However, Plaintiffs § 1983 claims will be dismissed as against the WCB and
Farnum in his official capacity with regard to damages, as the statute does not abrogate Eleventh
Amendment immunity. See Quem v. Jordan, 440 U.S. 332, 341 (1979).
Further, Plaintiffs § 1983 due process claim will be dismissed to the extent it is
asserted against Farnum in his individual capacity for failure to allege facts demonstrating a
deprivation of due process. Where, as here, it is alleged that "a state employee intentionally
deprive[dJ an individual of property or liberty," the Due Process Clause of the Fourteenth
Amendment is not violated "so long as the State provides a meaningful postdeprivation remedy."

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Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 FJd 877,880 (2d Cir.
1996). "[A]n Article 78 proceeding is a perfectly adequate postdeprivation remedy." Id. at 881.
With regard to Plaintiffs § 1983 equal protection claim, Defendants have
construed Plaintiffs argument to be that he falls into a "class of one" because, at the WCB,
Plaintiff was the "only employee of Sri Lanka[n] ethnicity approximately twenty or thirty years
older than his colleagues." (Defs.' Reply Mem. 7.) Defendants argue that Plaintiffs claim must
be dismissed because, in the context of public employment, the Supreme Court eliminated class­
of-one equal protection claims in Engquist v. Oregon Dep't of Agr., 553 U.S. 591,607 (2008).
In Engquist, the Court addressed claims asserted by a plaintiff who "alleged that defendants
discriminated against her on the basis of her race, sex, and national origin" and also alleged "that
she was fired not because she was a member of an identified class (unlike her race, sex, and
national origin claims), but simply for 'arbitrary, vindictive, and malicious reasons.'" Id. at 595.
The Engquist plaintiff s latter allegation constituted her class-of-one claim. Id. In the instant
case, Plaintiff has clearly pleaded race and national origin class membership sufficient to support
an equal protection claim and, further, the Court does not read the Second Amended Complaint
as bringing a class-of-one claim. Accordingly, Defendants' arguments as to the class-of-one
theory are unavailing and the claim survives as against defendant Farnum in his individual
capacity.
CONCLUSION

For the foregoing reasons, Plaintiffs ADA and ADEA claims are hereby
dismissed in their entirety. Defendants' motion to dismiss the Title VII claim is denied as against
the WCB and granted as against Farnum. The motion to dismiss the NYSHRL and NYCHRL

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claims is denied as against Farnum in his personal capacity and granted in all other respects. The
motion to dismiss Plaintiffs § 1983 due process claim is granted in its entirety. The motion to
dismiss Plaintiffs § 1983 equal protection claim is granted as against WeB and as against
Farnum for damages in his official capacity, and is denied in all other respects. This
Memorandum Order resolves docket entry number 24.
This case remains referred to Magistrate Judge Pitman for general pretrial
management. The parties are directed to meet promptly with Judge Pitman to discuss settlement.
SO ORDERED.
Dated: New York, New York
September 29,2011

~RSWAIN

United States District Judge

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