Nwabue v. Suny at Buffalo/University Medical Services et al
Filing
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DECISION AND ORDER GRANTING Defendant's 4 Motion to Dismiss. Signed by William M. Skretny, Chief Judge U.S.D.C. on 10/30/2011. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROGERS NWABUE,
Plaintiff,
v.
DECISION AND ORDER
10-CV-163S
SUNY AT BUFFALO/UNIVERSITY
MEDICAL SERVICES, JOHN YEH, M.D.,
ROSEANNE BERGER, M.D., and
JANE HARSZLAK, PH.D.
Defendants.
1.
Pro se Plaintiff, Rogers Nwabue, brings this action alleging that Defendant,
State University of New York at Buffalo Medical School (“UB”), discriminated against him
in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
(“ADEA”).1,2 Presently before this Court is UB’s Motion to Dismiss under Fed R. Civ. P.
12(b)(1). For the following reasons, that motion is granted.
2.
Cognizant of the distinct disadvantage that pro se litigants face, this Court
has read Nwabue’s submissions carefully and liberally, and has interpreted them to raise
the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92
S. Ct. 594, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
1
As required by the ADEA, Nwabue first lodged his com plaint with the Equal Em ploym ent
Opportunity Com m ission (“EEOC”). After conducting an investigation, the EEOC was unable to conclude
that UB had violated the ADEA. It issued Nwabue’s “Right to Sue” letter on Novem ber 27, 2008. (Docket
No. 1.)
2
Nwabue initially brought this action against the three additional defendants found in the caption,
however, District Judge Richard J. Arcara, of New York's W estern District, in an April 12, 2010 Decision
and Order, dism issed the individual defendants from this action. (Decision and Order, Docket No. 3.)
Further, Judge Arcara declined to exercise supplem ental jurisdiction over Nwabue's state law claim s
against the individual defendants, leaving only the ADEA claim against UB. (Id.)
3.
Nwabue’s claim arises out of his termination and perceived demotion as a
medical school resident at UB in the Obstetrics and Gynecology Department in the years
2008 and 2009. (Facts of Complaint (“Compl.”), ¶ 1; Docket No. 1.) Nwabue claims that UB
unlawfully terminated him because of his age, claiming that “Defendant”3 told him that his
“age is the major factor mitigating against your coming to our program.” (Compl., ¶ 6.)
4.
It appears that Nwabue’s troubles began when UB sought to insert him into
the “Post-Graduate Year 2" program, instead of the “Post-Graduate Year 3" program, for
which Nwabue believed he was qualified due to prior education and work experience at a
different institution. He alleges that although UB admitted him into the program, it did so
reluctantly and only because he was the lone candidate. (Id.) As a result, according to
Nwabue, UB made the program increasingly difficult for him to complete, putting barriers
in the way of his advancement, including, inter alia, stealing records from his file (Compl.,
¶ 16), performing FBI background checks (Compl., ¶ 2), cancelling speciality training
sessions (Compl., ¶ 13), consistently disrupting his studies (Compl., ¶ 16), forcing him to
work in excess of eighty hours per week (Compl., ¶ 10), and threatening termination
(Compl., ¶ 17).
5.
Upset with these perceived discriminatory acts, he was instructed to take his
complaints to Jane Harszlak, who apparently provides a type of supervisory function for
UB. (Compl., ¶ 19.) Nwabue claims that Harszlak admitted that UB had committed “gross
violations and discriminatory actions” but that she failed to act on this information. (Compl.,
¶ 20.) Subsequently, Nwabue alleges that UB undertook various actions in retaliation for
3
Nwabue uses the title “Defendant” indiscrim inately throughout his com plaint. It is unclear to
whom he intends to refer.
2
his complaints to Harszlak. Nwabue alleges that Harszlak sent him an email disclosing
UB’s intention to terminate him (Compl., ¶ 22); thereafter he was placed on probation and
eventually terminated after a hearing on the matter. (Compl., ¶¶ 22-27.) Nwabue alleges
that the harassment and discrimination continued after his discharge: he claims that UB
fraudulently withdrew funds from his HSBC bank account (Compl., ¶ 29), replaced certain
medical achievements on Google with an advertisement for a criminal background check
company (Compl., ¶ 30), and blocked his efforts at obtaining other employment in the
medical field. (Compl., ¶ 31.)
6.
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's
age.” 29 U.S.C. § 623(a)(1). UB argues that this Court lacks subject matter jurisdiction over
Nwabue’s claim because, as an entity of the state, it is protected from suit by the Eleventh
Amendment, which provides:
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.
7.
It is well settled that the Eleventh Amendment bars suits against states and
state agencies. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100-02,
104 S. Ct. 900, 908-909, 79 L. Ed. 2d 67 (1984); Jones v. New York State Div. of Military
& Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999). The Eleventh Amendment “renders an
unconsenting state immune from lawsuits in federal court brought by that state’s own
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citizens or citizens of another state.” A.A. v. Bd. of Educ. of the Cent. Islip Union Free Sch.
Dist., 196 F.Supp.2d 259, 264 (E.D.N.Y. 2002) (citing Burnette v. Carothers, 192 F.3d 52,
57 (2d Cir. 1999); New York City Health & Hosp. Corp. v. Perales, 51 F.3d 129, 134 (2d
Cir. 1995)). Further, it bars “courts from exercising jurisdiction over lawsuits against a state
unless [the state] waive[s] sovereign immunity or Congress has expressly and validly
abrogated that immunity.” A.A., 196 F. Supp. 2d at 264 (citing Bd. of Trs. of Univ. of Ala.
v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001); Tuchman v.
Connecticut, 185 F. Supp.2d 169, 172 (D. Conn. 2002)).
8.
The Eleventh Amendment bars suits that seek either money damages, see
Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)
(recognizing that "a suit by private parties seeking to impose a liability which must be paid
from public funds in the state treasury is barred by the Eleventh Amendment"), or injunctive
relief, see Cory v. White, 457 U.S. 85, 90-91, 102 S. Ct. 2325, 72 L. Ed. 2d 694 (1982)
(holding that "the Eleventh Amendment by its terms clearly applies to a suit seeking an
injunction").
9.
However, Nwabue, relying on 42 U.S.C. § 2000d-7, which is a provision of
Title VI, argues that Congress explicitly abrogated the States’ sovereign immunity for any
state that chooses to accept federal financial assistance. Yet, Congress’ authority to annul
Eleventh Amendment immunity and permit suits under the ADEA was specifically
addressed by the United States Supreme Court in Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000). There, the Court held that the ADEA does
not abrogate the States' sovereign immunity because Congress, seeking to permit such
suits, exceeded its authority under Section 5 of the Fourteenth Amendment. Id.; see also
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McGinty v. New York., 251 F.3d 84 (2d Cir. 2001) (applying Kimel and finding that
sovereign immunity shielded the state of New York from a suit alleging violations of the
ADEA).
10.
Further, there is no question that UB is a legitimate arm of the state. The
Second Circuit has held that for Eleventh Amendment purposes, the State University of
New York (“SUNY”) system, of which UB is a part, is an integral part of the state
government such that when it is sued, the State of New York is the real party. Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990). Moreover, the Second Circuit
recognizes that “SUNY has clearly not consented to suit in a federal forum.” Id. Thus, this
Court lacks subject matter jurisdiction over Nwabue’s ADEA claim and no equitable or legal
relief is available. See McGinty, 251 F.3d at 100 (finding that where it has been
successfully demonstrated that a defendant is entitled to sovereign immunity under the
Eleventh Amendment, federal courts lack subject matter jurisdiction over the case, and the
case must be “stricken from the docket”).
11.
Nwabue, in his memorandum of law (Docket No. 10), asserts that he is not
only bringing an ADEA claim, but also a Title VII retaliation claim, which requires a different
sovereign immunity analysis.4 Title VII does outlaw retaliatory actions in the employment
setting, but its scope is limited to discrimination that is based on an individual's “race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1); Desert Palace, Inc. v. Costa,
539 U.S. 90, 123 S. Ct. 2148, 2150, 156 L. Ed. 2d 84 (2003).
12.
4
Section 704(a) sets forth Title VII's anti-retaliation provision in the following
Nwabue checked only the ADEA box on his com plaint form . (See Com pl., p.1.)
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terms:
“It shall be an unlawful employment practice for an employer
to discriminate against any of his employees or applicants for
employment . . . 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.”
§ 2000e–3(a) (emphasis added).
13.
Because discrimination based on age is not contemplated under Title VII, the
sovereign immunity precepts outlined in Kimel (considering discrimination based on age)
are applicable, not the sovereign immunity analysis under Title VII (considering
discrimination based on race, color, religion, sex, or national origin). The material
differences between age discrimination and the type of discrimination found in Title VII
served as the foundation for the Supreme Court’s finding that Congress can, under Section
5 of the Fourteenth Amendment, abrogate the States’ sovereign immunity for the latter but
not the former. Compare Kimel, 528 U.S. at 649-50 (“In light of . . . the lack of evidence of
widespread and unconstitutional age discrimination by the States, we hold that the ADEA
is not a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. The
ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid”) with
Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976) (Section 5 of
the Fourteenth Amendment authorizes Congress to abrogate States’ sovereign immunity
under Title VII).
14. Further, Nwabue asserts no facts, even construed liberally, indicating that he
was discriminated against on account of anything other than his age. Therefore, UB is
entitled to sovereign immunity, this Court lacks subject matter jurisdiction, and UB’s motion
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to dismiss is accordingly granted.
IT HEREBY IS ORDERED, Defendant’s Motion to Dismiss (Docket No. 4) is
GRANTED.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: October 30, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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