Dimps v. Taconic Correctional Facility
Filing
71
OPINION & ORDER re: 49 MOTION to Dismiss . filed by Taconic Correctional Facility, NYS Department of Corrections and Community Supervision, 56 MOTION to Dismiss . filed by NYS Dept. of Civil Service. For the foregoin g reasons, Defendants' Motion to Dismiss is GRANTED in its entirety. All claims asserted against Defendants DOCCS, Taconic and DSC are deemed dismissed. The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 49 a nd 56, to mail a copy of this Opinion to pro se Plaintiff, and to show proof of service on the docket. (As further set forth in this Order) (Signed by Judge Nelson Stephen Roman on 3/20/2019) (cf) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHIRLEY DIMPS,
Plaintiff,
-againstTACONIC CORRECTIONAL FACILITY,
NEW YORK STATE DEPARTMENT
OF CORRECTIONS AND COMMUNITY
SUPERVISION, NEW YORK STATE
DEPARTMENT OF CIVIL SERVICE,
CSEA, INC.,
Defendants.
17-cv-8806 (NSR)
OPINION & ORDER
NELSONS. ROMAN, District Court Judge
On or about November 13, 2017, Plaintiff Shirley Dimps commenced this prose action
asserting claims, inter alia, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, the Age Discrimination in Employment Act
("ADEA''), Americans with Disabilities Act ("ADA"), New York State Human Rights Law
("NYSHRL"), New York City Human Rights Law ("NYCHRL"), and a breach of contract
claim. Plaintiff alleges that over the past decade she has been denied promotions on the basis of
race, age, and disability and was subjected to a hostile work environment and retaliated against
by her employer the New York State Department of Corrections and Community Service
("DOCCS") while employed at the Taconic Correctional Facility ("Taconic"). 1 Plaintiff also
asserts similar claims of discrimination based on race, age and disability against New York State
Department of Civil Service ("DCS"), the state agency responsible for administering the civil
service promotional exams. Herein after, Defendants DOCCS, Taconic and DCS will
collectively be referred to as the "Defendants." Before the Court are Defendants' Motion to
1
Plaintiff's initial complaint was filed on November 13, 2017. (ECF No. 1). Plaintiff subsequently filed an
Amended Complaint on January 29, 2018. The Amended Complaint is deemed the operative complaint for the
purposes of this motion.
1
Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”)
and 12(b)(6) (“Rule 12(b)(6)”). (ECF Nos. 26, 56 For the following reasons, Defendants’ Motion
is GRANTED.
BACKGROUND
Plaintiff is a 64 year old African American female who suffers from hearing loss. (Am.
Compl. at 4, ECF No. 4.) She has been working at Taconic for over 10 years. (Am. Compl. ¶ 3)
Despite suffering from hearing loss, Taconic failed to provide Plaintiff with an accommodation.
(Id. at ¶ 1) She alleges that due to the discriminatory practices of the Defendants she has been
passed over for promotions due to age, race, and disability. (Id. at ¶ 2-3) Prior to commencing
the instant lawsuit, Plaintiff filed a complaint with the EEOC by a letter dated August 3, 2016.
(See Am. Compl. 13 of 23) Plaintiff received notice of her right to sue from the EEOC on August
21, 2017. (See id. at 17-18 of 23).
STANDARD OF REVIEW
A.
Rule 12(b)(6)
To withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain
“sufficient factual matter, accepted as true, ‘to state a claim that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Id. While the court must accept all of the allegations in the
complaint as true, the court is not “bound to accept as true legal conclusions couched as factual
allegations.” Id. A plaintiff “armed with nothing more than conclusions” does not unlock the
doors to discovery. Id. Determining whether a complaint states a plausible claim for relief is a
2
context-specific task for the court “that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. However, the “submissions of a pro se litigant must
be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.’”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). In deciding a motion to
dismiss, a motion “court may consider the facts as asserted within the four corners of the
complaint together with the documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev.
Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotation marks and citation omitted). Courts
also may consider “matters of which judicial notice may be taken” and “documents either in
plaintiff [’s] possession or of which plaintiff[] had knowledge and relied on in bringing suit.”
Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
B.
Rule 12(b)(1)
The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction
is “substantively identical” to the standard for dismissal under 12(b)(6). Lerner v. Fleet Bank,
N.A., 318 F.3d 113, 128 (2d Cir. 2003). Under Rule 12(b)(1), “a case is properly dismissed for
subject matter jurisdiction… when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a
12(b)(1) motion to dismiss, the court may refer to evidence outside the pleadings. Id. “The
plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” Id. In assessing whether there is subject matter jurisdiction, the Court
“must accept as true all material facts alleged in the complaint and draw all reasonable inferences
in the plaintiff’s favor.” Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009). “The party
invoking federal jurisdiction bears the burden of establishing that jurisdiction exists.” Id.
3
DISCUSSION
Defendants first argue that Taconic should be dismissed because it is not a distinct legal
entity. (Mem. of Law in Support of Mot. to Dismiss Am. Compl. (“Def. Mot.”) 4, ECF No. 50)
Second, the Defendants argue that Plaintiff’s Title VII claims fail to state a plausible claim upon
which relief can be granted. (Def. Mot. 6-10) Finally, the Defendants argue that the Plaintiff’s
non-Title VII claims, including the ADA, ADEA, 42 U.S.C. § 1981 and state law claims are
barred by the Eleventh Amendment. (Def. Mot. 5-6) This Court agrees.
I.
Taconic Correctional Facility
Defendants assert that Taconic should be dismissed as a matter of law because it is not a
distinct legal entity capable of being sued. (Def. Mot. 4.) In a letter seeking to add respondents to
the August 2016 EEOC charge, Plaintiff herself contends that Taconic is a facility under DOCCS
which is governed by DCS. (See Am. Compl. 21 of 23.) As a state correctional facility has no
separate legal status from the agency that operates it, the Plaintiff herein is an employee of
DOCCS who is assigned to Taconic. See Rivera v. Goord, 119 F. Supp. 2d 327, 336 (S.D.N.Y.
2000); Trail v. New York State Dep’t of Corr. & Cmty. Supervision, No. 17-CV-7273, 2018 U.S.
Dist. LEXIS 131163, at *2-*3 (S.D.N.Y. Aug. 3, 2018) (dismissing Taconic Correctional
Facility as a defendant because it is not a distinct legal entity); Davis v. City of New York, No.
96-CV-2998, 1998 U.S. Dist. LEXIS 668, at *6 (S.D.N.Y. Jan. 20, 1998) (dismissing claims
against a correctional facility because it is not a “suable entity”); 7 N.Y. Comp. Codes R. &
Regs. § 100.82 (2019). 2 Accordingly, Taconic is not a proper entity subject to being sued and all
claims asserted against it must be dismissed.
2
See also Alfano v. Costello, 294 F.3d. 365, 369 (2d Cir. 2002) (describing DOCS as a correction officer’s
employer); Eusanio v. Wende C.F., No. 97-cv-0023, 1997 WL 374209, at *1 (W.D.N.Y. June 17, 1997) (dismissing
an ADA complaint against a correctional facility because the plaintiff’s employer was “not [the facility] but rather
DOCS”).
4
II.
Exhaustion
Plaintiffs asserting Title VII, ADA, or ADEA claims must first exhaust their
administrative remedies by filing a complaint with the EEOC or the equivalent state agency and
obtainment of a notice of right-to-sue before filing in federal court. Williams v. N.Y. City Hous.
Auth., 458 F.3d 67, 69 (2d Cir. 2006); 42 U.S.C. § 2000e-5(e)(1). 3 Exhaustion of remedies is a
precondition to suit, rather than a jurisdictional requirement. Young v. Lord & Taylor, LLC, 937
F. Supp. 2d 346, 352 (E.D.N.Y. 2013) citing Francis v. City of New York, 235 F.3d 763, 768 (2d
Cir.2000). Generally, a plaintiff may only pursue those claims in a district court complaint which
were either included in or are “reasonably related to” the allegations contained in her EEOC
charge(s). Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001). Claims “reasonably
related” to the EEOC charge(s) include: (1) where the conduct complained of would fall within
the “scope of the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination”; (2) a claim “alleging retaliation by an employer against an employee
for filing an EEOC charge”; and (3) where the “plaintiff alleges further incidents of
discrimination carried out in precisely the same manner alleged in the EEOC charge.” Young v.
Lord & Taylor, LLC, 937 F. Supp. at 352 citing Butts v. City of New York Dep't of Hous. Pres. &
Dev., 990 F.2d 1397, 1401 (2d Cir.1993), superseded by statute on other grounds Hawkins v.
1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998) and Malarkey v. Texaco, Inc., 983 F.2d
1204, 1208 (2d Cir.1993).
Claims sounding in discrimination pursuant to Title VII, ADA and ADEA are deemed
timely if they are filed with the administrative agency within 300 days of an alleged unlawful
3
See also Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (“Under both Title VII
and ADEA, a claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and
obtained a right-to-sue letter.); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (stating
ADA Title I incorporates various provisions from Title VII including administrative-exhaustion with the EEOC).
5
practice. See AMTRAK v. Morgan, 536 U.S. 101, 109 (2002); Williams, 458 F.3d at 69 (stating
that a Title VII claimant must make an EEOC filing within 300 days of the alleged
discriminatory conduct); Troeger v. Ellenville Cent. Sch. Dist., 523 F. App’x. 848, 851 (2d Cir.
2013) (“It is undisputed that a claimant pursuing claims under the ADA must file charges with
the EEOC within 300 days of the purportedly unlawful acts.); Harris v. City of New York, 186
F.3d 243, 247 (2d Cir. 1999) (same); 42 U.S.C. § 2000e-5(e)(1); Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 237–38 (2d Cir. 2007) (A plaintiff seeking to recover under the
ADEA must file a discrimination charge with a state agency within 300 days of the occurrence of
the allegedly unlawful employment practice); 29 U.S.C. § 626(d)(2).
Plaintiff asserts she filed her complaint with the EEOC on August 3, 2017. 4 (Am. Compl.
at 6.) On August 16, 2017, the EEOC issued Plaintiff notice of her right to sue. (Id. at 17-18 of
23) Her right to sue letter indicates that she alleged claims of discrimination under Title VII, the
ADA and ADEA against Taconic. Defendants contend that the Plaintiff’s August 2017 EEOC
charge is untimely because her amended complaint refers to over a decade of alleged
misconduct. (Def. Mot. 7.) This Court agrees.
The Court notes that Plaintiff incorrectly identified Taconic, an entity not subject to being
sued, as her employer in her complaint letter to the EEOC. The EEOC’s right to sue letter
indicates Plaintiff made complaints against Taconic alleging discrimination in violation of the
ADA, ADEA and Title VII. The EEOC documents indicate Plaintiff did not name DOCCS or
4
The Court notes that the Plaintiff did not include the August 2016 EEOC charge in her Amended Complaint which
would have provided the specific claims against the Defendants. However, the right-to-sue letter indicates that the
EEOC failed to find Taconic in violation of the ADA, ADEA, or Title VII. (See ECF. No. 4-18). Plaintiff’s amended
complaint also includes a letter to the EEOC dated Sept. 8, 2017 indicating that she alleged discrimination on the
basis of Title VII, ADA, and ADEA. (See ECF. No. 4-21) Thus, liberally construing the Plaintiff’s complaint and
granting leniency to her pro se status, the Court finds that the Plaintiff alleged Title VII, ADA, and ADEA claims in
her August 2016 EEOC charge.
6
DSC in her charge letter. In her amended complaint, Plaintiff makes multiple conclusory
allegations of discrimination on the basis of race, age, and disability. Plaintiff broadly asserts that
she has been passed over for promotions “for nearly/more than a decade” in favor of younger
employees but fails to specify any jobs to which she applied and was rejected. (See Am. Compl.
¶ 2.) She claims that the DCS civil service exam is discriminatory and alleges that the she has
been a victim of the “One in Three Rule” which allows employers to promote lower-scoring
individuals. (See Am. Compl. ¶ 8-10) She identifies DSC as the state authority responsible for
developing and administering examinations for civil service positions. (Id.) She does not,
however, identify DSC as her employer. She also fails to provide any other relevant facts such as
which civil service exam(s) she has taken, her exam results, the positions she has applied for,
whether or not she was qualified, her eligibility, or any details about the individuals that were
allegedly promoted in her stead. (Id.)
Plaintiff alleges she made an accommodation request for her hearing loss, was denied an
accommodation, and was subjected to retaliation. (Am. Compl. ¶ 1) She provides no other
information supporting this claim such as when she made the request for an accommodation, the
type of accommodation requested, to whom she made the request, and what if any response she
received from her employer. Plaintiff’s retaliation claim for seeking an accommodation is
likewise conclusory in nature, failing to provide sufficient factual support. Plaintiff does not
provide any date(s), how she was retaliated against, nor does she provide facts to show a causal
connection between the plaintiff’s protected activity and the adverse employment action.
Plaintiff’s failure to provide dates is problematic. Without the benefit of the dates, it is
impossible to determine whether any of the claims alleged in her August 3, 2016 EEOC charge
letter were timely. To the extent Plaintiff asserts claims pursuant to ADA, ADEA and Title VII
7
(and related claims) that accrued more than three (300) days before August 3, 2017, the Court
finds that Plaintiff failed to timely exhaust her administrative remedies for said claims. Similarly,
to the extent Plaintiff failed to name DOCCS as a defendant in her EEOC charge letter, the Court
finds Plaintiff failed to exhaust her administrative remedies.
A.
Title VII: Failure to Promote
In order to establish a claim for the failure to promote, a Title VII Plaintiff must
demonstrate: (1) that she is a member of a protected class; (2) that she applied and was qualified
for the position in question; (3) that she was rejected for the position; and (4) that the position
remained open and the employer continued to seek applicants having the plaintiff’s
qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Brown v. Coach
Stores, 163 F.3d 706, 709 (2d Cir. 1998). If the plaintiff succeeds in establishing a prime facie
case, the burden then shifts to the defendant “to articulate some non-discriminatory reason for
the plaintiff’s rejection.” McDonnell Douglas, 411 U.S. at 802. Should the defendant carry this
burden, the plaintiff has an opportunity to prove that the defendant’s reasons were illegitimate
and a pretext for discrimination. Id. at 804.
The Defendants do not argue that Plaintiff meets the first element of her claim. Plaintiff is
an African American female, approximately sixty-four (64) years old and purports to suffer from
hearing loss in both ears. Defendants contend that Plaintiff is unable to meet the requisite four
remaining elements. (Def. Mot. 7.) Plaintiff states in conclusory fashion that she was denied
unidentified promotions due to her age because of Defendants’ bias toward younger employees.
(See Am. Compl. ¶ 3) However, Plaintiff fails to identify any of the positions she applied for, the
exams she purportedly took and passed, how she was qualified, if and when she was rejected for
a position, the individuals that were promoted in her stead and their age, or whether the
8
position(s) remained open and Defendants continued to seek applicants having her qualifications.
Thus, her allegations fail to meet the requisite elements to establish a plausible claim for failure
to promote. Accordingly, Plaintiff’s claim must be dismissed.
B.
Title VII: Hostile Work Environment
In order to prevail on a hostile work environment claim, a Plaintiff must demonstrate:
“(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,’ and (2) that a specific basis
exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365,
373 (2d Cir. 2005). The test is both objective and subjective. See id. at 374; Harris v. Forklift
Sys., 510 U.S. 17, 21 (1993). “The misconduct must be ‘severe or pervasive enough to create an
objectively hostile or abusive work environment,’ and the victim must also subjectively perceive
that environment to be abusive.” Alfano, 294 F.3d at 374 citing Harris, 510 U.S. at 21. Further,
in order for incidents to be deemed pervasive, they must be more than episodic and “sufficiently
continuous and concerted.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); Kotcher
v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992); Lopez v. S.B. Thomas,
Inc., 831 F.2d 1184, 1189 (2d Cir. 1987). Isolated acts will not meet the threshold unless the
single act is “severe enough” to establish a hostile working environment. Brennan v.
Metropolitan Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999). Thus, “a plaintiff alleging a hostile
work environment ‘must demonstrate either that a single incident was extraordinarily severe, or
that a series of incidents were sufficiently continuous and concerted’ to have altered the
conditions of her working environment.” Alfano, 294 F.3d at 374 citing Cruz v. Coach Stores,
Inc., 202 F. 3d 560, 570 (2d Cir. 2002).
9
The Defendants assert that the Plaintiff’s claim should be dismissed because she fails to
allege any severe or pervasive harassment or connect any alleged harassment to her race, age, or
disability. (Def. Mot. 8) This Court agrees. The Plaintiff’s amended complaint is unsupported by
any factual allegations giving rise to her claim. Plaintiff merely states that she has been “treated
[disparately] than other similar[ly] situated employees at TCF who were not African
Americans.” (See Am. Compl. at ¶ 2) Accordingly, the Court finds that Plaintiff failed to
sufficiently plead a plausible hostile work environment claim and it must be dismissed.
C.
Title VII: Retaliation
In order to establish a claim for retaliation under Title VII, the Plaintiff must allege: (1)
that she engaged in a protected activity; (2) that the defendant knew she engaged in a protected
activity; (3) that the defendant took an adverse employment action against her; and (4) that there
was a causal connection between the plaintiff’s protected activity and the adverse employment
action. Jute v. Hamilton, 420 F.3d 166, 173 (2d Cir. 2005). “The term ‘protected activity’ refers
to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores,
Inc., 202 F.3d 560, 566 (2d Cir. 2000). Section 704(a) of Title VII, which contains both an
opposition and participation clause, makes it unlawful for an employer to retaliate against an
individual “because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” Townsend v. Benjamin Enters.,
679 F.3d 41, 48 (2d Cir. 2012); Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015)
(same); 42 U.S.C. § 2000e-3(a)). An actionable adverse employment action is “a materially
significant disadvantage with respect to the terms of the plaintiff’s employment.” Williams v.
R.H. Donnelly, Corp., 368 F.3d 123, 128 (2d Cir. 2004); see also Galabya v. New York Bd. of
10
Educ., 202 F.3d 636, 640 (2d Cir. 2000) (“A materially adverse change might be indicated by
termination of employment, a demotion evidenced by decrease in wage or salary, a less
distinguished title, a material loss of benefits… or other indices…unique to the situation).
Plaintiff broadly asserts that she faced retaliation due to her disability and
accommodation request. (Am. Compl. ¶ 1) The Defendants argue that the Plaintiff has failed to
identify her involvement in a protected activity or identify an individual that was part of the
alleged retaliatory decision to “pass over” her for promotions. (Def. Mot. 9) Further, Defendants
contend there are no facts showing a causal connection because the Plaintiff has failed to identify
a time frame for these actions. (Id.) This Court agrees. Her claim is merely asserted in a
conclusory fashion. Thus, the retaliation claim must be dismissed.
III.
ADA: Failure to Accommodate Claim
While the Court has already found that the Plaintiff failed to timely exhaust her ADA
claim, it will nevertheless explain why the Plaintiff’s amended complaint failed to sufficiently
plead a plausible claim for failure to accommodate. To establish a claim for failure to
accommodate, a plaintiff must allege “(1) [s]he is disabled within the meaning of the ADA; (2)
[her] employer is a covered entity; (3) [s]he could perform the essential functions of the job with
an accommodation; and (4) the defendants refused to provide such an accommodation despite
being on notice.” Fox v. Costco Wholesale Corp., No. 17-cv-0936, 2019 U.S. App. LEXIS 6714,
at *14 (2d Cir. Mar. 6, 2019); McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 9697 (2d Cir. 2009). For an impairment to meet the definition of “disability” under the ADA two
requirements must be met: the impairment must limit a major life activity and the limitation must
be substantial. Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005); 42 U.S.C. §
12102(2)(A). The EEOC defines “major life activities” as “functions such as caring for oneself,
11
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
Id. quoting 29 C.F.R. §1630.2(i); see also EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d
Cir. 2003) (same). The term “essential functions,” while not defined by statue, is generally
defined to mean “duties to be performed in the position in question, but not functions that are
merely ‘marginal.’” Kinneary v. City of New York, 601 F.3d 151, 156 (2d Cir. 2010) citing Stone
v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997).
The Plaintiff suffers from hearing loss in both ears (Am. Compl. 4) and states in a
conclusory fashion that the instant lawsuit stems from Defendant’s retaliation of her
accommodation request. (Am. Compl. ¶ 1) For purposes of the ADA, a disability is defined as “a
physical or mental impairment that substantially limits one or more major life activities of such
individual,” “a record of such an impairment;” or “being regarded as having such an
impairment.” 42 U.S.C. § 12102(1)(A)-(C). Hearing loss is major life activity within the
meaning of the ADA (see Fall v. New York State United Teachers, 289 F. App'x 419, 421 (2d
Cir. 2008)), however, Plaintiff does not indicate the extent of her hearing loss. Fall v. New York
State United Teachers, 289 F. App'x at 421 (2d Cir. 2008) (Granting of summary judgment to
defendant due to plaintiff failure to proffer evidence demonstrating the extent of her hearing loss
was substantial.) Her Amended complaint merely indicates she suffer from hearing loss in both
ears.
Even assuming Plaintiff’s claim of a hearing loss is sufficient to the extent that the facts
support a finding that her alleged disability is substantial, Plaintiff’s claims still fails. Plaintiff
does not identify facts about her position, what if any accommodation she requested, whether she
can perform the essential functions of her job with an accommodation and whether or not her
12
employer was put on notice of her disability. 5 Other than to state that Taconic and DOCCS
discriminated against Plaintiff due to disability (hearing loss), retaliated against her in response
to her request for an accommodation, the Amended Complaint is void of any facts supporting a
plausible claim. Accordingly, Plaintiff’s failure to accommodate claim must be dismissed.
IV.
ADEA: Age Discrimination Claim
The ADEA makes it unlawful for an employer to discriminate against an individual aged
40 or older “with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); 29
U.S.C. § 623(a)(1). In order to establish a claim under the ADEA, a plaintiff must show: (1) she
was within the protected age group; (2) she was qualified for the position at issue; (3) she
suffered an adverse employment decision, and (4) the decision/discharge took place under
circumstances giving rise to an inference of discrimination. 6 Id.; Austin v. Ford Models, Inc., 149
F.3d 148, 152 (2d Cir. 1998); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). The
evidence necessary to satisfy this initial burden is minimal. Carlton v. Mystic Transp., Inc., 202
F. 3d 129, 134 (2d Cir. 2000).
While the Plaintiff meets the first element, she fails to satisfy the remaining pleading
requirements. 7 The Plaintiff asserts that she was denied promotions due to her age for over a
decade. (Am. Compl. ¶ 2) However, Plaintiff fails to indicate whether she passed the requisite
5
See Fox v. Costco Wholesale Corp., No. 17-cv-0936, 2019 U.S. App. LEXIS 6714, at *14 (2d Cir. Mar. 6, 2019)
(dismissing Plaintiff’s failure to accommodate claim because the Defendants were not put on notice that Plaintiff’s
neurological condition would be worsened by being transferred to a position he previously held); Ray v. Weit, 708
Fed. App’x. 719, 721 (2d Cir. 2017) (finding that dismissal of the Appellant’s claim was proper because the
accommodations she requested had nothing to do with the ability to perform the essential functions of her job).
6
The McDonnell-Douglas burden shifting analysis (discussed in Part II. A supra) is “the Supreme Court’s own
example of facts sufficient, in the Supreme Court’s own words to give rise to an inference of unlawful
discrimination.” Fisher v. Vassar College, 114 F.3d 1332, 1367, n.1 (2d Cir. 1997); see also Byrnie v. Town of
Cromwell Bd. of Educ., 24 F.3d 93, 101 (2d Cir. 2001) (stating that a plaintiff alleging a violation of either age or
sex discrimination utilizes the same McDonnell-Douglas burden shifting framework).
7
Plaintiff is 64 years old. (See Am. Compl. at ¶ 3)
13
civil service exams. (Am. Compl. ¶ 9) The amended complaint lacks any specifications regarding
the promotions such as what the position was, when she applied, how she was qualified, or any
facts regarding the individuals that were promoted. Lastly, Plaintiff fails to assert facts, other
than in conclusory fashion, that the decision not to promote was made under circumstances
giving rise to an inference of discrimination. Accordingly, the Court finds that the ADEA claim
must be dismissed.
V.
42 U.S.C. § 1981
To establish a claim under 42 U.S.C. § 1981, plaintiffs must allege: (1) that they are a
member of a protected class; (2) the defendant’s intent to discriminate on the basis of race and;
(3) discrimination concerning one of the statutes enumerated activities. Brown v. City of
Oneonta, 221 F.3d 329, 339 (2d Cir. 1999). Under Section 1981, only intentional racial
discrimination is prohibited. Id.; see also Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988)
(“Essential to an allegation under Section 1981 are allegations that the defendant’s acts were
purposefully discriminatory and racially motivated.”) (internal citations omitted). The statutes’
“enumerated activities” include rights “to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all the laws and proceedings for the security of
persons and property.” Brown, 221 F.3d at 339 quoting 42 U.S.C. § 1981. To survive a motion to
dismiss, a plaintiff asserting a 42 U.S.C. § 1981 claim must specifically allege the events claimed
to constitute intentional discrimination as well as circumstances giving rise to a plausible
inference of racially discriminatory intent. Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 272–73
(S.D.N.Y. 2007); Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir.1994); see also Albert v.
Carovano, 851 F.2d 561, 571–72 (2d Cir.1988). Mere naked assertions lacking facts upon which
14
a court would find a violation of discrimination fails to state a claim under Rule 12(b)(6). See
Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).
Plaintiff asserts in a conclusory fashion that Defendants discriminated against her on the
basis of race by treating her disparately than similarly situated employees that were not African
American. (Am. Compl. ¶ 2) However, she fails to alleged additional facts supporting an
inference of intentional discrimination by Defendants. Moreover, Plaintiff fails to allege
discrimination based on an enumerated activity. Accordingly, the Court finds that the Plaintiff
has failed to plead a plausible claim under 42 U.S.C. § 1981 and thus must be dismissed.
VI.
NYSHRL and NYCHRL Claims
The Plaintiff also raises Title VII, ADA, and ADEA claims under New York State
Human Rights Law, Executive Law § 296 and New York City Human Rights Law,
Administrative Code § 8-107 et seq. (Am. Compl. ¶ 4-5) The pleading standards for employment
discrimination claims raised under NYSHRL mirror the pleading requirements under Title VII,
the ADA, and ADEA. See Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2
(2d Cir. 2010) (“We review discrimination claims brought under NYSHRL according to the
same standards that we apply to Title VII discrimination claims.”); George v. Prof’l Disposables
Int’l, Inc., No. 15-CV-03385, 2016 U.S. Dist. LEXIS 72912, at *24 (S.D.N.Y. June 1, 2016)
(“The elements of a failure to accommodate claim under the NYHRL mirror those of the ADA”);
Sutera v. Schering Corp., 73 F.3d 13, 16, n.2 (2d Cir. 1995) (explaining that ADEA claims under
NYHRL are analyzed using the same McDonnell Douglas burden-shifting framework). As such,
the Court need not undertake a separate analysis of Plaintiff’s state law discrimination claims as
their viability is the same as her federal claims. Further, because the Court finds the Plaintiff
15
failed to plead plausible federal or state causes of action, her NYCHRL claim is also dismissed.
Accordingly, the Court finds that the Plaintiff’s state and municipal claims are dismissed.
VII.
Breach of Contract Claim
In order to state a breach of contract claim under New York law in federal court the
plaintiff’s complaint need only allege (1) the existence of an agreement; (2) adequate
performance of the contract by the plaintiff, (3) breach by the defendant, and (4) damages. See
Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996); Tagare v. NYNEX Network Sys. Co.,
921 F. Supp. 1146, 1149 (S.D.N.Y. 1996). In her Amended Complaint, Plaintiff asserts “[t]he
Breach of Contract under Pendant [Supplemental] Jurisdiction. Related claims under New York
Law…. 8 (See Am. Compl. ¶ 1) Additionally, in the prayer for relief section, she seeks a
declaratory judgment that Defendants breached their “Contract of Implied Duty of Good Faith
and Fair Dealing.” (Am. Compl. 6A-e), To the extent Plaintiff attempts to allege a breach of
contract claim, such claim fails. Plaintiff does not allege any other facts supporting each of the
elements of a contract cause of action. Plaintiff does not identify which, if any of the named
Defendants breached their duty, whether there was adequate performance by Plaintiff, which acts
constitute a breach, and which agreement.
VIII. Immunity from Non-Title VII Claims
The Defendants assert that the State and its agencies are immune from the Plaintiff’s
ADA, ADEA, 42 U.S.C. § 1981, State and City Human Rights Law, and breach of contract
claims. (Def. Mot. 5) Defendants do not contest that the Plaintiff’s claims arise under federal
law. (Reply Mem. of Law in Support of Mot. to Dismiss Am. Compl. 2, ECF No. 61)
8
The Plaintiff seems to suggest that the Court has supplemental jurisdiction over her contract claim without
providing any additional facts. (See Am. Compl. ¶ 1)
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The Eleventh Amendment bars claims by an individual against a state in federal court
absent waiver or abrogation. Edelman v. Jordan, 415 U.S. 651, 673 (1964); Fitzpatrick v. Bitzer,
427 U.S. 445, 451-52 (1976). Immunity applies to claims arising under state and federal law in
the absence of a state statue explicitly waiving the states’ immunity to suit in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). This immunity “extends
beyond the states themselves to state agents and state instrumentalities that are, effectively, arms
of the state.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).
To determine whether Congress properly abrogated states’ Eleventh Amendment
Immunity, two questions are asked: (1) did Congress “unequivocally express its intent to
abrogate immunity?” and (2) did Congress act pursuant to constitutional authority? Seminole
Tribe v. Florida, 517 U.S. 44, 55 (1996). Regarding the ADEA, the Supreme Court found the
answer to the first question to be “yes,” stating the plain language of the ADEA “clearly
demonstrates Congress’ intent to subject the States to suit for money damages at the hands of
individual employees.” McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001) citing Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 74 (2000). However, in applying a “congruence and
proportionality” test, the Court found the answer to the second question to be “no” and that states
may discriminate on the basis of age if it is rationally related to a legitimate state interest because
age is not a suspect class. Id. at 91. The following term, the Supreme Court held that Congress
did not act within its constitutional authority by subjecting States to suits in federal court for
money damages under the ADA. 9 Bd. of Trs. v. Garrett, 531 U.S. 356, 374 (2001).
In regard to the NYSHRL claim, “New York has not waived its sovereign immunity from
9
The Plaintiff’s amended complaint requests damages “retroactive to the start date of the unlawful practices and to
otherwise render her whole for all and any losses sustained and suffered as a result of Defendants unlawful
employment practices.” (Am. Compl. 6A-g)
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ADA, § 1981 ... or [New York State Human Rights Law] claims in federal court ... nor has
Congress abrogated state sovereign immunity from discrimination claims brought pursuant to the
ADA or§ 1981." Jackson v. Battaglia, 63 F.Supp.3d 214,220 (N.D.N.Y. 2014) (citing collected
cases). Similarly, the Court does not have jurisdiction over the NYCHRL claim because the city
does not have the authority to abrogate the State's sovereign immunity and the State has not
consented to suit in federal court under NYCHRL. Feingold v. New York, 366 F.3d 138, 149 (2d
Cir. 2004).
All of Plaintiffs claims have been dismissed due to Plaintiffs failure to provide facts
supporting essential elements of her claims warranting a finding of plausibility. Nevertheless, the
Court finds that the Defendants would be entitled to dismissal based on qualified immunity for
Plaintiffs ADA, ADEA, 42 U.S.C. § 1981, state, and municipal human rights law, and breach of
contract claims as against the DOCCS and DSC.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED in its entirety.
All claims asserted against Defendants DOCCS, Taconic and DSC are deemed dismissed. The
Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 49 and 56, to
mail a copy of this Opinion to pro se Plaintiff, and to show proof of service on the docket.
Dated: March 20, 2019
White Plains, New York
SO ORDERED:
NELSON S. ROMAN
United States District Judge
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