Blige v. City University of New York et al

Filing 53

MEMORANDUM DECISION AND ORDER adopting 48 Report and Recommendations re: 26 Motion to Dismiss, filed by Denise Dyce, Carmelo Batista, John Siderakis, Robert Curry, City University of New York, 39 Motion to Dismiss filed by Pasquale M orena: The Report contains no clear error of law and this Court adopts the Report in full. Having adopted the Report in full, Defendants' motion to dismiss is GRANTED with prejudice, with the exception for Plaintiff's gender discrimination claim, which is dismissed without prejudice with leave to amend, if amendment would not be futile. The Clerk of Court is directed to close the motions at ECF Nos. 26 and 39. (Signed by Judge George B. Daniels on 3/21/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
WILLIE BLIGE,

Plaintiff,
-againstCITY UNIVERSITY OF NEW YORK, DENISE
DYCE, PASQUALE MORENA, JOHN
SIDERAKIS, CARMELO BA TIS TA, and
ROBERT CURRY

MEMORANDUM DECISION
AND ORDER
15 Civ. 08873 (GBD) (KHP)

Defendant.
------------------------------------x
GEORGE B. DANIELS, United States District Judge:
Pro se Plaintiff Willie Blige filed this action against his former employer, the City

University of New York ("CUNY"), Denise Dyce, Pasquale Morena, John Siderakis, Carmelo
Batista, and Robert Curry (the "Individual Defendants") on November 10, 2015. (Compl., ECF
No. 1.) Plaintiff seeks $700,000 in damages. (Pl. Am. Compl., ECF No. 6.) He alleges that
Defendants discriminated against him on the basis of race, color, sex, military status, and arrest
record in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
("Title VII") and age in violation of the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621 et seq. ("ADEA''). Plaintiff alleges discriminatory termination, unequal terms and
conditions of his employment, unfair labor practice, and slander based on his identity as an
African American male over forty years of age. (Pl. Am. Compl., at 1-3.) Defendants filed a
motion to dismiss the Complaint in its entirety for failure to state a claim and for lack of subjectmatter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(l) on July

18, 2016. (CUNY Defs.' Mot. to Dismiss 1 ("CUNY Defs.' Mot."), ECF No. 26, at l; Def.
Morena Mot. to Dismiss ("Morena Def. Mot."), ECF No. 39, at 1.)
This matter was referred to Magistrate Judge Katharine Parker. (ECF No. 10.) Before
this Court is Magistrate Judge Parker's Report and Recommendation, ("Report," ECF No. 48),
recommending that this Court dismiss Plaintiff's ADEA and state law claims against CUNY and
its agents for lack of jurisdiction under the Eleventh Amendment, and dismiss Plaintiff's
remaining claims for failure to state a claim for relief pursuant to Rule 12(b)(6). (Id. at 2.) 2 The
Report contains no clear error of law and this Court adopts the Report in full.
I.

LEGALSTANDARD
This Court may accept, reject or modify, in whole or in part, the findings and

recommendations set forth within the Report.

See 28 U.S.C. § 636(b)(l)(C).

When no

objections to a Report are made, the Court may adopt the Report if "there is no clear error on the
face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005)
(citation omitted).
The pleadings of parties appearing pro se are generally accorded leniency and should be
construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. of
N. Y & NJ, 400 F. App'x 600, 601 (2d Cir. 2010) (quoting McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir. 1999); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after
Twombly ... we remain obligated to construe a pro se complaint liberally.").

1

This motion includes the CUNY Defendants and all other Individual Defendants, with the exception of Defendant
Morena who filed his own motion.
2

The relevant procedural and factual background is set forth in greater detail in the Report and is
incorporated herein.

2

Magistrate Judge Parker advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report, at 29); see also 28
U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b). No party has filed objections.

II.

SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT
The Report properly held that Plaintiff's ADEA and state law claims should be dismissed

pursuant to Rule 12(b)(l) for lack of subject matter jurisdiction because, as an agency of the
State of New York, CUNY is immune from suit under the Eleventh Amendment. 3 (Report, at
13-15.) The Second Circuit has held that CUNY senior colleges are an "arm of the state"
entitled to sovereign immunity under the Eleventh Amendment, as they are "ultimately
accountable to, and dependent upon, the state." Clissuras v. City Univ. of N. Y, 359 F.3d 79, 83
(2d Cir. 2004); see also Becker v. City Univ. of NY, 94 F. Supp. 2d 487, 490 (S.D.N.Y. 2000).
The Report correctly held that CUNY's protection under the Eleventh Amendment is not
precluded by any exceptions to the doctrine. 4 (Report, at 14-15.) The Individual Defendants, 5
Denise Dyce, John Siderakis, Carmelo Batista, and Robert Curry, are also immune from suit
under the Eleventh Amendment, as sovereign immunity extends to claims against state officials
for acts committed in their official capacities. Darcy v. Lippman, 356 F. App'x 434, 436-37 (2d

3

The Eleventh Amendment provides that: "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, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.
4

The three exceptions to sovereign immunity are: ( 1) the state has waived its immunity; (2) the State's
immunity is abrogated by a valid exercise of Congressional authority; or (3) under the Ex parte Young
doctrine, a state official may be sued in an action that is only seeking prospective injunctive relief. Barry
v. City Univ. of N. Y, 700 F. Supp. 2d 44 7, 452 (S.D.N. Y. 2010) (citing In re Deposit Ins. Agency, 492
F.3d 612, 617 (2d Cir. 2007)).
5

Defendant Morena is not immune, as he was not an employee of the State, but rather was an employee
of the Research Foundation of the City University of New York, a private, not-for-profit educational
corporation.

3

Cir. 2009); Ross v. State of NY, No. 15-cv-3286, 2016 WL 626561, at *3 (S.D.N.Y. Feb. 16,
2016).
Furthermore, the Report properly recommends dismissal of Plaintiffs Title VII and
ADEA claims against the Individual Defendants in their personal capacities, as neither Title VII
nor the ADEA provide for individual liability against the agents of an employer, including
individuals who hold supervisory responsibilities. (Report, at 16); see also Darcy, 356 F. App'x
at 436-37 (noting that Title VII and the ADEA do not create causes of action against individual
supervisors).
Accordingly, this Court accepts Magistrate Judge Parker's recommendation that
Plaintiffs AD EA and state law claims be dismissed pursuant to Rule 12(b)(1) as a matter of law
with prejudice. (Report, at 15.)

III.

PLAINTIFF'S DISCRIMINATION CLAIMS BASED ON AGE, RACE AND
COLOR
In assessing Plaintiffs claims based on age, race, and color, the Report properly held that

Plaintiff failed to exhaust all administrative remedies prior to asserting claims under Title VII
and the ADEA in a federal court. See Littlejohn v. NYC, 795 F.3d 297, 322 (2d Cir. 2015)
(quoting Williams v. NYC Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006)) ("Before bringing a
Title VII suit in federal court, an individual must first present 'the claims forming the basis of a
suit ... in a complaint to the EEOC or the equivalent state agency."'). In Plaintiffs New York
State Division of Human Rights ("NYSDHR") complaint, which was cross-filed with the EEOC,
there are no statements that can be read to be reasonably related to allegations of discrimination
based on age, race or color. (Report, at 17.) Having found that Plaintiff failed to exhaust his
administrative remedies as to those three claims before filing this action, the Report was correct

4

in recommending dismissal as to Plaintiff's discrimination claims based on age, race and color
with prejudice. (Report, at 18.)

IV.

PLAINTIFF'S GENDER DISCRIMINATION CLAIM

The Report properly held that Plaintiff failed to state a Title VII gender discrimination
claim. Plaintiff's Amended Complaint alleges disparate treatment between himself and two male
Campus Security Assistants.

(Blige Letter filed Jan. 28, 2016, ECF No. 6-2, at 3.) These

allegations does not create an inference of gender discrimination since they concern employees
of the same sex as Plaintiff. In construing the Amended Complaint liberally, Magistrate Judge
Parker also considered allegations made in the NYSDHR complaint, which was attached to the
Amended Complaint.

In the NYSDHR complaint, Plaintiff alleged that "two females were

involved in a physical altercation on the job" and were subsequently treated better than he was.
(Report, at 19.) Since Plaintiff failed to allege facts from which it is plausible to conclude that he
was "similarly situated in all material respects" to the females, the Report properly held that
Plaintiff failed to plead a gender discrimination claim. See Johnson v. Andy Frain Servs., Inc.,
638 F. App'x 68, 70 (2d Cir. 2016) ("plaintiff must show [he] was similarly situated in all
material respects to the individuals with whom [he] seeks to compare [himself! and that the
similarly situated comparators received better treatment.") (quoting Mandell v. Cty. of Suffolk,
316 F.3d 368, 379 (2d Cir. 2003)).

Given that Plaintiff is pro se, this Court accepts the

recommendation that Plaintiff's gender discrimination claim be dismissed without prejudice to
amend his complaint to attempt to allege sufficient facts to state a gender discrimination claim. 6
(Report, at 22, 27); see also Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991)

6

Plaintiffs discrimination claims based on arrest record and military status fail as a matter of law because
neither Title VII nor the ADEA prohibit discrimination on the basis of arrest record or military status.
See generally 42 U .S.C. § 2000-e-2(a); (Report, at 22-23 .)

5

(noting that a district court should not dismiss an action without granting leave to amend at least
once when the complaint gives "any indication that a valid claim might be stated" (internal
quotation marks omitted)).
V.

PLAINTIFF'S DEFAMATION, BREACH OF CONTRACT, AND UNFAIR
LABOR PRACTICE CLAIMS

The Report properly held that Plaintiff failed to establish a defamation claim against
Defendant Dyce, Human Resources ("HR"), and CUNY because the allegations are vague and
conclusory. (Report, at 23-25); see also Allen v. St. Cabrini Nursing Home, Inc., No. 00-cv8558, 2001 WL 286788, at *5 (S.D.N.Y. Mar. 9, 2001) ("plaintiff must allege the particular
words complained of as well as the time, place, and manner of the false statement, and specify to
whom it was made"), ajf'd, 64 F. App'x 836 (2d Cir. 2003).
Moreover, the Report correctly held that Plaintiffs breach of contract claim is barred.
(Report, at 25.) If Plaintiff intended to allege a stand-alone federal claim for breach of the CBA
under Section 301 of the Labor Management Relations Act ("LMRA"), the Report correctly
found that public employees, like Plaintiff, may not bring federal claims under Section 301 of the
LMRA. (Id.); see also Fordv. D.C 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009). If
Plaintiff intended to assert a breach of contract claim against the Individual Defendants, the
Report accurately determined that the action remains barred, as Plaintiff does not allege that the
Individual Defendants were a party to the CBA or a party to any other contract with Plaintiff,
thus failing to establish that the parties were in privity. (Report, at 26); see also Oberstein v.
SunPower Corp., No. 07-cv-1155, 2010 WL 1705868, at *4 (Apr. 28, 2010 E.D.N.Y. 2010)

(quoting Yucyco, Ltd. v. Republic ofSlovn., 984 F. Supp. 209, 215 (S.D.N.Y. 1997)).

6

Finally, the Report properly determined that Plaintiff failed to provide any factual support
for his unfair labor practice claim, as Plaintiff does not allege what specific labor practice he is
challenging or when the complained-of conduct occurred. (Report, at 26-27.)
Accordingly, this Court accepts Magistrate Judge Parker's recommendation that
Plaintiff's claims for defamation, breach of contract, and unfair labor practices be dismissed. (Id.
at 25, 27.)

VI.

CONCLUSION
Having adopted the Report in full, Defendants' motion to dismiss is GRANTED with

prejudice, with the exception for Plaintiff's gender discrimination claim, which is dismissed
without prejudice with leave to amend, if amendment would not be futile.
The Clerk of Court is directed to close the motions at ECF Nos. 26 and 39.

Dated: New York, New ;Y'ork
March
, 2017

MAR 2 1 2017
;
I

7

SO ORDERED.